FEDERAL COURT OF AUSTRALIA

NBKM v Minister for Immigration and Citizenship [2007] FCA 1413

MIGRATION – application for a protection visa – Tribunal’s decision set aside – matter remitted to Tribunal – no second hearing – whether Tribunal was obliged to conduct a second hearing – whether issues in relation to the decision under review had changed

Migration Act 1958 (Cth) ss 422B, 424A, 425, 428

SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107

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

Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518

Abebe v Commonwealth (1999) 197 CLR 510

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

NBKM, NBKN AND NBKO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 315 OF 2007

SIOPIS J

10 september 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The name of the first respondent is varied to “Minister for Immigration and Citizenship”.

2.                  The appeal is dismissed.

3.                  The appellants are to pay the first 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

1                     This is an appeal against the judgment of a Federal Magistrate dated 13 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal’s decision was made on 7 September 2006 and handed down on 19 September 2006, and affirmed a decision of a delegate of the first respondent to refuse to grant protection visas to the appellants.  An earlier decision made by a differently constituted Tribunal handed down on 2 March 2004, had been set aside in May 2006.

Background

2                     The appellants are a boy and his parents who were born in the People’s Republic of China (China).  The father alleges that he first arrived in Australia in 1990, and then returned to China in 1993.  He came back to Australia on 12 December 1995.  The boy and his mother arrived in Australia on 8 May 1997.  The family applied, through the boy, for protection visas on 3 March 2003.  In his application for a protection visa, prepared by a migration agent, the son claimed to fear persecution in China because he had spent his formative years in the “West”.  The son stated that he would not have access to state education in China, that he would not be recognised as a “normal” Chinese student and that his own attitudes to the Communist government would endanger him.  The father and mother offered no claims of their own and instead relied upon their membership of the son’s family unit.  On 29 May 2003, the delegate refused to grant the visas.

The Tribunal

3                     The appellants sought a review of the delegate’s decision by an application to the Tribunal dated 8 July 2003.  This application, completed by the appellants’ new migration agent, stated that each of the appellants had his or her own claim, and that separate statements in support of the claims would be submitted.  The statements were received by the Tribunal on 8 January 2004 – the day before the date of the hearing.

4                     The appellants claimed that each of them had individual claims for refugee status.  The appellants claimed that due to the fault of their previous migration agent they mistakenly did not put in claims on their own behalf.

5                     The father claimed that on his return to China from Australia in 1993 he was regarded as a dissident and was interviewed by the Public Security Bureau (the PSB) about subversive communications he had engaged in with a particular foreign journalist.  He claimed to have departed China in December 1995 because he had to escape scrutiny from the PSB.  It was further claimed that the wife and son faced persecution in China on account of the husband’s political profile.  It was said that the mother was required to attend a labour camp and the son was denied access to school.  The father claimed that his wife and their son obtained their passports eventually, by paying bribes, and came to Australia.

6                     A hearing of the Tribunal was held in January 2004.  The hearing was transcribed.  Only the adult appellants attended the hearing.  Their migration agent, Ms Grace X Chen, was present at the hearing.  Each of the father and the mother gave evidence.  On 2 March 2004, the Tribunal handed down its decision.  In its reasons for decision, the Tribunal recorded the evidence which had been given by the husband and the wife.  The Tribunal affirmed the delegate’s decision.

7                     The appellants applied for judicial review of the Tribunal’s decision.

8                     Pursuant to a consent order dated 29 May 2006, a Federal Magistrate quashed the decision of the Tribunal and remitted the matter to the Tribunal to be considered in accordance with law.

9                     On 6 July 2006, the Tribunal wrote to the appellants.  The letter stated:

The Federal Magistrates Court of Australia has remitted your case to the Tribunal for reconsideration.

You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal.  Any documents should be provided as soon as possible.  Any documents not in English should be translated by a qualified translator.  You should send both the documents and the translations.

In the meantime, your case will be allocated to a Member of the Tribunal who has not previously made a decision in relation to your case.  The Member may do one or more of the following:

·               seek further information

·               seek your comments on particular information

·               invite you to a hearing

before making a decision on your case.

10                  On 27 July 2006, the Tribunal wrote to the appellants pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), seeking a response to nine nominated items of information.  The letter outlined various inconsistencies between the original protection visa application, submissions made by the father in 2004 and 2005, and the evidence previously given to the Tribunal, and sought the appellants’ comment.  The letter included the following paragraph:

Please note that the Member who is now considering your case will listen to the tape recording of the Tribunal hearing on 9 January 2004.  He may decide, having done so, and having considered your response to this letter and the other evidence currently before the Tribunal, that he is able to make a decision, which may be either favourable or unfavourable.  It is therefore in your interest to submit with your response to this letter, all further evidence or submissions you wish the Tribunal to consider.

11                  On 28 August 2006, Mr Wayne YT Han, a migration agent, acting on behalf of the appellants, submitted a five page facsimile to the Tribunal, which responded to each of the nine items of information in the Tribunal’s letter.

12                  The Tribunal did not invite the appellants to a further hearing.  In its reasons for decision dated 7 September 2006, the Tribunal explained that, having listened to the tape of the hearing, it was satisfied that the summary recorded in the first review decision was a fair summary of the evidence given by the parents.  The Tribunal affirmed the decision of the delegate to refuse to grant the appellants protection visas.  The Tribunal did not accept that the son would face “serious harm” by reason of having been educated abroad.  Further, the Tribunal did not accept that the father was in fact a dissident and, therefore, rejected the mother’s and son’s claims that they would each suffer harm by reason of their association with the father.

The decision of the Federal Magistrate

13                  The appellants applied for judicial review of the decision of the Tribunal in an amended application on 8 December 2006.  The essence of the appellants’ complaint was that the reconstituted Tribunal had made the decision on 7 September 2006, without inviting the appellants to a hearing at which the appellants could give oral evidence.  This omission, said the appellants, meant that the Tribunal failed to comply with its obligations under s 425 of the Act and under s 422B of the Act – which they referred to as the “natural justice hearing rule”.

14                  The Federal Magistrate appointed the father as litigation guardian of the son for the purpose of the proceedings.  The Federal Magistrate asked the father to expand on the alleged denial of natural justice under s 422B.  The father relied on the failure by the Tribunal to invite the appellants to attend a hearing to give oral evidence.

15                  The Federal Magistrate found that:

[t]he contention by the [appellants] that the Tribunal was under the obligation to hold a second hearing is misconceived.  The Tribunal had held a hearing.  The Tribunal was entitled to take into account information of claims that had been made to the earlier Tribunal at the hearing.

16                  The Federal Magistrate referred to the following observations of the Full Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [39] (SZEPZ)in support of his finding that there was no obligation on the Tribunal to hold a second hearing:

Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review.  An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.  The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.

The appeal

17                  The grounds of appeal set out in the notice of appeal were in summary:

1                    By failing to invite the appellants to a second hearing, the Tribunal acted in breach of s 425;

2                    By the Tribunal relying only on the tape recording of the first hearing and the summary of the evidence recorded in its previous reasons, there was a real and substantial risk that its capacity to make a proper assessment of that evidence was impaired; and, therefore, there was a breach of s 422B of the Act;

3                    There was a breach of s 422B as the Tribunal did not give the appellants the opportunity to give oral evidence and arguments at hearing; and

4                    The Court wrongly relied on SZEPZ.

18                  In support of ground 3 of the notice of appeal the appellants stated by way of particulars:

[T]here are some information and evidences occurred since the last hearing such as new information about China’s human right violation and the persecution in the applicant home town.  Even though, the RRT sent a s 424A letter to the applicant on 27 July 2006, and the applicant replied the letter in the due time.  But the opportunity given by s 424A letter is different to the hearing opportunity as in the hearing, the applicant can fully provide its new information and arguments in relation to the decision under review.

19                  In this regard, I note that the Federal Magistrate observed in his reasons that the father had said in submissions that he “was expecting a further hearing so that he could provide clarification for things that needed to be clarified”.  However, the Federal Magistrate noted that the father had been unable to say what those things were.

20                  At the hearing of the appeal before me the father said that his complaint was that he had been denied his “opportunity to go to a hearing”.  The Tribunal had, he said, thereby failed to comply with its obligation under s 425 of the Act.

21                  It is convenient to consider grounds 1 and 3 of the appeal together because they raise, in my view, two separate but related issues.

22                  The first issue is, whether as a matter of right an applicant is entitled to a second hearing when a decision of the Tribunal is set aside on review and the matter is referred back to the Tribunal to be decided in accordance with law.

23                  The case of Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 (Liu) establishes that there is no absolute right to a hearing before the Tribunal member who decides the review.

24                  In Liu, the Full Court said that s 428 of the Act made specific provision for a hearing to be conducted by a person other than the Tribunal member deciding the review.  In that case, the hearing had been before one member of the Tribunal, but the decision was made by a different member of the Tribunal, who had invited the applicants to a hearing.  The Full Court held that there was no jurisdictional error committed by the Tribunal in acting in that manner.

25                  The second but related issue is whether in the circumstances of this case, a second hearing was required.  It does not follow that because there is no absolute right to a second hearing when a matter is remitted to the Tribunal for hearing according to the law, that there will never be circumstances when the Tribunal will be required to invite an applicant to a second hearing, in order to comply with s 425(1).  Section 425(1) requires the Tribunal to invite an applicant to appear before a Tribunal to give evidence and present arguments relating to “the issues arising in relation to the decision under review”.

26                  Whether such requirement arises will depend upon what the “issues arising in relation to the decision under review” are, at the time the Tribunal makes the second decision.  In the case of Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 (Wang), the High Court considered the validity of a direction made by the Full Federal Court on appeal remitting a matter to the Tribunal as previously constituted, with the object of preserving the findings of fact that had been made by the Tribunal that were favourable to the applicant.  At 542, at [77]‑[78], Gummow and Hayne JJ observed:

When the Tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the Tribunal’s decision, a person to whom Australia owes protection obligations.  So much follows from the fact that the Tribunal exercises afresh the powers of the original decision‑maker.  Seeking to “preserve” some findings of fact made at an earlier review assumes that no circumstance relevant to those facts has changed in the intervening time.  It assumes, for example, that conditions in the country of origin have not changed and, in a case like the present, that the beliefs and intentions of the person who has sought protection have not changed in any material way.

There was no evidence before the Full Court which would enable it to conclude that there had been no material change in circumstances.

(Original emphasis.  Footnote omitted.)

27                  Gummow and Hayne JJ recognise in those observations that the “issues arising in relation to the decision under review” are capable of changing between the date of the first and second decision, and that the Tribunal’s decision must be made by reference to the issues current at the time of the second decision.

28                  In determining whether there was a relevant difference in this case in the issues facing the Tribunal making the second decision, it is necessary to have regard to the nature of the review process conducted by the Tribunal.  In Abebe v Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ observed at 576, at [187]:

The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well‑founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.

29                  The ambit of the potential issues which are to be the subject of the review are determined by the claims which are made by the applicant.  It does not follow, of course, that each and every aspect of the claim made by an applicant will necessarily become an issue relating to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 601, at [40]).

30                  In this case, the ambit of the potential issues before the Tribunal as originally constituted was defined by claims made by the appellants, as contained in the materials which were provided to the Tribunal immediately prior to the first hearing, and the evidence given at the first hearing.  As previously mentioned, in July 2006, after the first decision was set aside and the matter was remitted to the Tribunal, the Tribunal wrote to the appellants inviting the appellants to comment upon nine items of information.  These items arose from the content of the claims which had been before the Tribunal when it made its first decision.  The letter also invited the appellants to submit any further evidence or submissions they wished the Tribunal to consider.

31                  The appellants responded through their migration agent by commenting upon the items raised in the Tribunal’s letter, but they offered no further evidence or submissions.  In particular, there is no reference in the letter to any “new information” about China’s human rights violations and persecutions in the appellants’ home town which were referred to in the particulars to the notice of appeal at [18] above.

32                  In my view, therefore, there was no information provided to the reconstituted Tribunal which amplified the appellants’ claims.  There was, therefore, no material change in circumstance which had the potential to expand the scope of the relevant issues beyond those the subject of the first hearing and the first decision.  As the appellants had already had the opportunity to provide evidence and make oral submissions as to those issues at the first hearing, the appellants were not, in the circumstances of this case, deprived of their rights under s 425.  Nor were they denied natural justice by reason of a lack of opportunity to make oral submissions at a hearing in respect of the issues relating to the decision under review – that opportunity having been afforded them at the first hearing.  Section 422B provides that Pt 7 Div 4 of the Act (which includes s 425) is an exhaustive statement of the natural justice hearing rule.  Grounds 1 and 3 are dismissed.

33                  As to ground 2, the complaint appears to be that the method adopted by the second member in listening to the tape of the evidence and not hearing the evidence directly, carried with it a real and substantial risk that the Tribunal would be unable to make a proper assessment of the evidence and, accordingly, the Tribunal fell into jurisdictional error.

34                  First, as already mentioned and as recognised in Liu, s 428 of the Act provides that evidence may be taken by a person other than the Tribunal member who makes the final decision.  Thus, the Act contemplates a Tribunal may make a decision based upon a record of evidence taken before another Tribunal member, or a different person.  It follows that the adoption of this procedure by the Tribunal cannot, without more, give rise to a jurisdictional error.

35                  Secondly, the transcript of the hearing was not in evidence before the Federal Magistrate or this Court, nor did the appellants identify any defects in the record of evidence set out in the first decision, to support their contention that there was a “real and substantial risk” that the Tribunal did not, in fact, make a proper assessment of the evidence.  Accordingly, in my view, this ground of appeal adds nothing to grounds 1 and 3 of the appellants’ appeal, and should be dismissed.

36                  As to ground 4 of the appeal, the facts in this case are, indeed, distinguishable from those in SZEPZ.  However, the Federal Magistrate relied upon SZEPZ for the proposition that where a Tribunal decision is set aside and the matter is remitted to the Tribunal, it is the decision that is set aside, and that it does not follow that the whole process in arriving at that invalid decision is also invalid.  The Federal Magistrate did not err in so doing.  Ground 4 of the appeal is dismissed.

37                  The appeal is dismissed with costs.

Associate:

Dated:         10 September 2007