FEDERAL COURT OF AUSTRALIA

SZDLA v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1048

MIGRATION – appeal from Federal Magistrates Court – parties agreed that Federal Magistrate’s judgment interlocutory in nature – leave to appeal required – application for leave to appeal brought out of time – further amended notice of appeal treated as application for enlargement of time to apply for leave to appeal and application for leave to appeal – appellants are a wife, a husband and a daughter – appellant wife was only applicant for protection visa with specific claims for refugee status – husband and child appellants applied as member of appellant wife’s family unit – appellant wife undertook to pass on all correspondence from Tribunal to husband and child appellants – invitation to Tribunal hearing addressed to appellant wife but referred to appellant husband and child as well – appellant bound to pass on invitation to appellant husband and child – whether failure of Tribunal to invite appellant husband and child individually in breach of ss 425 and 425A of Migration Act 1958 (Cth) – whether Tribunal’s finding that appellant wife’s treatment was not by reason of her religion was based on an unwarranted assumption – appeal dismissed

Migration Act 1958 (Cth) ss 425 and 425A

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Federal Court Rules 1976 (Cth)

SZDLA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCMA 722 affirmed

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 referred to

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

Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 referred to

Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 referred to

SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 cited

WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 discussed

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660 discussed

Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 referred to

WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 distinguished

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 cited

De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 referred to

Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 cited

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 cited

SZDLA AND SZDLB AND SZDLC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1558 OF 2004

CONTI J

2 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The further amended notice of appeal filed herein be treated as an application for an enlargement of time in which to file and serve an application for leave to appeal and as an application for leave to appeal.

2.                  The applications be dismissed.

3.                  The first and second appellants, the first and second applicants in the said applications, pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Background:

1                     This is an appeal from the reasons for judgment of Federal Magistrate Mowbray delivered on 7 October 2004, which dismissed as incompetent an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 17 October 2000.  The Tribunal affirmed a decision of a delegate of the Minister dated 12 May 1999 not to grant to the three appellants protection (Class XA) visas.  The appeal was heard by myself sitting alone with the prior approval of the Chief Justice.

2                     The appellants are Russian nationals who arrived in Australia on 17 March 1999.  The first and second appellants are respectively wife and husband.  The third appellant is their daughter.  On 16 April 1999, the following forms were filed by the appellants with the Department of Immigration and Multicultural and Indigenous Affairs:

(ii)                a ‘form B’ listing each the first, second and third appellants as persons included in the application for a protection (Class XA) visa (subclass 866); this form included a questionnaire for each appellant to answer and sign; the first appellant (the wife) answered that she has her own claims to be a refugee; the husband and child indicated that they did not have their own claims to be refugees; owing to the difference in their responses to that question, the form required the wife to complete a ‘form C’ and the husband and child to complete a ‘form D’;

(iii)               the wife filed a ‘form C’ application in which she outlined her specific claims to be a refugee; 

(iv)              the husband and daughter both filed ‘form D’ applications for protection visas which do not provide for the provision of information relating to any possible claim that they might have for refugee status, as is logical for those applying on the basis of their membership of a family unit;

As members of the same family unit, the fate of the husband and child’s applications depended on the outcome of the wife’s application, provided they each satisfied the remaining criteria in part 866 of Schedule 2 of the Migration Regulations.

3                     The appellant wife claimed to fear persecution in Russia for reasons of religion arising from her evangelistic activities as a Jehovah’s Witness.  She claimed that she had been involved in activities such as conducting Bible studies for school students, and had been directed to cease these activities by police.  The applicant claimed that when she continued her involvement in those activities she was forcibly admitted to a mental hospital and medicated against her will by the authorities. She claimed to have escaped and the family went into hiding before travelling to Australia. She added that if she returns to Russia, she fears that the military authorities and police will use their power to prevent her from resuming those activities. She further fears that she will be persecuted, and in particular, that she will again be forced into a mental institution.

The Tribunal’s decision

4                     An application for review of the delegate’s decision was lodged with the Tribunal on 8 June 1999.  The application identified the wife as the contact person for each of the appellants and included a signed undertaking by the wife to inform her husband and daughter of the contents of any communication from the Tribunal, and if necessary, reply on their behalf.

5                     On 9 June 1999 the Tribunal wrote to the wife at her nominated address for service.  The heading to the letter referred to each of the appellants and confirmed in bold text ‘[p]lease note that you must tell all persons named above about this letter, and, if they wish, reply to the Tribunal for them’.  The letter went on to advise that if the Tribunal could not make a favourable decision on the papers, it would invite ‘you’ to a hearing.

6                     On 3 July 2000, the Tribunal sent an invitation to the wife to the hearing, which was scheduled to take place on 14 August 2000.  The heading on that letter referred to each of the appellants and included an instruction to the addressee to ‘tell all persons named above about this letter and, if they wish, reply to the tribunal for them’.  On the ‘Response to Hearing Invitation’ form it was indicated by the wife that a separate hearing in respect of each applicant was not desired.  The ‘witness details’ section of the form, which enabled the invitee to nominate to the Tribunal persons who they wished to call as witnesses, remained uncompleted.  Despite an instruction requiring each person over the age of eighteen to complete a separate ‘Response to Hearing Invitation’ form, this was not complied with.  At the hearing, only the wife appears to have testified.  The wife did not make a request for the Tribunal to take into account evidence or to hear separate arguments from the second or third appellants.

7                     On 17 October 2000 the Tribunal affirmed the decision of the Minister’s delegate to refuse the appellants’ applications for protection visas.  Notwithstanding a number of inconsistencies between the wife’s initial claims and her evidence at the hearing, and her apparent evasiveness in answering some questions, the Tribunal found her to be a generally credible witness, at least in relation to her own experiences.  It accepted her evidence that she was a Jehovah’s Witness; that she and an associate had been detained by particular police officers for 24 hours in late January 1999 during which time she suffered a minor assault; and that she had been abducted in February 1999 by those same police officers and kept in a mental hospital for several days until she escaped with the assistance of her husband and his relative.  However, the Tribunal was not satisfied on the evidence before it that the wife’s admission to a mental hospital was motivated by reasons of religion.  The Tribunal relied for this finding on country information indicating that the Jehovah’s Witnesses are presently an officially recognised and well-subscribed religious organisation in Russia and that the previous systematic abuse of psychiatry under the Soviet regime had ceased.  The Tribunal also found that documentation submitted by the wife was general in nature and did not advance her claim that her admission to psychiatric care was as a direct result of her religious activities.  Those documents included two alleged summonses from the police to give evidence and a brief handwritten letter purportedly on psychiatric hospital letterhead dated 6 May 1999 and stating that the wife underwent a course of unspecified psychiatric treatment from 17 to 20 February 1999, ‘upon presentation by the authorities for internal affairs of Domonosovski District’ and that she ‘left without authorisation’.  The Tribunal drew particular attention to the inconsistency apparent in the wife being in a position to provide this handwritten letter whilst not purportedly being able to provide a medical certificate from the same hospital for her stated reason that she had been held there illegally. 

8                     In the alternative, the Tribunal found that even if the applicant had been detained and mistreated because of her religion, it was satisfied that sufficient mechanisms of State protection were available to protect the wife from any such persecution on her return to Russia.  In any event, the Tribunal was also not satisfied on the evidence that there was any ongoing interest in the wife by the authorities.

The Federal Magistrate’s decision

9                     The appellants filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 29 April 2004; some three and a half years after the Tribunal handed down its decision.  Before embarking on his reasons for judgment, his Honour observed that only the wife made specific claims under the Convention and dealt with the application on that basis.  The Federal Magistrate dismissed the appellants’ application on 17 October 2004 on the ground that it was incompetent by virtue of its being an application for review of a privative clause decision brought outside of the 28-day time limit specified in s 477(1A) of the Act.  In coming to this conclusion, his Honour was required to determine that the Tribunal had not committed jurisdictional error in reaching its decision which was therefore, by reason of s 474 of the Act, a privative clause decision.

10                  As in the appeal conducted in this Court, capable and experienced legal practitioners represented the appellants before the Federal Magistrate.

11                  The solicitor for the appellants submitted to the Federal Magistrate that the Tribunal failed to comply with s 425 of the Act in relation to the appellant husband and child, who were each not given a separate invitation (or at least were not separately identified as addressees in the letter of invitation) to appear to give evidence and to present arguments, and its decision was thereby vitiated by jurisdictional error.  An additional ground pleaded in the appellants’ application was that the Tribunal denied the wife natural justice, though this ground was not pressed at the hearing and the Federal Magistrate did not deal with it.

12                  The Federal Magistrate rejected the appellants’ contention that the Tribunal was in breach of s 425 by virtue of its alleged failure to extend an invitation to hearing to the husband and child.  His Honour accepted that the invitation extended by the Tribunal to each applicant for a protection visa ‘must not be a hollow shell or an empty gesture’ referring to Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33] wherein the Full Federal Court cited Mazhar v Minister for Immigration (2000) 183 ALR 188, but observed that the statutory obligation is now more limited by virtue of the 1998 amendment to the Act, referring to Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472. 

13                  After reviewing the relevant provisions of the Act concerning invitations to hearings and methods of communication (ss 425(1), 425A and 441A) and the above authorities, his Honour stated that the question whether there was an invitation required an examination of the evidence before him.  His Honour found that, taken as a whole, while the wording in the standard form of correspondence could have been improved, it was clear that all the correspondence related to the three appellants, not just the appellant wife.  His Honour further found that, from the beginning, the three appellants had been treated together as one.  The invitation was not a ‘hollow shell or empty gesture’.  His Honour found that it would be overly technical in the circumstances of this case to accept the applicant’s contentions.  Indirect support for this approach was found in a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359.  His Honour was satisfied that the correspondence from the Tribunal inviting attendance at a hearing was directed to all three appellants and that s 425 had not thereby been breached.

14                  Consequent upon his Honour being unable to find any grounds to substantiate the appellants’ claims that the Tribunal had fallen into jurisdictional error, the application was dismissed as incompetent pursuant to s 477(1A) of the Act.

The current appeal in the Federal Court and the appellants’ submissions raised in relation thereto

15                  On 26 November 2004, solicitors for the Minister filed a notice of objection to competency in respect of the purported appeal on the ground that the judgment of the Federal Magistrate was interlocutory in nature and no leave had been sought or obtained to appeal from it by the appellants.  The Minister submitted that the judgment was interlocutory because the Federal Magistrate had dismissed the appellants’ application on the ground of incompetency.  Counsel for the appellants does not appear to have disputed that description of the basis of the Federal Magistrate’s judgment.  On 3 December 2004 the appellants filed a notice of motion seeking an enlargement of time in which to make an application for leave to appeal from the Federal Magistrate and an application for leave to appeal.  That application for an enlargement of time acknowledged the fact that the appellants had sought leave to appeal after more than 21 days had passed since delivery of the interlocutory judgment:  SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 and Federal Court Rules O 52 r 5(2).  Irrespective of the fact that it was those interlocutory applications before the Court, and not an appeal, counsel for both parties conducted the hearing in the same way as in the case of an appeal.  In this vein, counsel for the appellants filed in Court a further amended notice of appeal at the hearing on 13 May 2005.  Counsel for the Minister gave his consent for the Court to grant leave to the appellants to do so, in spite of the fact that the revised pleading raised a new ground that had not been advanced before the Federal Magistrate.

16                  By the further amended notice of appeal to this Court, the appellants sought to raise the following two grounds of challenge.  It is the second ground that was not raised before the Federal Magistrate:

‘(1) His Honour erred in finding that the Tribunal decision did not involve jurisdictional error in that the Tribunal failed to comply with the Migration Act 1958 s 425 in relation to the [husband and child appellants].

PARTICULARS

(a) The Migration Act 1958, Section 425 required the Tribunal to invite Applicants to appear before the Tribunal and present arguments relating to the issues arising in relation to the decision under review. The [husband and child appellants] were not given such an invitation.

(I will refer to this henceforth as ‘the invitation issue’)

(2) The Tribunal denied the Appellants procedural fairness.

PARTICULARS

(a) By basing its findings on an unwarranted assumption the Appellants were denied a fair hearing which is a denial of procedural fairness and/or a reliance on irrelevant considerations.’

(I will henceforth refer to this as ‘the unwarranted assumption issue’).

17                  The invitation issue.  Counsel for the appellants contended that the Federal Magistrate was wrong in finding from the facts and circumstances of the application for review of the Tribunal’s decision that the requirement to invite each of the appellants was satisfied.

18                  It was submitted that the requirement in s 425(1) of the Act to invite applicants to appear before the Tribunal to give evidence and present arguments is clear on the face of the section and essential to the Tribunal’s exercise of its jurisdiction, counsel citing Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33] and [38] in that regard.  This invitation must not be ‘a hollow shell or an empty gesture’, as described in Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [38].  It was contended by counsel for the appellants in his written submissions that this obligation is subject to s 441A of the Act, which sets out the methods by which the Tribunal provides documents to a person other than the Secretary, and under which the Tribunal is required to pass actual documents to a visa applicant.  Therefore, it was suggested that the Tribunal could not have discharged this obligation to each of the appellants by insisting, as it did under the particular administrative methodology adopted in the present circumstances, that one person (the wife) be nominated as the contact person through which all communications to the husband and child were to pass.  Counsel referred me in particular to WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 in support of that submission.  That case related to s 430D of the Act providing for the giving of the Tribunal’s decision and reasons to a visa applicant, the term therein ‘give’ was interpreted by the majority of the High Court to mean physical delivery of a written statement, rather than some act of constructive delivery: see [37] (per Gleeson CJ, McHugh, Gummow and Heydon JJ).  That decision was made in the context of the High Court determining when time began to run under the former s 478 of the Act for the filing of an application for judicial review of a Tribunal decision.  Counsel contended that this obligation is, by analogy also required under s 425, thus asserting that whilst the arrangements at issue in the proceeding may be seen as administratively convenient, such convenience cannot override the obligation under s 425.

19                  Therefore, it was submitted that in the circumstances there was no invitation addressed to the husband and child, who were visa applicants in their own right, and a fair reading of the invitation letter of 3 July 2000 was that it only invited the wife to attend.  It was further contended that the letter did not advise the husband and child that they were also formally applicants to the Tribunal who have a right to a hearing, nor were they sworn in or invited to participate by the Tribunal member during the hearing, which implied, according to counsel for the appellants, that even if there was an invitation, it would be no more than a ‘hollow shell or empty gesture’.  Moreover, counsel for the appellants submitted that the offer, which the Tribunal extended to the wife per medium of the 3 July 2000 letter to nominate any ‘witness’ at the hearing for the purpose of giving oral evidence, could not have been interpreted as an invitation to the second or third appellants.

20                  Furthermore, it was suggested that since the husband made specific claims of a well-founded fear of persecution in the course of his application to the Department and the Tribunal, which were clear on the face of the documents before the Tribunal, he should have been given a specific invitation to appear and present arguments in relation to his discrete experience and fear, in accordance, it was inferred, with the decision in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660 at [33].  The facts in that case were that the Tribunal member had promised the applicant during the course of the hearing that he would be able to address questions the member had in mind in relation to certain inconsistencies identified by the member in the applicant’s evidence.  Their Honours McHugh, Gummow, Callinan and Heydon JJ considered whether the Tribunal’s failure to send the promised questions led to an incomplete review and that s 425 was thereby infringed because it imposed a duty to hear from the applicant.  I observe that no evidence was provided in the present case as to the husband having filed an amended application with the Department for a protection visa in respect of the alleged specific claims he was said to have to refugee status.  I also point out that the appellants provided no positive evidence to support their contention that the husband did not in fact attend the Tribunal hearing.  In his submissions in reply, counsel for the appellants referred to the announcement of the matter before the Tribunal at the beginning of the hearing by the Tribunal’s hearing officer, in support of the appellants’ contention that the husband did not attend.  That announcement reads as follows:

‘The member has entered the room.  Please be seated.  The hearing commenced at 1.15.  This is a hearing of application of [appellant wife’s name]…’

The appellant wife was then sworn in.  Counsel for the appellants submitted that the absence of any reference to the appellant husband’s application by the hearing officer, and the fact that he was not sworn in, led to one of two possible scenarios.  The first was that the husband was not present at the hearing; the second was that the husband was present but no hearing was conducted in relation to his application since he was not invited to give evidence (at the hearing) or present arguments relating to the issues arising in relation to the decision under review. 

21                  The ‘specific claims’ attributed to the husband were said to have been made in two documents, both received by the Tribunal prior to the hearing.  The first was in a letter dated 8 June 1999 to the Tribunal which was signed by the appellant wife.  Counsel for the appellants drew my attention to the following passage (read literally):

‘As I have written in my statement to the Department, I had been smuggled out of the mental institution, then we went in hiding.  We had no way of collecting specific evidence under the circumstances and we knew nothing about Onshore Protection Program in Australia.  We just fled fearing for our lives.’

The second document was a letter dated 31 July 2000 from the Macarthur Migrant Resource Centre to the Tribunal containing the following passages which counsel for the appellants said constituted specific claims raised by the husband (again, read literally):

‘This is a support letter for [the wife, husband and their daughter], who are applying for the review of the decision on their application for a Protection Visa…

A few days later, [the husband] had to bribe the medical personnel in order to access [his wife’s] cell and to take her secretly out of the hospital while she was still remaining unconscious.  Had he not done so, she would have suffered the same kind of consequences that her friend, [M]…

After this last incident the [appellant family] was in great fear for their lives, had to live in hiding and decided that there was no other choice for them but to seek asylum in another country.  The circumstances were that the only possibility for them at that time was to come to Australia.’

Whilst those documents tend to suggest that the husband might have been in a position to provide evidence in support of the appellant wife’s claims, they by no means amount to the making of separate claims by the appellant husband.  I also observe that the passage relied upon by the appellants from the majority judgment of the High Court in Applicant NAFF of 2002 related to obligations of the Tribunal under s 425(1) in conducting the review process in the context of the Tribunal’s failure to provide details to the applicant after the hearing, that it had promised during that hearing, of concerns that it had about certain inconsistencies in the applicant’s evidence. 

22                  Counsel for the appellants then cited Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340at [6] (per Black CJ) as authority for the proposition that:

‘Where jurisdictional error has occurred in the making of the decision as to which the decision-maker is vested with a broad discretion, it may be difficult to conclude, as a matter of logic, that the error did not deprive a person of the possibility of a favourable decision.  The circumstances that a case seems very heavily weighed against a person does not logically deny that the error may possibly – not ‘probably’- have affected the outcome adversely to that person’s interests.’

23                  Moreover Sackville J observed at [64]:

‘The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision maker’s failure to observe the requirements of the statute. If so, jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant.’

24                  Counsel for the appellants submitted that it is at least possible that a failure to invite the husband and child to the hearing pursuant to s 425 (and presumably the husband’s alleged failure to attend) may have affected the outcome of the review adversely, since the husband could have presented relevant evidence and failure to invite him to do so may have deprived the appellants of ‘the possibility of a successful outcome.’  I observe however at this point that little evidence, other than the transcript which was inconclusive on point, was tendered in regard to whether or not the appellant husband attended the Tribunal hearing, which might have assisted to determine whether any technical shortcoming in the conveying of the Tribunal’s invitation was of any material significance.  Indeed, from the Tribunal records, it appears that the appellant husband did attend the hearing, although counsel for the Minister conceded that the evidence in that regard was of limited compass.

25                  The unwarranted assumption issue.  Counsel for the appellants submitted that although this ground was not put before the Magistrate, the Minister would not be prejudiced by it being pursued on the appeal as it only raised a legal issue, based on the face of the decision and the evidence before the Tribunal.  It was submitted that in those circumstances, leave should be granted to present the fresh ground, since no evidence could be raised, or is necessary, to meet it.

26                  Counsel for the appellants referred to the following passages at page 14 of the Tribunal’s decision which he contended to demonstrate his point regarding the second ground (all references to ‘the applicant’ are to the appellant wife):

‘The Tribunal accepts that the Applicant…[was] detained for 24 hours by particular police officers in late January 1999 and suffered some relatively minor assault before being thrown out of the police station.  The applicant could not suggest why this happened at this time, other than possibly as a result of their unsuccessful request for premises to hold Bible study classes, to the regional education authorities.  The Tribunal also accepts that the Applicant was abducted on the way home from a Jehovah’s witness meeting on 17 February 1999 by the same police officers and was kept, drugged, in a mental hospital until her husband… smuggled her out on 20 February 1999.  The Applicant claimed that this, and the January 1999 detention, occurred solely as a result of her religious activities but the hospital letter does not support her claim; nor do the two summonses which merely and very vaguely, require her to attend to give evidence.  Although her claim to have been detained by the police and the next month, abducted and admitted to a mental hospital because of her religious activities is not consistent with independent country information about the treatment of Jehovah’s witnesses in recent years, including from the Jehovah’s Witnesses themselves, the Applicant’s account of this incident was convincing and consistent.  However the Tribunal cannot be satisfied on the evidence before it that this occurred for reason of her religion.

The independent country information accepted by the Tribunal and submitted by the Applicant, when read carefully and fully, is that the systematic abuse of psychiatry of the Soviet era has ended.  Although minor harassment and some discrimination no doubt continues, the material does not suggest that the Jehovah’s Witnesses, as an organisation, have significant problems now or that individual Jehovah’s Witnesses are persecuted for reason of their religion or prevented from practising their religion.  The Tribunal also accepts that as a result of successful court actions in 1999 the Jehovah’s Witnesses…are now recognised as a well established religious group.’  (Counsel for the appellants’ emphasis appears in non-italics). 

27                  Counsel for the appellants contended that the Tribunal’s finding that it ‘cannot be satisfied on the evidence’ that the abduction and subsequent imprisonment of the wife in the mental hospital ‘occurred for reason of her religion’ was based on an unwarranted assumption of the kind described in WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 (Lee, Carr and RD Nicholson JJ),which had the effect of denying the appellants a fair hearing and/or was demonstrative of a decision grounded upon irrelevant considerations.  In WAGO at [54], Lee and RD Nicholson JJ (with whom Carr J agreed on this point) explained:

‘The unwarranted assumptions of the tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the tribunal to disbelieve and disregard that evidence and constituted a failure by the tribunal to duly consider the question raised by the material put before it, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]…his Honour’s comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material.  In misunderstanding the material before it, the tribunal thereby failed to have regard to relevant material, resulting in a decision for which the tribunal had neither authority nor jurisdiction under the Act… It follows that grounds for review of the tribunal’s decision arise under s 476(1)(b) and (c) of the Act.’

28                  Counsel for the appellants further contended that the Tribunal had relied on such unwarranted assumptions to dismiss the wife’s sworn evidence in this manner on the basis of the generalised and broadly based ‘country information’.  Counsel emphasised that that country information was not specific to the wife or the region of Russia in which she lived, and the authors were largely not acknowledged.  Counsel suggested that the wife’s detention and treatment could only have been due to her religious beliefs and practises as ‘that was the only feature of her life which stood her apart from the general population’.  It can be inferred from counsel’s written submissions that the Tribunal had only to accept that one of the two events claimed occurred as a result of the wife’s religion, as even a single act is capable of amounting to persecution, counsel relying for this proposition on the judgment of McHugh  J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429.  Finally, counsel observed that it would be of little comfort to the appellants to know that there are now legal mechanisms, as set out in the country information, to effect the wife’s release after such acts of persecution as claimed had already occurred. 

The Minister’s submissions

29                  Invitation issue.  The Minister contended that the Federal Magistrate was correct to find that the Tribunal had invited each of the appellants to attend a hearing in accordance with the terms of s 425 of the Act.

30                  Counsel’s written submissions on this point first outlined the course of events beginning with the lodgement of the appellants’ application for review of the delegate’s decision on 8 June 1999, as showing that in the circumstances the Tribunal had complied with ss 425 and 425A of the Act in respect of each of the appellants.  Those events were as follows:

(i)         the application for review lodged on 8 June 1999 identified the appellant wife as the contact person for each of the appellants.  The application form contained the following passage:

‘If this application includes more than one person, each person is an applicant in his or her own right.  Applicants must nominate one applicant whom they authorise the Tribunal to contact about this application (“the contact person”).  The Tribunal will communicate with the contact person about this application unless requested otherwise.  The contact person must inform each applicant of the contents of any communication from the Tribunal and, if they wish, reply to the Tribunal for them.’

The application contained an undertaking signed by the appellant wife in the following terms:

‘I undertake to inform each other applicant of the contents of any communication from the Tribunal, and if necessary reply to the Tribunal for them.’

And thereafter the signatures of the appellant wife and the appellant appear; although the form states that all applicants ‘must’ sign the declaration (except for applicants such as the appellant child who is under 18 years of age, for whom a parent or guardian must sign on their behalf); it would appear that the appellant child did not have either parent sign the declaration on her behalf; 

(ii)        the appellant wife provided a statement in support of the application for review; that statement addressed the primary decision and, consistently with the initial applications for protection visa, did not raise any specific Convention claims on behalf of the appellant husband or child;

(iii)       on 9 June 1999 the Tribunal wrote to the appellant wife at her nominated address for service, the heading of which letter referred to each of the appellants and confirmed, in bold text:

‘Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.’

            and that letter went on to advise the appellants that if the Tribunal could not make a favourable decision on the papers alone, it would invite ‘you’ to a hearing; the Minister submitted that in the context of the application seeking a review which nominated the appellant wife as the contact person, the opening instruction appearing in bold text, which I have extracted above, in so far as it used the word ‘you’, sufficiently clearly referred to each of the appellants, and not just to the appellant wife;

(iv)              the Tribunal sent a further letter to the appellant wife on 3 July 2000 at the nominated address for service, the heading of that letter again referring to each of the appellants and once again containing the instruction in bold that I extracted in sub-paragraph (iii) above; counsel submitted that ‘in this way, the letter of 3 July 2000 invited each of the applicants to attend a hearing, scheduled for 14 August 2000, in accordance with ss 425 and 425A of the Act; the letter enclosed moreover a “Response to Hearing Invitation” form and notified the appellants:

“If you want the tribunal to take oral evidence from another person or persons, you must complete the ‘witness’ details on the enclosed form and return it by 17 July 2000.”’

(v)                The appellant wife lodged a ‘Response to Hearing Invitation’ form on 14 July 2000 which confirmed that the she wanted a hearing, that she did not want to nominate witnesses from whom she wanted the Tribunal to take evidence, and that she ticked the box indicating ‘no’ in response to the question on the form ‘[i]f your application includes other family members, do you want a separate hearing?’; in spite of the fact that the form required each applicant over the age of 18 to complete a separate response form, the appellant husband did not complete a separate response;

(vi)              the appellant wife participated in the hearing scheduled on 14 August 2000 and it appears from the Tribunal’s ‘Hearing Information Form’ that the appellant husband and child also attended the hearing; the appellant made no request at the hearing for the Tribunal to take evidence or hear separate argument from the appellant husband or from or on behalf of the appellant child.

31                  On all the foregoing bases, the Minister submitted that the Federal Magistrate was correct to find that the Tribunal had complied with its statutory obligations to invite each of the appellants to the hearing on 14 August 2000.

32                  The Minister further agreed with the Federal Magistrate that the operative word in s425 is ‘invite’, which only creates an obligation to ensure that review applicants are notified and are provided with the opportunity to participate in the process, which, the Minister submitted, is consistent with the decision of the Full Federal Court (Gray, Cooper and Selway JJ) in SCAR at [33], which reads as follows:

‘Pursuant to s 425 of the [Migration Act 1958 (Cth)] the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing.  That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument.  The invitation must not be a hollow shell or an empty gesture…’

As I have foreshadowed above, the appellants’ also placed considerable weight on that and the subsequent passage at [38]. 

33                  The Minister sought to reject the appellants’ submission that the dicta of Hill, Carr and Sundberg JJ in De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at [8] implies that the plain language of the section, being in terms of an invitation, encompasses an additional obligation.  The Minister further sought to reject the connected argument that s 425 purports to prescribe the administrative arrangements used for conveying that invitation.  For convenience I set out the full text of [8] of their Honours’ judgment in De Silva:

‘It was submitted for the appellant that s 425(1) is not restricted to inviting an applicant, prior to the date set for the hearing, to attend the hearing in order that he or she may give evidence and present arguments, but has a continuing operation during the hearing obliging the Tribunal to identify issues and draw them to the applicant’s attention.  We do not accept this construction of the provision.  The governing word in s 425(1) is “invite”.  The purpose of the invitation is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case.  On the plain words of the subsection the obligation is to invite the applicant to appear.  It does not impose on the Tribunal an obligation to identify issues and draw them to the applicant’s attention…’

34                  According to the Minister’s submission, all that is required is that the invitation be ‘in substance and effectively conveyed’ and that it would be overly technical to accept the appellants’ contention that s 425 prohibited the administrative measures adopted by the Tribunal in the present proceeding.  Moreover, it was argued that both the decisions in WACB at [33] and Applicant NAAF of 2002 at [33] and [34], which the appellants suggested tend to the contrary, could be distinguished on their facts from the present circumstances.  In relation to the limited obligation imposed by s 425 of the Act, counsel cited generally Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [37]-[50] (per Black CJ, Hill and Weinberg JJ); Applicant NAHF of 2002 [25]-[28] (per Hely J); Xiao at [35]-[37] (per Wilcox J); and Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [50].  Although each of those decisions arose from different factual contexts to that now presently relevant each involved restrictive interpretations of the breadth of s 425. 

35                  Therefore the Minister submitted that in the circumstances as essayed above at [30], it was clear that the obligations contained in ss 425 and 425A had been satisfied.  Moreover the Minister pointed out that there is no suggestion or substantive evidence that the second and third appellants did not receive any notice of the hearing. It was contended that in light of this history, there was no substance in the contention that the Tribunal failed to invite the appellant husband and child to attend a hearing.  All three appellants were invited in accordance with the Act and it ‘was for the applicants to decide whether or not to accept that invitation.’

36                  The unwarranted assumption issue:  Due to an administrative error, the Minister had had little real notice before the hearing to consider the second ground of appeal outlined in the appellants’ further amended notice of appeal.  Regardless, leave to pursue the ground was not opposed and submissions for the Minister on this point were made orally at the hearing on 13 May 2005.

37                  The Minister’s primary submission in relation to the unwarranted assumption issue was that this ground must fail, since even if the appellants were able to demonstrate error in the Tribunal’s finding that it lacked satisfaction that the appellant wife’s hospitalisation was the result of her religious beliefs, the Tribunal made alternative findings which provided a lawful basis for its decision and those findings were not challenged by the appellants on appeal.  That alternative Tribunal finding can be found at page 15 of its reasons for decision and is as follows:

‘Even if the Applicant was detained and mistreated in January 1999 and abducted and admitted to the mental hospital for reason of her religion, the Tribunal is satisfied that mechanisms of state protection were and are available to her if she has serious problems on return to Russia.  In addition to the material discussed above, for example, about the often successful legal action taken by individual Jehovah’s Witnesses and by the Jehovah’s witnesses organisation, the Tribunal notes that in 1999, Interior Minister officials continued to work and combat crime.’ (The emphasis in non-italics is mine).

38                  The Tribunal was satisfied, on the basis of independent country information which was not directly in contradiction with the appellants’ evidence, that there is effective State protection arising from legal remedies available within Russia as at the date of the Tribunal’s decision, which is regularly and pro-actively used by practising Jehovah’s Witnesses in Russia.  The Minister also pointed out that the Tribunal found that it was ‘not satisfied that there is any ongoing interest in the [appellant wife] by the authorities.’  That finding also amounted to a lack of satisfaction under s 36 of the Act that the appellant wife was a person to whom Australia owes protection obligations under the Convention. 

39                  In so far as the appellants’ written submissions sought to contend that the Tribunal made a finding that there was ‘no evidence’ to support the appellant wife’s claim that her treatment was due to her religious beliefs, the Minister alternatively submitted that this was not in fact the Tribunal’s finding at all.  The Minster emphasised that there is a material difference between a finding that there is no evidence to support a proposition and one of a lack of satisfaction of the truth of that proposition.  The Minister pointed to the Tribunal’s statement at page 14 of its reasons for decision that it ‘could not be satisfied on the evidence before it that this [treatment] occurred for reason of [the appellant wife’s] religion’.  The Minister also referred to the Tribunal’s reliance on country information and inconsistencies in the appellant wife’s account as support for the contention that the Tribunal made a decision that was reasonably open to it on the evidence before it, namely that the treatment it found had been suffered by the appellant wife was not the result of her religious beliefs.

40                  In his written submissions, counsel for the Minister also addressed the additional ground of appeal original raised in the appellants’ amended notice of appeal.  Since, however, a further amended notice of appeal has since been filed, which does not contain this ground of appeal, and the ground was not pressed by the appellants at the hearing, I do not find it necessary to consider the Minister’s submissions insofar as they relate to that foreshadowed ground.

My conclusions on the appeal from the Federal Magistrate:

41                  In regard to the invitation issue, s 425 requires that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments going to the issues arising in relation to the decision under review.  Pursuant to s 425A notice of that invitation is to be given by one of the methods specified in s 441A, which includes dispatch by prepaid post or by other prepaid means.  Under s 441G, where the applicant for review gives written notice of the name and address of another person (here of course the wife) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review (being thus an ‘authorised recipient’), any document that the Tribunal would otherwise have given to the applicant must be given to that authorised recipient.  Therefore the issue arising here is not whether the Tribunal was correct in the manner in which it gave the invitation to the appellant wife as authorised recipient for the appellant husband and child, but whether the manner of adoption being thus of such administrative procedures somehow infringed ss 425 and 425A of the Act.

42                  Section 425(1) of the Act provides:

‘(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

                                                  i.      the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

                                                ii.      the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

                                              iii.      subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’

43                  The section was introduced, in its present form, by the Migration Legislation Amendment Act (No 1) 1998 (Cth), the relevant parts of which came into force on 1 June 1999.  The provisions apply to the Tribunal's review of a delegate's decision: Sch 3, Pt 2, Item 20(2).  Pursuant to s 425, the Tribunal is therefore under a statutory obligation to issue an invitation to an applicant to attend a hearing.  While so much indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting submissions, the obligation imposed by the section is directed to the issuing of an invitation, rather than to the manner of subsequent conduct of the hearing itself.

44                  I am unable to accept the appellants’ contention that the section extends to the minutiae of the administrative arrangements for inviting applicants.  The ordinary meaning of the provision is sufficiently clear.  It is not ambiguous or obscure, and does not lead to a result that is manifestly absurd or unreasonable.  Therefore, in my opinion, the statute should be permitted to operate according to its explicit terms and given the factual circumstances here involved, the appellant husband and child must be taken to have been invited to the hearing before the Tribunal in a manner and to an extent that satisfied the requirements of the Act.  Moreover it does not seem to me to be unreasonable to hold that a husband, wife and child, bound together in their search for refuge as implicitly on the evidence as they were, were properly invited to Tribunal hearing scheduled to consider their applications together, which invitation was addressed to the same home address for all three persons.  Particularly should that be so in circumstances where the Tribunal had been requested that the wife be nominated as the ‘contact’ person as between the family members and the Tribunal for all relevant communications, and where the wife was the only member of the family who had made specific claims to the Minister under the Convention.

45                  Therefore, on the material before me and essentially for the detailed reasons given by the Federal Magistrate, I conclude that there was no error in his Honour’s decision to dismiss the application for review.  In view of that conclusion, it is not necessary for me to consider whether the ground of review raised constituted a finding of fact not reviewable by this Court as a jurisdictional error.  In any event I might draw attention to the observations of Kirby J in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [114], and in particular that ‘grounds of judicial review ought not to be used as a basis for a complete revaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated.’

46                  In regard to the unwarranted assumption issue, this ground for review appears to have insufficient merit.  I would adopt the Minister’s submission that even if I were to find that the Tribunal had committed a jurisdictional error in the manner contended by the appellants (which of course I have not), the alternative finding by the Tribunal provided a lawful basis for the Tribunal’s decision to the affirm the delegate’s decision to refuse the appellants protection visas.  In any event I think that the present circumstances are distinguishable from those the subject of their Honours’ dicta in WAGO upon which counsel for the appellants purported to rely.  As the Minister demonstrated, the Tribunal lacked satisfaction that the appellant wife’s treatment occurred by reason of her religion, by reason of inconsistencies in the appellant wife’s testimony and in the documentary evidence, and on the further basis of certain independent country information.  In WAGO the Tribunal found incidentally that a witness called by an applicant lacked credibility but was found to have no reasonable basis for making that finding. 

47                  It follows from my findings that the appeal must be dismissed.  I order that the further amended notice of appeal filed herein is to be treated as an application of the appellants for an enlargement of time in which to file and serve an application for leave to appeal and as an application for leave to appeal, and on that basis and in the light of my findings already made, I would order that both applications are to be dismissed with costs.

Associate:

Dated:              2 August 2005