FEDERAL COURT OF AUSTRALIA

S1925 of 2003 v Minister for Immigration & Citizenship [2008] FCA 246

MIGRATION – invitation to attend hearing – procedural fairness – request for agent to appear for appellant refused – no general duty on part of Tribunal to inquire further

Migration Act 1958 (Cth), ss 424, 425, 427

Migration Regulations 1994 (Cth), reg 4.35

Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 considered    

Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375, 90 ALD 632 followed

Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166 cited

F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 followed

Gomez v Minister for Immigration & Multicultural Affairs [2002] FCA 480, 190 ALR 543 followed

Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 considered

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12 followed

Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, 106 FCR 426 followed

Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47 followed

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

Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50, 74 ALJR 1404 followed

Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10, 177 ALR 473 followed

Sam v Minister for Immigration & Citizenship [2007] FCA 1976 cited

SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 394, 90 ALD 634 cited

S1925 OF 2003 v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2346 OF 2007

FLICK J

5 March 2008

SYDNEY

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The Appellant to pay the costs of the First Respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1                       The Appellant in these proceedings is a citizen of India who arrived in Australia in early 1996. He is a Sikh born in the Punjab region who claims persecution. In February 1996 he applied for a Protection Visa claiming to be a refugee. That application was refused in May 1997. The delegate concluded that there was “not a real chance of Convention based persecution if he is returned to India and that his fear of persecution on return is consequently not well founded”.

2                     An application for review was filed with the Refugee Review Tribunal in June 1997 and the Tribunal affirmed the decision not to grant a protection visa in March 1999. In August 2006 the Federal Magistrates Court set aside that decision and remitted the proceedings to the Tribunal. A differently constituted Tribunal in February 2007 again affirmed the decision not to grant the protection visa. The Tribunal was “not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to India.”

3                     The Federal Magistrates Court in November 2007 dismissed an application and an amended application seeking to impugn the decision of the Tribunal given in February 2007: S1607/2003 v Minister for Immigration [2007] FMCA 1740. The Appellant now appeals to this Court. His Notice of Appeal sets forth as follows the Grounds of Appeal:

1.  The learned judge overlooked jurisdictional error in the Tribunal’s proceedings to a conclusion without any later communication with the applicant or any invitation to a further scheduled hearing with the Tribunal in the light of the invitation to comment on adverse information. 

2.  The Tribunal acted in bad faith by not inviting the applicant to respond to further specific information.

3.  The Tribunal’s decision is manifestly wrong as it was made contrary to the material before it. The Tribunal made critical and fault finding in analysing of the extensive material submitted as a response to invitation to comment on information.

4                     The Appellant appeared in person before the Court, with the aid of an interpreter.

5                     Each of the grounds raised by the Appellant, it is considered, should be rejected.

6                     Also rejected is a submission made orally during the course of the hearing of the appeal that inadequate time had been permitted to comment upon specific information. The submission was that Regulation 4.35(5) of the Migration Regulations 1994 (Cth) applied and that 28 days should have been permitted as opposed to 14 days. Regulation 4.35(3) provides a period of 14 days where “the information or comment to which the invitation relates is to be provided from a place in Australia”; reg. 4.35(5) provides for a period of 28 days where “the information or comment to which the invitation relates is to be provided from a place that is not in Australia.”  No Ground of Appeal in this Court seeks to raise this issue. The ground was, however, raised before the Federal Magistrate and was rejected. The decision of the Magistrate was correct as the information or comment was sought from the Appellant, being a person present in Australia, and time allowed was in accordance with the Regulations.

Proceeding to a Conclusion: Jurisdictional Error?

7                     The issue sought to be raised by the first ground of appeal is, with respect, not self-evident. It would appear to be a ground seeking to contend that the Tribunal has either not complied with s 425 of the Migration Act 1958 (Cth) or has otherwise denied the Appellant procedural fairness.

8                     In attempting to construe the first ground of appeal, some assistance has been gleaned from a ground — albeit differently expressed — before the Federal Magistrate’s Court.

9                     So understood, the ground must be rejected.

10                  Section 425 provides as follows:

Tribunal must invite applicant to appear

(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:

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

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) 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.

11                  Consistent with this provision, the Tribunal on 26 September 2006 wrote to the now Appellant inviting him to attend a hearing on 30 October 2006. Further letters inviting the Appellant to attend the hearing were forwarded on 6 October and 18 October 2006. A handwritten response provided by the Appellant to that invitation on 25 October 2006 was as follows:

As to the hearing on Monday 30-10-06, we ask you to ask Presiding Member to put to us any information he/she may wish for us to respond in writing because we have suffered a lot & medically we are not fit to attend a hearing now especially after the shocking death of our mother in India. The circumstances and evidence are on file — please write to us & ask us to clarify any issue which the Tribunal think it could be part of the reason for a decision that we are not refugees. My wife & I suffered serious harm in the past & our fear is strong and well founded.

That response, it will be noted, stated that the Appellant was “not fit to attend a hearing”.  On the same day a letter had also been sent on behalf of the Appellant asking the “Presiding Member to vacate the hearing on 30 October”. No request was made for a hearing to be scheduled on any other date.

12                  Thereafter, on 2 January 2007, a detailed 14 page letter was forwarded by a Tribunal officer to the Appellant inviting him to comment on the information set forth in that letter. That letter was in accordance with the requirements imposed by s 424A of the 1958 Act. The Appellant responded on 24 January 2007.

13                  The Tribunal proceeded to make its decision in February 2007.

14                  Such facts do not disclose any breach of s 425 or procedural fairness. That was also the conclusion reached by the Federal Magistrate.

15                  The simple fact is that the Tribunal invited the Appellant to attend a hearing on three occasions and the Appellant requested that the scheduled hearing date be vacated.  There is no lack of an opportunity to appear before the Tribunal, or any denial of procedural fairness, evidenced by such a course.

Bad Faith: A Failure to Invite a Further Response?

16                  Again, the intended content of this ground is not self-evident. And, given its uncertain content, it may be erroneous to attempt to construe this ground as raising a separate and discrete issue from the first ground of appeal.

17                  That which is clear from the materials before the Court is that the Appellant was repeatedly inviting the Tribunal to seek such further clarification or information as the Tribunal considered appropriate or necessary. Thus, in his 25 October 2006 letter the Appellant asked the Tribunal to “write to us & ask us to clarify any issue”. And, in the response to the invitation to comment on further information, the 24 January 2007 letter again stated in part :

When I was working in the past, have paid huge amounts of money to solicitors, migration agents and now my wife and I have lost confidence in those professionals and we ask the tribunal to treat our case with care and love.

To meet the deadline we are submitting this letter now. We ask the tribunal to request more specific information if needed and in the light of Australia day, we hope that the tribunal can make a finding in our favour, and alleviate our suffering and hardship.

Please contact me if further information and more specific information is required to assist you to make a decision in our favour as I believe that I am a Refugee and unable to return back to India or to relocated in any part of India.

18                  In an attempt to properly understand the case sought to be advanced by the Appellant, it has been assumed that attention is sought to be focused upon these requests being made of the Tribunal to seek further information.

19                   A characterisation of this ground in terms of “bad faith” is manifestly inappropriate.

20                  The difficulty confronting the Appellant is simply the fact that the Tribunal was under no obligation to seek further information from him before proceeding to make a decision. In the circumstances of the present case, it is considered that it had no duty to inquire further: cf Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [42]–[43], 207 ALR 12 at 21–2 per Gummow and Hayne JJ. As concluded by the Full Court in Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47 at [24] by Moore, North and Emmett JJ, “the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant”.

21                  The source of any duty or obligation to seek “more specific information” — in the circumstances of the present case — was not identified. Section 427(1)(d), it may be noted, empowers the Tribunal to require the Secretary “to arrange for the making of any investigation”. But that section does not impose any general duty to inquire: Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12]–[14], 74 ALJR 1404. See also Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86], 106 FCR 426 at 445; Gomez v Minister for Immigration & Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543.

22                  The fact that the Tribunal proceeded to reach a decision without seeking “more specific information” cannot be characterised as either unreasonable (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155) or capricious (cf Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129). Any such characterisation would be denied by:

(i)        the general nature of the request being made by the Appellant;

(ii)      the fact that he had on three occasions been invited to attend a hearing before the Tribunal, being an occasion upon which he would then have had an opportunity to further develop his concerns and to provide such further “information” (if any) as he saw fit; and

(iii)     the fact that the detailed letter had been forwarded to him on 2 January 2007 inviting him to comment on the matters there set forth.

At the conclusion of the hearing of the appeal, it should also be noted that the Appellant summarised his case by stating:

“I told them everything but why were they not accepting me?”

The Appellant, it may be concluded, had in fact told “everything” and there was nothing left to tell. 

23                  The need for further inquiry, as opposed to proceeding to resolve the application on the materials before it, was not “obvious”: cf Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at [76] per Lee J. Indeed, it is considered that further inquiry may well have been inappropriate. 

24                  Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal’s decision-making processes. The rules of procedural fairness: “do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision”: F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock.

Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32], 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.

25                  This ground of appeal should be rejected. The source of the duty to seek further information was not identified and there was nothing in the manner in which the Tribunal proceeded which required it to do anything other than to assess such information as was before it.

A Manifestly Wrong Decision

26                  This ground is understood to impermissibly seek merits review. Jurisdictional error is not normally exposed by mere factual error: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35] per McHugh J, 177 ALR 473.

27                  As such, it is rejected.

A Request for an Agent to Appear?

28                  At the outset of the hearing of the appeal an application was made by Mr Laba Sarkis to appear on behalf of the Appellant. Mr Laba Sarkis is neither a solicitor nor a registered migration agent. The application was opposed by the Respondent Minister and the request was denied.

29                  A Court “has an inherent right in regulating its own proceedings to allow a person, not being a party or a party’s lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice”: Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at [14] per Bennett J.  Mr Laba Sarkis has been granted permission to advocate the interests of parties in other proceedings: SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 394 at [16], 90 ALD 634 at 646–7; Sam v Minister for Immigration & Citizenship [2007] FCA 1976 at [6].

30                  In the circumstances of the present case, however, it was not considered that the Appellant would be prejudiced if Mr Laba Sarkis did not appear on his behalf and that it was not self-evidently in the “interests of the administration of justice” to accede to the application being made. The opportunity, however, was left open for the application to be renewed if difficulties were in fact being encountered by the Appellant as the hearing of his appeal proceeded.

31                  It emerged during the course of the hearing that the Appellant, with the aid of the interpreter, was competent to advance his case and he in fact proceeded to do so. To permit an opportunity, however, for the Appellant to have the benefit of such assistance as Mr Laba Sarkis was able to provide, a short adjournment was taken at the conclusion of the Appellant’s submissions to allow him to consult with such people as he saw fit.

Orders

32                  The orders of the Court are:

1.    Appeal dismissed.

2.    The Appellant to pay the costs of the First Respondent of and incidental to the appeal.

Associate:

Dated:         5 March 2008