FEDERAL COURT OF AUSTRALIA

SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100

MIGRATION – obligation of a reconstituted Tribunal to issue a second invitation to hearing to an applicant when a hearing has already been held.

Migration Act 1958 (Cth) ss 424A, 424C, 425

Held: Appeal upheld

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

Kioa v West (1985) 159 CLR 550 referred to

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

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 followed

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 referred to

Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 referred to

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

SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 referred to

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 referred to

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 referred to

SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 distinguished

SZHLM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 704 OF 2007

COWDROY J

23 OCTOBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be upheld.

2.                  Orders 1 and 2 made by the Federal Magistrates Court on 5 April 2007 be set aside.

3.                  The proceedings be remitted to the Second Respondent for determination according to law.

4.                  The First Respondent pay the costs of the Appellant.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Barnes delivered on 5 April 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 29 September 2005. The Tribunal had affirmed a decision of a delegate of the extant Minister for Immigration and Ethnic Affairs (‘the Minister’) to refuse to grant a protection visa to the appellant.

2                     The appellant, a citizen of the Ukraine, claimed to have a well-founded fear of persecution because of his political opinion. In his initial application for a protection visa the appellant claimed to have been a member of the Christian-Democratic Party of Ukraine (‘the CDPU’) since 1997 and that he had actively participated in the political life in the city of Ternopil. The appellant alleged that persecution began during the last election campaign when he was threatened and attacked because he was campaigning for the CDPU candidate and against President Kuchma. The appellant claimed that following the election, Kuchma’s administration commenced a campaign of political terror and reprisal against political activists such as the appellant. The appellant claimed that if he were to return to the Ukraine he would be imprisoned.

3                     A prior decision of the Tribunal (‘the first decision’) was set aside and remitted for fresh determination. Upon remittal the Tribunal wrote to the appellant on 5 July 2005 pursuant to s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) at the address of his authorised recipient, requesting that the appellant provide additional information including his original CDPU membership card; original passport; originals of any documents that the appellant wished the Tribunal to consider including those previously submitted to the Tribunal; comments on the accuracy of the summary of evidence in the decision of the Tribunal dated 20 December 2002; reasons for fearing persecution in the Ukraine given the change in presidency and changed political climate; and any other claims or arguments the appellant wished the Tribunal to consider (‘the first s 424A(1) letter’). The s 424A(1) letter also stated that the newly constituted Tribunal would listen to a tape recording of the previous hearing in order to decide whether it would be necessary to hold a further hearing. The Tribunal requested that such information be provided to it by 19 July 2005. It contained the following warning:

IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 19 July 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.

4                     On 11 July 2005 the Tribunal received a letter dated 5 July 2005 from Mr B H Slater, Migration agent and solicitor advising that he had been instructed to act for the appellant. On 4 August 2005 the Tribunal wrote to Mr Slater (‘the second s 424A(1) letter’). Such letter acknowledged receipt of Mr Slater’s letter and stated:

As the authorised recipient, all correspondence on this case will be sent to you as requested by Mr [SZHLM]. Please note that Mr [SZHLM] has not been sent a copy of this letter. It is important that you tell the review applicant about the contents of this letter.

August 2005

Dear Mr [SZHLM],

RE : Your Application for Review

The Tribunal wrote to you on 5 July 2005, pursuant to s.424 of the Act, requesting you to provide additional information relevant to your application for review within two weeks, i.e. by 19 July 2005. The information requested from you comprised documents which are apparently in your possession in Australia, or your comments on particular matters.

The Tribunal’s letter was sent to your then authorised recipient by facsimile massage, [sic] and you are taken to have received it on 5 July 2005. When the Tribunal received notification, on 11 July 2005, that you had appointed a new authorised recipient, the Tribunal sent him a further copy of its earlier letter, on 12 July 2005, drawing his attention to the fact that the requested information was to be provided within the time set out in the earlier letter.

Although more than two weeks have elapsed since 19 July, and 30 days have elapsed since you were taken to have received the Tribunal’s request, the Tribunal has not received any response from either you or your migration agent.

5                     The second s 424A(1) letter noted that the appellant had failed to identify any fear of persecution in the Ukraine, and observed that the political situation had changed. Independent information was provided to the appellant relating to such change in the political climate in the Ukraine. Based upon such information, the Tribunal stated that it could conclude that the fear of persecution, as articulated in the Application for Review, was no longer applicable. Such letter also stated that since no new claims had been identified, the Tribunal did not believe that there existed a well-founded fear of persecution. The letter concluded:

IF YOU DO NOT GIVE COMMENTS BY 18 AUGUST 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.

6                     On 10 August 2005 the Tribunal again wrote to the appellant extending the time for comments to 24 August 2005 due to an omission in the second s 424A(1) letter.

7                     On 23 August 2005 the Tribunal received additional information from Mr Slater as requested in the first s 424A(1) letter and the second s 424A(1) letter. Such letter referred to the letters of the Tribunal dated 5 July and 4 August 2005. After providing comprehensive information the letter concluded:

Please do not hesitate to contact Ms Suede Stanton of this office if you have any queries in relation to these submissions or the enclosed documents.

8                      On 12 September 2005 the Tribunal wrote to the appellant indicating that it had considered all the material relating to the appellant’s application and that the decision would be handed down on 29 September 2005. On that date the Tribunal affirmed the decision not to grant a protection visa to the appellant.

DECISION OF THE TRIBUNAL

9                     The Tribunal found that it had discharged its obligations to invite the appellant to the hearing before the Tribunal as originally constituted by the invitation sent on 13 December 2002. The Tribunal also found that even if the remittal imposed upon it a fresh obligation to invite the appellant to a hearing, the appellant was not entitled to appear before it because he had failed to respond to the request for further information as contained within the first s 424A letter within the time provided. Accordingly, by virtue of ss 424C(1), 425(2)(c) and 425(3) of the Act, any obligation of the Tribunal to afford a hearing was discharged.

10                  The Tribunal made findings that the appellant’s claimed fear of harm from those who were convicted of stealing the appellant’s horses would not constitute fear for a convention reason; that the secret service would not harm the appellant in the future because of any past involvement in the CDPU; that the appellant was never a member of the CDPU; and that the change in political circumstances in the Ukraine was such that the appellant’s claims did not, in any event, give rise to a well founded fear of persecution.

11                  The Tribunal concluded:

For all these reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Ukraine for a Convention reason at the present time. He is not a refugee.

The Tribunal affirmed the Minister’s decision to refuse to grant a protection visa to the appellant.

DECISION OF THE FEDERAL MAGISTRATE

12                  The appellant raised two grounds of review before Barnes FM, namely that the Tribunal fell into jurisdictional error by deciding not to offer the appellant an oral hearing, and that the Tribunal failed to accord the appellant procedural fairness.

13                  The appellant submitted that there had been a denial of procedural fairness in light of the principles applied in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 because the Tribunal had rejected the appellant’s claims on five grounds which were not obviously open to it on the material presented to it.

14                  Barnes FM found that the Tribunal placed the appellant on notice by both the first s 424A(1) letter and the second s 424A(1) letter that the Tribunal might not have a further hearing and gave the appellant an opportunity to address the issues of concern to the Tribunal. Barnes FM found that there was no error in the exercise of discretion by the Tribunal to not hold a second hearing.

15                  Barnes FM found that s 424C(1) of the Act applied because the appellant had been invited to give additional information and had not given it within the time provided. Accordingly, pursuant to ss 425(2)(c) and 425(3) the appellant was not entitled to appear before the Tribunal. Her Honour contrasted the situation in SZBEL 231 ALR 592 to the circumstances in the case before her, observing that in the present case there was no existing obligation upon the Tribunal to invite the appellant to a hearing and to give evidence and present arguments in relation to the issues under review. Her Honour also found that it had not been established that the Tribunal made its decision on the basis of matters not obviously open on the material before it. Accordingly, no lack of procedural fairness was established and Barnes FM dismissed the application.

NOTICE OF APPEAL TO THIS COURT

16                  The Notice of Appeal to this Court raises two grounds as follows:

Ground 1: The Tribunal failed to comply with s 425(1) of the Act and denied the appellant procedural fairness by failing to identify to the appellant five issues which formed the basis of its decision.

17                  The appellant submitted that the Tribunal failed to take into account, when assessing his Application for Review, the fact that he had sent documents to the Tribunal on 23 August 2005. However it was pointed out to the appellant that the Tribunal’s decision referred to the documents which he had forwarded and made specific reference to each of them in its decision.

18                  The appellant relied upon a document entitled ‘Appellant’s Comments to the Tribunals Decision’. Such document sought, inter alia, to revisit four of the five factual issues which had been determined adversely to him by the Tribunal. In addition the appellant relied upon a document of the International Helsinki Federation for Human Rights entitled ‘Human Rights in Ukraine One Year After the “Orange Revolution”’ (‘the document’). The document provides a human rights assessment of the Ukraine one year after the Ukrainian elections in December 2004. The document was dated 19 December 2005 which clearly post-dated the consideration of the proceedings by the Tribunal. Even if such document was relevant to the issues on appeal, it would only have related to factual aspects of the Tribunal’s decision and therefore it relates only to matters which are not for this Court to consider in the review: see Servos v Repatriation Commission (1995) 129 ALR 509.

19                  The appellant also submitted that the second Tribunal made its decision based upon documents provided to the first Tribunal hearing. However, there is no reason why documents provided in respect of the first Tribunal hearing could not be used in the second hearing. The second Tribunal’s decision clearly indicates that it had sought additional information and considered the further submissions made by the appellant’s agent in response. The Tribunal’s duty to review the Minister’s decision under s 414(1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached: see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [26].

20                  Whilst the appellant made no submissions directly relating to the grounds of appeal referred to in his Notice of Appeal, the Court will nevertheless consider such grounds.

21                  The appellant’s first ground of appeal claims that the Tribunal failed to identify to him five bases upon which it made its decision. The first basis for the Tribunal’s decision which the appellant claims was not identified to him was the finding that the threat of harm to the appellant in relation to the horse theft was not related to a Convention reason. Barnes FM noted that this issue was raised at the Tribunal hearing and that the Tribunal had written to the appellant informing him that it would listen to the tapes of the first Tribunal hearing and give the appellant an opportunity to comment on that decision. It was clear that the basis for the appellant’s claimed persecution was in issue: see SZBEL 231 ALR 592 at [36].

22                  As a second issue, the appellant claimed that the Tribunal failed to inform him that one of the reasons that it would find an absence of persecution was because the appellant’s letter sent to the Tribunal following the refusal of the Minister to grant a visa dated 20 April 2000 did not refer to persecution. The appellant was not entitled to assume that the issues considered by the Minister to be critical were the only issues of concern to the Tribunal. The Tribunal was empowered to consider matters in addition to those raised before the Minister, as requested by the appellant, and to make a decision upon them: see Applicant NAFF of 2002 221 CLR [22]-[25].

23                  The third issue raised by the appellant claims that the Tribunal erred in not identifying to him the conflict between the appellant’s statement dated 11 December 2002 and the submissions prepared for him in 2005 relating to his claims. Such conflict was obvious on the face of the documents and arose after the Minister’s decision. As such the Tribunal was entitled to rely on such issue in making its finding without expressly informing the appellant that it would be relying on such inconsistencies in reaching its decision: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590- 591.

24                  The fourth issue raised by the appellant claims that the Tribunal failed to tell the appellant that it was not satisfied that corruption in the Ukraine would adversely impact on the appellant for a Convention reason. The claim of corruption was raised by the appellant in response to the Tribunal’s invitation to comment on the change in the political climate in the Ukraine. Because of the inadequacy of the appellant’s explanation which might provide a link between the alleged corruption and his persecution, there was no obligation on the Tribunal to specifically state to the appellant that it might reject his assertion as a basis for his claim to be a refugee: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and Kioa v West (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].

25                  The fifth issue related to the appellant’s claim to fear persecution if he were to return to the Ukraine because he sought protection in Australia. Such claim was made late in the course of the review by the Tribunal. However for the reasons provided in the above paragraph, there was no error by the Tribunal assessing such claim on its face without making an express indication to the appellant that it may reject it.

26                  It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant’s responses to the Tribunal’s invitation to comment addressed those issues. In SZBEL 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said:

The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice.

27                  The five issues which the appellant claims were not specifically indicated to him as issues of concern to the Tribunal in the review, were obvious issues arising in the proceedings. As such there was no obligation on the Tribunal to specifically identify them to the appellant as issues that could be relied upon by the Tribunal in making its decision. This ground of appeal is accordingly dismissed.

Ground 2: the Tribunal was required to conduct a hearing

28                  The second ground of appeal claims that Barnes FM erred by not finding that the Tribunal had failed to act judicially and reasonably in exercising its discretion not to offer the appellant an oral hearing giving rise to a denial of procedural fairness.

29                  Barnes FM held that the Tribunal was correct in determining that pursuant to ss 424C(1) and 425(3) of the Act the appellant lost his entitlement to appear before the Tribunal because the appellant failed to respond to the first s 424A(1) letter and relied upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [19].

30                  Before the Court, the respondent relied upon the decision in Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at 553 in support of its submission that the Tribunal was not required to hold a hearing. However the facts in that decision are distinguishable since different statutory provisions applied. The Tribunal member had resigned after the hearing and before delivering any decision. Pursuant to s 428 of the Act, another person may be authorised to hear evidence in such circumstances. The statutory provision specifically authorised the continuation of the review by another person. In the present proceedings, the decision of the first Tribunal was set aside due to jurisdictional error and the proceedings were remitted for determination according to law. No question arises of another person continuing the same review as is envisaged by s 428 of the Act.

31                  Despite the time limit fixed by the first s 424A(1) letter, the Tribunal sent its second s 424A(1) letter extending the time for submission of further evidence and, due to its own omission from such letter wrote again on 10 August 2005 extending the time for compliance to 24 August 2005. The requested information was received by the Tribunal on 23 August 2005 within the time limit set by the Tribunal. Accordingly the Court is unable to agree with her Honour that the appellant failed to comply with the time limit imposed by the Tribunal and that s 424C(1) of the Act applied to disentitle the appellant from a hearing.

32                  By sending the first and second s 424A(1) letters it was clear that the Tribunal required additional information to enable it to determine the application before it. If after the receipt of such further information the Tribunal was still unable to make a decision favourable to the appellant it had an obligation pursuant to s 425 of the Act to invite the appellant to appear before it. The fact that a previous hearing was held did not discharge this obligation in view of the fact that the Tribunal had requested further information. The Tribunal made its decision in the absence of making further inquiry of Mr Slater as it was invited to do, and without inviting the appellant to appear at a hearing.

33                  In SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 the appellant sought a second Tribunal hearing after the Tribunal’s initial decision had been quashed and the proceedings had been remitted to the Tribunal. The appellant provided material to the second Tribunal which included a testimonial from a local pastor attesting to the appellant’s religious observance in Australia. The Tribunal denied the appellant’s request for a further hearing. In an appeal to this Court from a decision of the Federal Magistrates Court which affirmed the Tribunal’s decision to refuse to grant a protection visa to the appellant, the appellant claimed that the Tribunal had not complied with its obligations under s 425 of the Act insofar as that obligation related to the Tribunal’s consideration of s 91R(3). The Court upheld the appeal, finding that the right of the appellant to satisfy his onus of proof under s 91R(3) was not afforded. At [32] the Court said:

The RRT took the view, following the Full Court decision in SZEPZ, that it was not necessary to conduct a further oral hearing because, as the review was a continuing one despite the earlier decision being set aside, a hearing had already been held. However, that mistakes the nature of the obligation under s 425(1). The RRT itself found it necessary to take a further step to comply with s 424A after the earlier decision was set aside. An additional element then emerged, in respect of which the appellant had not been given an opportunity to give evidence and present arguments at an oral hearing. In those circumstances the obligations under s 425(1) were not fully met.

34                  There is a further consideration. The original decision of the Tribunal, having been set aside had ‘no operative effect’: see SZILQ [2007] FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal’s duty required it to seek further information under s 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ‘to appear before the Tribunal to give evidence and present arguments relating to the issuing arising in relation to the decision under review’ pursuant to s 425 of the Act: see Applicant NAFF of 2002 221 CLR at [26] –[27].

35                  The Court is satisfied that the Tribunal failed to comply with its statutory obligations and denied the appellant procedural fairness by failing to invite the appellant to a hearing before making its decision adverse to appellant.

36                  Accordingly the appeal is upheld and the proceedings is remitted to the Tribunal for determination according to law.

Associate:

Dated:         23 October 2007