FEDERAL COURT OF AUSTRALIA

SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514

MIGRATION – review by Refugee Review Tribunal – unreasonableness – whether failure to make enquiry constituted exercise of decision making power in an unreasonable manner – procedural fairness – whether failure to make enquiry constituted denial of procedural fairness –– whether conclusion reached by Tribunal not an obvious and natural evaluation of material supplied by applicant – whether failure to invite applicant to comment on conclusion constituted a denial of procedural fairness – operation of s 422B of the Migration Act 1958 (Cth)

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, considered

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, applied

Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170, considered

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456, followed

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, distinguished

SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs  (2005) FCA 1493 (Branson J, 25 October 2005, unreported), followed

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, considered

Wu v Minister for Immigration & Multicultural & Indigenous Affairs  (2003) 133 FCR 221, followed

SZEGT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1070 OF 2005

EDMONDS J

28 OCTOBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with 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

Edmonds J:

1                     This is an appeal from the Federal Magistrates Court (Lloyd-Jones FM) dismissing an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming the decision of the delegate of the first respondent (‘the delegate’) that the appellant is not a refugee and is not entitled to a protection visa.

Background

2                     The appellant arrived in Australia on 25 May 2003 on a Nigerian passport issued in March 2003.  His passport indicated that he had been granted a temporary business visit visa for travel to Australia by the Australian High Commission in Lagos on 17 April 2003.  On 12 June 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’).

3                     On 18 September 2003 the delegate refused to grant a protection visa and on 27 October 2003 the appellant applied to the Tribunal for a review of the delegate’s decision.

Refugee Review Tribunal

4                     Before the Tribunal, the appellant claimed that he was picked up by police at his house on 17 February 2003 and imprisoned at a police station for two days for his involvement in instigating protests against oil companies over the environmental degradation they were causing to local communities.  The appellant claimed that he was subjected to a de-humanising situation while undergoing intensive interrogation and that his lawyer secured his release from the police station by posting a bail.

5                     The appellant further claimed that on 15 March 2003 he was again picked up from his house by armed men who took him to an unknown destination and threatened to kill him.  He claims that he was taken to the same police station and severely tortured until he escaped by bribing a guard.  He then travelled to Lagos and escaped the country.

6                     In support of these claims, the appellant’s advisor submitted to the Tribunal a letter dated 15 January 2004 from the appellant’s lawyer in Lagos, Mr Agbor, on the letterhead of the firm C. R. O. Agbor and Co.  This letter was addressed to the presiding officer of the Tribunal and was in the following terms:

‘We are Solicitors to [SZEGT] (hereinafter referred to simply as our client).

We write to inform you that our client was arrested on 17^th February, 2003 by agents of the State Security Service and detained at Ughelli Police Station where he was subjected to intense interrogation.  We were called to assist in securing his bail which we did promptly.

On 15^th March, 2003, our client was picked up again by agents of the State Security Service and dumped at Ughelli police station for alleged involvement in Warri crisis.  He later escaped from custody.

Your assistance with respect to the above subject is solicited.’

7                     The Tribunal records that on 3 June 2004 it contacted Mr Agbor by phone.  That record is in the following terms:

‘On 3 June the [sic] Tribunal contacted the applicant’s lawyer in Lagos, Mr C R O Agbor, by phone and Mr Agbor confirmed that he was familiar with the applicant’s case and had written the letter of 15 January 2004 concerning the applicant’s detentions in February – March 2003, a copy of which was provided by the applicant’s advisor with his submissions of 7 May 2004.  As this information – i.e. the applicant’s lawyer’s confirmation of this letter – is not adverse to the applicant’s claims, it has not been referred to him for comment.’

8                     In its reasons, the Tribunal remarked that the appellant’s claim to have been detained and questioned is supported in the case of his February and March 2003 detentions by Mr Agbor’s letter and the subsequent phone confirmation by Mr Agbor of those detentions.  The Tribunal accepted that these detentions occurred and included mistreatment of the appellant.

9                     The appellant failed because the Tribunal was not satisfied, ‘on the basis of any of this material’, that the appellant’s detentions arose from political activity.  Amongst the matters to which the Tribunal had regard in not being so satisfied, were:

·        The letter dated 15 January 2004 from his lawyer did not make any mention of the nature of the matter about which the appellant was detained and interrogated in February 2003.

·        As to the March detention, in the absence of any claim by the appellant or the lawyer that the lawyer was involved in any way in that second detention, the Tribunal did not accept that the lawyer had any direct knowledge of the appellant’s second detention and therefore did not give the explanation of the appellant’s second detention viz., ‘alleged involvement in Warri crisis’, any credence.

The Federal Magistrates Court

10                  The heart of the appellant’s application to the Federal Magistrates Court to review the decision of the Tribunal was the failure of the Tribunal to enquire of the appellant’s lawyer in Nigeria what personal knowledge the lawyer had as to the circumstances of the appellant’s arrest on 15 March 2003.  It was common ground before the Court that the Tribunal did not ask Mr Agbor to expand upon the contents of his letter.

11                  The appellant’s application was grounded on two bases –

(1)               Wednesbury unreasonableness – the failure to enquire was so unreasonable that no reasonable person could have failed to have enquired; and/or

(2)               A denial of procedural fairness – the failure to enquire constituted a failure by the Tribunal to carry out its duty under s 424(1) of the Act.

12                  The Court dealt with the arguments based on those grounds in the following way:

(1)        Section 424, like s 427 of the Act, confers power on the Tribunal to obtain information but does not impose any obligation or duty to exercise such power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43].

(2)        The Tribunal has no general duty to make its own enquiries in order to make the appellant’s case: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187].

(3)        Where it is obvious that material is readily available which is centrally relevant to the decision to be made, to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 per Wilcox J at 170.  See too Luu v Minister for Immigration & Multicultural Affairs (2002) 197 ALR 433 per Gray, North and Mansfield JJ at [28].

(4)        The failure to make enquiries, although it may apply in only limited cases, may be an excess [sic: exercise] of power in an unreasonable manner and hence a constructive failure to exercise jurisdiction or be a breach of the rules of natural justice, whether or not it renders the ultimate decision unreasonable.  But even if that proposition is valid, the relevant Federal Court cases and dicta recognise that the Tribunal has no general duty to make enquiries about an applicant’s claim: Minister for Immigration & Multicultural Affairs, Ex parte Cassim (2000) 175 ALR 209 per McHugh J at [12] – [14].

(5)        The decisions of the Full Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24], [25] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20], [21] are binding authority against any argument that failure to enquire is an error per se.

(6)        The appellant has not been able to demonstrate that the enquiries he claimed the Tribunal should have made would have established a significantly different outcome in the reasoning of the Tribunal.  This was because of the apparent weight that the Tribunal had placed on the significance of the answers given by the appellant during the Tribunal hearing in the context of the material supplied by him and his agent to the Tribunal prior to the hearing.

(7)        Further, the appellant had not provided the Tribunal with any evidence to support the view that Mr Agbor had a detailed or intimate knowledge of the appellant’s involvement in the political movement in the Niger Delta that the appellant was claiming.  On his own evidence, Mr Agbor was not known to the appellant prior to his arrest and the only meeting they had had was at the police station during the arrangement of bail.  The appellant had never visited the offices of Mr Agbor and there was no indication that the appellant had conveyed to Mr Agbor the details of his involvement in the political movement, nor was there any evidence that Mr Agbor was aware of the appellant from independent sources.  A confirmation from Mr Agbor that the appellant had been arrested for alleged ‘political reason’ did not substantially strengthen the case for the appellant before the Tribunal.

(8)        The doctrine of procedural fairness requires that a person be afforded a fair and unbiased hearing before decisions are taken which affect them.  The focus of the doctrine is whether the person before the decision-making body has been provided a proper opportunity to present his or her case and an opportunity to respond to any adverse material in the possession of the decision-maker.  Despite some expansion, the focus has not moved from what has been put before the decision-maker for analysis as opposed to exercise of information gathering or duty to enquire.

(9)        The weakness in the appellant’s submission was that the Tribunal reached its conclusion as a result of the appellant being unable to provide a convincing and coherent explanation of the political uprising in the Niger Delta.  The Tribunal referred to other issues discussed with the appellant during the hearing which added to the Tribunal’s doubts as to the appellant’s credibility in respect of the ease in which he escaped detention on the second occasion and the circumstances of his departure from Lagos which ultimately led to the following conclusion:

‘I find in the light of the evidence discussed above that the applicant has assembled and familiarised himself with considerable information about political activism, and repression of that activism, in the Niger Delta and has used that information as a basis for mounting an application for protection under the Convention, but that in fact he has not had any personal association with that activism.  Accordingly I find that he does not face a real chance of being harmed on his return to his own country because of his political opinion.’

The Appeal

13                  The appellant’s amended notice of appeal to this Court contains some ten paragraphs of grounds of appeal although a number of those paragraphs relate to the ground of denial of procedural fairness.  In short, the grounds relied on in argument were the same as those relied on below –

(1)               Wednesbury unreasonableness – the failure of the Tribunal to ask the appellant’s Nigerian lawyer whether he had personal knowledge of the appellant’s detention on 15 March 2003 was an exercise of a discretionary power in a manner so unreasonable that no reasonable person would have so exercised the power.

(2)               Denial of procedural fairness – the Tribunal’s failure to ask the appellant’s Nigerian lawyer whether he had personal knowledge of the appellant’s detention on 15 March 2003 was a breach of s 424(1) of the Act or was a breach of the Tribunal’s obligation to accord procedural fairness.

Wednesbury Unreasonableness

14                  The appellant does not seek to attack the decision of the Tribunal affirming the decision of the delegate that the appellant is not a refugee and is not entitled to a protection visa, no doubt because that is not the exercise of a discretionary power such as to attract the principles of ‘Wednesbury unreasonableness’.  By s 65 of the Act, the delegate was required to grant the visa if satisfied that the appellant met the relevant criteria (including, relevantly, the criterion set out in s 36(2)(a) of the Act), and was required to refuse to grant the visa if not so satisfied: see Minister for Immigration & Multicultural Affairs v Eschetu (1998) 197 CLR 611 at [126] – [128] per Gummow J.

15                  Nor does the appellant attack the Tribunal’s decision on the basis that it is so unreasonable that no reasonable decision-maker could have arrived at the decision in question on the material before him or her: see Eschetu at [128], [131], [136] and [137] per Gummow J.

16                  Rather the appellant identifies the discretionary power as being that contained in s 424(1) of the Act – the power to get information that it considers relevant – with the discretion being whether or not to exercise that power.

17                  The appellant’s argument then proceeded that while it is not up to the Tribunal to make an applicant’s case for him, in particular cases it would be manifestly unreasonable not to make an enquiry.  The appellant’s counsel referred to what Wilcox J said in Prasad at 170:

‘But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.  It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.’ (Emphasis)

18                  In the same vein, the appellant’s counsel referred to the decisions of the Full Court in Luu v Renevier (1989) 91 ALR 39 at 50 and Tickner v Bropho (1993) 40 FCR 183 at 197 per Black CJ as providing support for the statement of Wilcox J in Prasad. 

19                  However, neither the notice of appeal nor the appellant’s oral or written submissions seeks to articulate how it is said that an unreasonable exercise (or non-exercise) of this discretionary power in s 424(1) of the Act infects the Tribunal’s ultimate decision with invalidity.

20                  One of the difficulties which any such argument would face is that the Full Court has held in WAGJ (which concerned the parallel power to instigate ‘enquiries’ under s 427), that the Tribunal is not under a duty even to consider exercising the relevant power.  Such a construction is inconsistent with the decision not to exercise the power being ‘unreasonable’ in any sense relevant to validity.  While WAGJ concerned the statutory grounds of review under the former s 476 of the Act, the same is not true of other cases denying the existence of a duty to enquire: see VSAF of 2003 at [20].  The principle established is equally applicable in cases concerning the Constitutional writs: the Tribunal does not fail to comply with its obligations under the Act if it fails to make, or to consider making, an enquiry.

21                  In any event, I accept the submission on behalf of the first respondent that there was nothing ‘unreasonable’ about the Tribunal’s treatment of the letter from Mr Agbor, in the following terms:

(1)               The starting point must be that it is for an appellant before the Tribunal to make out his or her case, as Prasad acknowledged at 170.  The Tribunal was not obliged to construct the appellant’s case for him, or to improve it on his behalf.

(2)               Mr Agbor’s letter was put before the Tribunal by the appellant, who at that stage was represented.  It was for the appellant to decide what went before the Tribunal, and it was up to him (and his advisors) to make the evidence supporting his claim as strong as it could be – for example, by:

·        Asking Mr Agbor to include in his letter details of what he knew about the reasons for the appellant’s detention and the basis of his knowledge; or

·        Making submissions of his own as to why Mr Agbor’s confirmation was reliable.

(3)               It should not be assumed (though it may be the case) that Mr Agbor would willingly have told the Tribunal more about the appellant’s case without instructions from him.  In any case, further material from Mr Agbor was no more ‘available’ to the Tribunal than to the appellant.  The proper source of such material was the appellant.

(4)               In fact, the Tribunal used its power under s 424 to make an enquiry and confirm, in effect, that the letter was genuine.  That was more than the duties of the Tribunal required, and was of assistance to the appellant.  The Tribunal was entitled to proceed on the view that the appellant and his advisors had decided what material to put before it and it would be undesirable, acting on its own motion, to do more than confirm the genuineness of that material.

22                  It follows, in my view, that a failure to enquire of the kind discussed in Prasad and cases following it (all of which concern statutory grounds of review), does not result in the decision of the Tribunal being ‘unreasonable’ in any sense relevant to the exercise of jurisdiction under s 39B of the Judiciary Act 1903 (Cth) (or the equivalent jurisdiction of the Federal Magistrates Court under s 483A of the Act).

23                  Even if I were wrong in this regard, it seems clear from both Luu at 50 and Tickner at 197, as well as from what Wilcox J said in Prasad at 170, that the principle to which his Honour referred is dependent upon the decision-maker having knowledge that there is readily available to him or her other factual material, likely to be of critical importance in relation to the central issue for determination, which has not been obtained.  The words ‘… where it is obvious …’ compel that conclusion.

24                  There is nothing to indicate that it was obvious to the Tribunal that material was readily available from Mr Agbor which was centrally relevant to the Tribunal’s decision.  Indeed, the Tribunal found to the contrary when it said:

‘… but in the absence of any claim by the applicant or the lawyer that the lawyer was involved in any way in that second detention I do not accept that the lawyer had any direct knowledge of the applicant’s second detention ….’

25                  The submission that the letter itself so indicated that the lawyer had direct knowledge of the appellant’s second detention cannot, having regard to its terms, be accepted.

26                  It follows, in my view, that the first ground of appeal namely, that the failure of the Tribunal to ask the appellant’s Nigerian lawyer whether he had personal knowledge of the appellant’s detention on 15 March 2003 was an exercise of the discretionary power (under s 424(1) of the Act) in a manner so unreasonable that no reasonable person would have so exercised the power has not be made out; and even if it is an unreasonable exercise of that power, it does not go to infect the Tribunal’s decision with invalidity.

Procedural Fairness

27                  The appellant’s argument on this ground was put by his counsel, in both oral and written submissions, in the following way:

(1)               Absent s 422B(1) of the Act –

(a)                The appellant was entitled to have his or her mind directed to the critical issues or factors on which the Tribunal’s decision was likely to turn in order to have an opportunity of dealing with it: Kioa v West (1985) 159 CLR 550 at 587 (Mason J).

(b)               The appellant was entitled to respond to any adverse conclusion drawn by the Tribunal on material supplied by or known to the appellant which was not an obvious and natural evaluation of that material: Kioa v West at 573, 588 (Mason J) and 634 (Deane J).

(2)               Further to (1), reliance was placed on what was said by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592:

‘Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decisions-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, the decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’

(3)               The conclusion drawn by the Tribunal from Mr Agbor’s letter – that Mr Agbor did not have any direct knowledge of the appellant’s second detention – was something which was not an obvious and natural evaluation of the terms of the letter and the appellant should have had his mind directed to this issue and been given the opportunity to respond.

(4)               Failure to do so may not constitute, in the face of s 422B(1) of the Act, a denial of procedural fairness, but that does not mean that, consistent with the Tribunal’s duty to act fairly, it had no duty itself to make further enquiry of Mr Agbor as to his direct knowledge of the appellant’s second detention; indeed, the Tribunal’s failure to do so, in the circumstances, constituted a denial of procedural fairness.

28                  That, as I understand it, is the essence of the appellant’s argument on this ground.

29                  It seems to me that there are a number of answers to the appellant’s argument:

(1)               First, while the argument at [27](4) assumes that s 422B(1) may exclude any entitlement of the appellant of the kind described in [27](1) and (2), it further assumes that s 422B(1) does not exclude any obligation the Tribunal has, pursuant to the requirements of procedural fairness, to make a further enquiry.  This latter assumption is at best doubtful and at worst wrong; its correctness ultimately depends on which of the competing views as to what the concluding words of s 422B(1) – ‘in relation to the matters it deals with’ – refer to: Whether they are to be confined to the exact text of the procedural fairness requirements to be found in Division 4 or whether they (the words) extend to something wider, such as all procedural aspects of the conduct of reviews by the Tribunal.  The confined view is exemplified in the approach of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 (‘WAJR’) at [47] – [59] and Gray J in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170 (‘Moradian’) at [35] – [37] on the one hand, and the wider view is exemplified in the approach of Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 (‘NAQF’) at [50] – [87] and Hely J in Wu v Minister for Immigration & Multicultural & Indigenous Affairs  (2003) 133 FCR 221 (‘Wu’) at [21] – [23] on the other.  See too SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs  (2005) FCA 1493 (Branson J, 25 October 2005, unreported) where her Honour said at [12]:

‘Although NAQFinvolved consideration of subs 357A(1) of the Act and Wuand Moradianinvolved consideration of subs 51A(1), rather than subs 422B(1), the cases provide relevant comparators because the three subsections are relevantly in identical terms.’

Her Honour’s view was that the approach adopted by Lindgren and Hely JJ in NAQF and Wu, respectively, is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively.  I agree.  It follows that I do not think the latter assumption upon which the appellant’s argument is predicated, namely that s 422B(1) does not apply to any obligation the Tribunal has, pursuant to the requirements of procedural fairness, to make a further enquiry, is correct.

(2)               Section 424(1) empowers the Tribunal, in conducting a review, to get any information it considers relevant.  On the basis that the correct approach to s 422B(1) is that it extends to all procedural aspects of the conduct of reviews by the Tribunal, including the first sentence of s 424(1), the submission that the overriding requirement of procedural fairness converts what is undoubtedly a discretionary power to get information into a duty to enquire, cannot be sustained.  In the face of s 422B(1) of the Act, the failure to make such an enquiry provides no basis for a claim of a denial of procedural fairness.  That would be enough to dispose of this ground.

(3)               Aside from the limitations imposed by s 422B(1), the doctrine of procedural fairness concerns itself (relevantly) with whether an applicant has had a proper opportunity to present his or her case (including an opportunity to answer adverse material).  The doctrine loses its focus if it is expanded into a general obligation to ‘act judicially’.  To the extent that such expansion has been suggested – see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 366 per Deane J; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 62 [9] per Gleeson CJ – it goes to the rational analysis of what has been put before the decision-maker rather than the exercise of information-gathering powers (and remains, in any event, a minority view).

(4)               Procedural fairness did not require the Tribunal to give the appellant a running commentary on his prospects of success, warning him of every reason why his claims might not be thought sufficient to justify the grant of a visa: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 69 [31] per Gummow and Hayne JJ.  Nor did procedural fairness require the Tribunal to tell the appellant that the material he had put forward was not sufficient and invite him to improve upon it: Kioa v West at 587 per Mason J; Alphaone Pty Ltd at 591; Muin v Refugee Review Tribunal (2002) 190 ALR 601, 661 – 662 [265] – [266] per Hayne J.  It must follow that procedural fairness did not require the Tribunal to take upon itself the role of acquiring further information to bolster the appellant’s case.  This is particularly so given the operation of s 422B(1).

(5)               The source of the issue between the parties, articulated on behalf of the appellant by his counsel, was that it was not an obvious and natural evaluation of Mr Agbor’s letter that he had no direct, personal knowledge of the appellant’s second detention and for the Tribunal to rely on such a construction of the letter was in the nature of an ‘ambush’ (in the words of the appellant’s counsel) to which the appellant’s mind should have been directed to enable him to properly respond.  I do not agree.  As I said at [25] supra, the submission that the letter itself indicated that the lawyer had direct knowledge of the appellant’s second detention cannot, having regard to its terms, be accepted.

30                  For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:              28 October 2005