FEDERAL COURT OF AUSTRALIA

MZYSU v Minister for Immigration and Citizenship [2012] FCA 1073

THE COURT ORDERS THAT:

1.    The appeal be allowed with costs.

2.    The orders of the Federal Magistrates Court made on 31 May 2012 in proceeding MLG1718 of 2011 be set aside.

3.    The matter be remitted to the Federal Magistrates Court for further hearing of the amended application dated 26 April 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    By a notice of appeal dated 21 June 2012, the appellant appeals from the whole of the judgment of a Federal Magistrate given on 15 May 2012. The Federal Magistrate dismissed the appellant’s application for judicial review of the recommendation of an independent merits reviewer (“IMR”) that the appellant not be recognised as a person to whom Australia owed protection obligations.

2    Before me, the appellant sought leave (which was not opposed) to rely upon an amended notice of appeal served on 26 July 2012.

3    The amended notice of appeal alleges that the Federal Magistrate:

1.    erred in refusing relief on discretionary grounds on the basis that the appellant had demonstrated bad faith because he lied in his first entry interview;

2.    failed to accord the appellant procedural fairness, by refusing him relief on discretionary grounds on the basis that he had acted in bad faith;

3.    erred in law in exercising his discretion to refuse relief on the basis that there was an “independent and unimpeachable basis” for the decision; and

4.    misconceived his function by making factual findings based on the answers given by the appellant during his entry interviews.

Background

4    The appellant arrived on Christmas Island on 8 April 2010. He is a male citizen of Afghanistan of Hazara ethnicity who professes the Shia Muslim faith.

5    He was born in the province of Parwan in Afghanistan, but in about late 1996 or early 1997, left Afghanistan with his immediate family (who were wealthy business people) to reside in Dubai.

6    The appellant, while based in Dubai, operated a company in Japan in partnership with relatives. He travelled on business trips to China, Thailand, Indonesia, Japan and Malaysia.

7    While residing in Dubai, the appellant also returned to Afghanistan two or three times to visit his extended family and visited Kabul to secure visas to enter Japan. He also travelled to Pakistan and Iran to visit relations.

8    After arriving at Christmas Island, the appellant, on 4 May 2010, had an unauthorised arrival entry interview (“first Christmas Island interview”) with an officer of the first respondent.

9    At the first Christmas Island interview, the appellant gave a false name and false details of his family members. He told a number of other lies, including, most significantly, that:

1.    he had most recently resided in Afghanistan;

2.    about 20 days before his departure from Afghanistan for Australia, the Taliban asked him to join in Jihad to fight the United States army. When he ignored that demand, he was abducted, gassed, kidnapped and held to ransom;

3.    about 17 or 18 years ago, his two brothers and uncle went missing, and were almost certainly killed by the Taliban.

10    On 1 July 2010, the appellant, at his own request, had a second entry interview (“second Christmas Island interview”) at which he admitted and corrected the above lies.

11    At the second Christmas Island interview, the appellant gave corrected details, including of his name and his family members. He admitted that:

1.    from 1996 or 1997, until prior to his arrival in Australia, he had been living in Dubai;

2.    his brothers were not missing and had not been taken by the Taliban, but also resided in Dubai;

3.    the appellant had never been kidnapped by the Taliban; and

4.    the name and date of birth in his passport were false.

12    The appellant stated that people smugglers had advised him to say that his life was in danger.

13    Notes were taken of the second Christmas Island interview. In relation to why the appellant came to Australia, the notes stated:

Q. Whats your reason for coming?

Because I have a company and business partner in Aust. I applied 3 times, Aust government did not give me a visa. That why I had to come this way.

Q. confirm reason to Aust?

I had to be here because I have a business and I have a business partner here. If they wouldn’t have given me a visa, I would have come this way. I have no life threatening problems/prosecution. I just came here to continue with my business.

14    A transcript of a recording of the second Christmas Island interview (which was not before the Federal Magistrate, but which (as explained below) I admitted into evidence on the application of the appellant) relevantly stated:

THE INTERPRETER: I apply three times for…

MR ALI: Sorry …. your life is in danger. You mean they told you to say your life is in danger?

THE INTERPRETER: Yeah.

MR ALI: Okay. So they told me to say your life is in danger. I applied?

THE INTERPRETER: For Australian visa three times and I got rejected, that’s why I came this way.

MR ALI: So what’s your reason for coming here?

THE INTERPRETER: Because I have company here. I have my business partner.

MR ALI: I have company and business partner in Australia you mean?

THE INTERPRETER: Yeah. And I apply three times. Australian Government didn’t give me visa that’s why I had to come this way.

MR ALI: So just to confirm again. Your reason for coming to Australia was just to continue your business in Australia because you had visas rejected before?

THE INTERPRETER: Yeah. I had to be here because I have business and I have my business partner here. Yeah. If they given visa, I would have actually – I wouldn’t come this way, which is ‘98/99 ….

MR ALI: Nineteen?

THE INTERPRETER: 1998 or ’99 …. I get involved with this initially. The ….

MR ALI: Yep, yep, yep, yep. So in terms of running away from someone who’s killing you or prosecution or anything, you have no such issues? Your reason, just to come to Australia and continue with your business. Is that correct?

THE INTERPRETER: Yeah. I just came here to continue the business. I don’t have any …

MR ALI: So do you have any reason for not wishing to return to your – back to your country?

THE INTERPRETER: Afghanistan, as you know, is a dangerous place, and especially for people that have business and are rich. They will kidnap – or they will be kidnapped because there is ….

MR ALI: So people who have business and rich, they will be kidnapped and ---

THE INTERPRETER: They will be kidnapped or maybe kidnapped or killed. ….one of our relatives …. the same area, he will …. Kabul.

15    On 31 July 2010, the appellant requested a refugee status assessment (“RSA”).

16    In the appellant’s statutory declaration in support of the RSA, he stated that he believed that he would face “a real chance of harm for reasons of my religion, being Shia and my ethnicity, being Hazara, I will be killed. I will be targeted because my family were very wealthy in Afghanistan and whatever possessions we have left will be confiscated by the Taliban. I will be abducted by the Taliban for a ransom. I believe if I return to Afghanistan, I would be at a real risk of facing serious harm by the Taliban because I am Hazara Shia and from a wealthy Hazara family”.

The RSA interview

17    A transcript of the appellant’s interview with the RSA officer on 3 August 2010, indicates that the RSA officer appeared at first unaware that the appellant had retracted information he had given in the first Christmas Island interview in a second interview. The appellant explained to the RSA officer that he had changed his story.

18    It was not contended that the appellant maintained the lies told in the first Christmas Island interview at the RSA interview.

19    On 18 October 2010, the RSA officer found that the appellant did not have a genuine fear of harm, a real chance of persecution or a well-founded fear of persecution. The RSA officer concluded that the appellant did not meet the definition of a refugee and was not a person to whom Australia owed protection obligations.

Independent merits review

20    On 11 November 2010, the appellant requested an independent merits review and filed submissions dated 7 February 2011.

21    At the interview with the IMR on 16 May 2011, the appellant was assisted by a migration agent and an interpreter.

22    In his statement of reasons dated 7 October 2011, the IMR stated that he had before him material including the record of the first Christmas Island interview conducted on 4 May 2010, the second Christmas Island interview on 1 July 2010, the statutory declaration made in July 2010 and the RSA officer’s decision.

23    The IMR expressly recognised that after the first Christmas Island interview, the appellant stated that he wished to change the information he had given and did so at the second Christmas Island interview.

24    The IMR set out the different accounts the appellant gave at the first and second Christmas Island interviews.

25    The IMR noted that at the second Christmas Island interview (at [21]):

The claimant said that had he been granted a visa to enter Australia he would not have had to come ‘this way’ ie as claiming to be a refugee. When specifically asked to confirm why he had come to Australia, the claimant is reported as saying:

“I had to be here because I have a company and business partner here. If they [the Australian Government] would have given me a visa, I would (sic) have come this way. I have no life threatening problems/prosecutions. I just came here to continue with my business.”

In the context of the above statement the reference to him having ‘no life threatening problems/prosecutions’ is to him not having such in Afghanistan. However he also said that Afghanistan was a ‘..dangerous place especially for people who have businesses and are rich’.

26    The IMR noted that in his statutory declaration, the appellant claimed that he would be targeted and held to ransom by the Taliban for being a wealthy Hazara. Further, the appellant claimed that the police, being Pashtun, would not protect him because he was a Hazara Shia and recognisable as such by his appearance, accent and prayer methods. Further, the Afghan government could not protect themselves or the appellant.

27    The IMR stated at [29]-[31]:

29    When asked why he had given a false story at the first Christmas Island interview he said he had been advised by people smugglers when in Indonesia on his way to Australia that Australia may not accept him if he had been living in a country other than Afghanistan. The claimant confirmed that he had previously lodged three visa applications to enter Australia and that they all been refused.

30    The claimant also said that because he had been living away from Afghanistan that if he returned the Pashtu/Taliban would be likely to think he was a spy.

31    It was put to the claimant that he faced a credibility issue as the result of giving different stories at different times. It was also put to him that his claim for refugee status did not demonstrate a connection to the Convention reasons for the grant of refugee status. The claimant again stated that it was not safe for him to return to live in Afghanistan as a member of a rich family his safety would be compromised.

28    The IMR identified the appellant’s claimed grounds of fear of persecution as his membership of a social group of wealthy returnees, his ethnicity as a Hazara and/or his religious belief as a Shia Muslim and his imputed political opinion of opposition to the Taliban because he had lived outside Afghanistan and was a returnee from a Western country.

29    The IMR considered country information about Afghanistan’s general background, Hazaras, the Taliban, Kabul, Parwan province (where the appellant was born) and Balkh province (in the capital of which the appellant’s family lived until he was about 20 months old).

30    The IMR found that the appellant was an Afghan citizen of distinctive Hazara appearance, who spoke a dialect spoken by most Hazaras. The IMR found that the appellant had no right to permanent or temporary residence in any country other than Afghanistan.

31    The IMR stated at [62]:

62    I am satisfied that, in order to strengthen his claim to asylum in Australia, after a recommendation for him to do so made by people smugglers in Indonesia, the claimant gave false information about his circumstances in the first Christmas Island interview. Curiously, he not only created a false account of what had happened to him, but he also falsified information about his given names and family details. Adopting this approach does nothing to enhance the claimant’s credibility. That he volunteered to subsequently admit that he had given false information, ameliorates but does not entirely excuse the dishonest course upon which he originally embarked. For the reasons stated later the claimant’s description of his circumstances given in the second Christmas Island interview do not leave me satisfied that, even when purporting to give a true account, the description given can be relied upon.

32    The IMR did not accept that Hazara Shia Muslims were subject to persecution on that basis per se.

33    The IMR considered that there was no real chance of persecution if the appellant returned to live in the Surkh Parsa district of Parwan province or Mazar-e-Sharif in Balkh province and that he could live safely in Kabul.

34    Nor did the IMR consider that there would be a real chance of the appellant suffering persecution as a travelling Hazara Shia Muslim due to Taliban road blocks.

35    The IMR then stated at [71]-[72]:

71    Regardless of the above findings there are other reasons why in my view the claimant cannot be considered a refugee.

72    The claimant has made contradictory statements about the level of danger that he claims to face in Afghanistan. In the second Christmas Island interview he said, after saying he came to Australia ‘this way’ because he could not obtain a visa, that he had no life threatening or ‘persecution’ problems [prior to leaving Afghanistan] and that he just came to Australia to continue with his business. The reference to ‘persecution’ issues I take to be a reference to ‘persecution’ as there is no suggestion in anything before me that he is being prosecuted for any offence or offences. Yet in answer to the next question he said that Afghanistan is ‘...a dangerous place especially for people who have business (sic) and are rich’. Even making due allowance for the fact that the claimant did not have an extensive formal education, that his statements involve translation which can confuse what is being asked as well as any reply given, and that he may be traumatised by the perils of boat travel in the open seas from Indonesia, I am satisfied that the contradictions in what he has said greatly diminish the credibility of his claims for refugee status under the Convention and provide an additional compelling reason for the rejection of those claims.

36    The IMR also noted that the appellant’s return to Afghanistan two or three times to visit family members and obtain an entry visa to Japan, with no pressing need to do so (as he was wealthy and could obtain visas elsewhere) was inconsistent with, and belied, his claim to a well-founded fear of persecution.

37    The IMR identified a “further and final reason” for not making a recommendation in the appellant’s favour, as follows (at [75]-[76]):

75    There is a further and final reason why I am satisfied that I should not make a recommendation in favour of the claimant. As stated earlier in these reasons I accept the claimant’s, statement made in the second Christmas Island interview that he has unsuccessfully attempted in the past, on three separate occasions, to secure a visa to enter Australia. The claimant, when asked in the same interview why he had given a false account in the first Christmas Island interview, is reported as saying that he came to Australia ‘this [way] (ie in a boat claiming refugee status) because he was unable to secure a visa’. He later confirmed in the same interview ‘I came to here to continue with my business’.

76    While conscious that it is possible for a person to have both a business interest in coming to Australia and a coexisting well founded fear of persecution for a Convention based ground, I am satisfied that this is not so in the claimant’s case. If it was the case then the claimant’s fear of persecution would have prevented him from returning to Afghanistan for inessential visits after his family left it in 1996/7. That he felt it safe enough to return on a number of occasions belies his claim to have a well founded fear of persecution. His reason for coming to Australia is not Convention based and is inconsistent with him coming to Australia because he feared persecution.

38    The IMR concluded at [77]:

77    Because I am satisfied that the claimant does not have a well founded fear of persecution it is not necessary for me to consider whether he belongs to a ‘particular social group’, whether that group be wealthy Hazaras who are likely to be targeted for ransom payments or because Hazara Shia Muslims are unable to rely on state protection because protection is denied or with-held from them by a Pashtun dominated police force on the basis of their ethnicity and/or religious beliefs.

39    The IMR observed that the appellant’s claim of risk of persecution on the ground of holding an imputed political opinion, while raised was apparently not sustainable.

The Federal magistrate’s decision

40    Before the Federal Magistrate, the appellant relied on the following grounds:

A.    The Second Respondent failed to accord the applicant procedural fairness.

PARTICULARS

(1)    The Second Respondent, failed to consider one of the claimed bases for the applicant’s fear of persecution, that being that the state of Afghanistan is unwilling or unable to protect the applicant from harm, and the state’s failure to protect is for a Convention reason

(2)    The Second Respondent failed to consider one of the claimed bases for the applicant’s fear of persecution, he was a member of a social group of wealthy Hazaras who are likely to be targeted for ransom payments;

(3)    The Second Respondent failed to consider one of the claimed bases for the applicant’s fear of persecution, namely that he is returning from a Western country.

(4)    Second Respondent failed to properly consider one of the claimed bases for the applicant’s fear of persecution, namely that as a Hazara person he may be subject to persecution by way of discrimination.

B.    Alternatively to (A), the Second Respondent IMR acted without or in excess of jurisdiction in that it failed to deal with the integers of the Applicant’s claim listed above at (1)-(4).

C.    The Second Respondent failed to put adverse information to the applicant, denying the applicant procedural fairness.

PARTICULARS

The Second Respondent’s decision contains country information, which was adverse to the applicant, which was not put to him namely country information that supports the proposition that middle and rich Afghans can live in Kabul free of persecution because of their ethnicity.

D.    The Second Respondent engaged in illogical reasoning to such an extent that the IMR acted without or in excess of jurisdiction.

41    The Federal Magistrate, in reliance on a number of authorities, held that even if the grounds were established, it was appropriate to exercise his discretion to withhold relief, as the appellant had shown bad faith. His Honour stated [14]-[15]:

14. Even if one or all of the grounds in the application for judicial review were made out and it was established that the applicant was denied natural justice, the Court would withhold relief as a matter of discretion.

15.    Quoting from NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199 at [11]:

“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90]”.

And at [12]:

“As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]

‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld’”.

See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).

The Court finds that there has been “bad faith” by the applicant.

42    The Federal Magistrate also found that even if the IMR had erred, it was not appropriate to remit the matter for reconsideration, as there was an independent and unimpeachable basis for the IMR’s decision. His Honour stated [16]-[20]:

16.    Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33].

…

18.    The independent and unimpeachable basis for the decision here that the applicant does not have a well founded fear of persecution for a Convention reason (CB p.181 [76]), is that he came to Australia for business reasons, and has no life threatening problems/persecution in Afghanistan (CB p.37). The Court finds no error of law in the IMRA that the applicant not be recognised as a refugee in circumstances where he came to Australia for business reasons without any fear of persecution in Afghanistan.

…

20.    There is another independent ground to withhold relief. That is that the applicant lied in his arrival interview, and to the IMR. Obviously he did that to obtain a visa by deception. Providing false implementation is a breach of s.101 of the Migration Act 1958.

43    The Federal Magistrate concluded at [22]:

22.    The Court therefore withholds relief as a matter of discretion because of the independent unimpeachable ground for the decision, and because the applicant lied in an attempt to obtain a visa by deception. Whatever be the grounds for challenging the IMRA, it cannot be held that the IMR erred in law in not finding the applicant to be a refugee where he stated that he is in Australia for business reasons and not because he fears persecution in Afghanistan.

Grounds 1 and 4

44    As grounds 1 and 4 overlap, it is convenient to discuss them together. Under ground 1, the appellant alleged that the Federal Magistrate erred in law in exercising his discretion to refuse relief and denied procedural fairness in circumstances where:

(a)    the Independent Merits Reviewer accepted that the Appellant gave false information in his initial entry interview after a recommendation for him to do so made by people smugglers in Indonesia;

(b)    the Appellant corrected the answers that he gave in his initial entry interview after he requested a second entry interview, that request having been made at a time when his initial version of events had not been questioned, and prior to his application for a Refugee Status Assessment;

45    Under ground 4, the appellant alleged that the Federal Magistrate misconceived his function by making factual findings based on the appellant’s answers in the two Christmas Island interviews, or alternatively, made erroneous factual findings. In the amended notice of appeal, the alleged factual errors were particularised as follows:

(i)    The Federal Magistrate found, at [20], that the Appellant had lied to the Independent Merits Reviewer, in circumstances where no such finding was made by the Independent Merits Reviewer.

(ii)    The Federal Magistrate found, at [13], that the Appellant had come to Australia in 2010 without any fear of persecution, which involved selective reliance upon evidence given by the Appellant during his second interview, and which was contrary to the Independent Merits Reviewer’s finding (at [66]) that “the claimant may have a subjective fear of persecution from the Taliban”.

46    Before me, the appellant alleged that the Federal Magistrate made additional factual errors, as he:

(a)    incorrectly found that the appellant lied in an attempt to obtain a visa by deception;

(b)    incorrectly found that the appellant lied in his arrival interview and to the IMR; (emphasis added)

(c)    included in his reasons incorrect dates for the appellant’s arrival (stated to be 8 April 2012, but was 8 April 2010) and the appellant’s application for an RSA (stated to be 4 May 2012 but was in fact 31 July 2010); and

(d)    incorrectly found that the appellant came to Australia in 2010 without any fear of persecution.

47    Grounds 1 and 4 are predicated on the correct history of the matter, which before me was undisputed. Namely, that the appellant lied at the first Christmas Island interview but, on his own initiative, sought the second Christmas Island interview and voluntarily corrected the lies prior to seeking an RSA. Further, he did not repeat or maintain the lies before the RSA officer or the IMR.

48    As discussed below, however, the Federal Magistrate’s reasons contain a considerable number of factual errors and mistakes. The reasons do not demonstrate that his Honour correctly understood the history of, and principal facts in, the proceeding. To the contrary, the reasons, read according to their ordinary meaning, indicate that, among other errors, the Federal Magistrate mistakenly apprehended that the appellant told or maintained lies before the IMR.

49    The appellant submitted that while the reasons gave rise to uncertainty, the IMR erred in any event, on alternative bases.

50    First, the appellant submitted that the IMR erred if he exercised the discretion to refuse relief on the correct factual basis that the appellant told lies at the first Christmas Island interview which he subsequently voluntarily corrected. Although the authorities established a discretion to withhold relief where there was “bad faith” or “unclean hands”, all the decided cases in which relief was withheld on that basis involved dishonesty equivalent or akin to fraud, which was not voluntarily retracted, but maintained with intent to secure an advantage. No identified case involved the exercise of the discretion because a claimant told lies which he retracted on his own initiative, before they were detected or could play any role in securing a benefit. Rather, the authorities indicated that the refusal of relief should be extraordinary or unusual. The exercise of the discretion in this case was an unjustifiable extension and misapplication of principle.

51    As a related point, the appellant submitted that in this case, the appellant did not tell lies in the context of “the transaction”, as required in The King against Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 (“Ozone Theatres”), but only at a preliminary stage, before he had made any application for the benefit in the form of a protection visa.

52    The appellant submitted that (given that a reviewer could exercise the discretion to refuse relief without first determining whether the decision maker had erred) undue expansion of the circumstances invoking the discretion could free decision-makers from the applicable legal restraints and render them immune from judicial scrutiny in every case involving an untruth told at any stage of the process. That approach would have a harsh impact on persons claiming protection as refugees, who were, as recognised in Abebe v Commonwealth of Australia (1999) 197 CLR 510, particularly vulnerable to the temptation to embroider or enhance their accounts.

53    Alternatively, the appellant submitted that the Federal Magistrate erred if his decision to withhold relief were based on the misapprehension that the appellant maintained the lies before the IMR, by reason of fundamental factual error.

54    Before me, senior counsel for the first respondent did not, in terms, concede that the IMR made material factual errors. The first respondent disputed that the Federal Magistrate mistakenly apprehended that the appellant had maintained lies before the IMR. Rather, the first respondent submitted that despite the way in which the reasons were expressed, it could be inferred that the Federal Magistrate correctly understood the facts. First, when the Federal Magistrate stated that the appellant made untruthful statements to the IMR, or “told the IMR” false statements, he included references to pages in the court book which, if consulted, would have revealed that the untrue statements in question were not made to the IMR, but at the first Christmas Island interview. Secondly, the Federal Magistrate’s statement that the appellant made untrue statements to the IMR was accurate, when read in context, in the sense that the independent merits review hearing was part of a continuing process, and all the material from the earlier stages was before the IMR.

55    Thirdly, the first respondent submitted that the Federal Magistrate’s reasons included various inconsistent statements made by the appellant at different stages of the process, thus indicating that the Federal Magistrate must have been aware that the appellant made contradictory statements at different times and hence, that the appellant’s initial untruths were corrected.

56    Fourthly, the first respondent relied on the transcript of the hearing before the Federal Magistrate, in which counsel for both parties (and, in particular, counsel for the appellant during the reply) informed the Federal Magistrate that the appellant had corrected the lies. It could therefore be inferred that contrary to his statements in the reasons, the Federal Magistrate accurately understood the circumstances.

57    The first respondent submitted that, as the relevant authorities made clear, the Federal Magistrate was entitled to exercise his discretion to withhold relief without first finding whether there was jurisdictional error. Further, the discretion could properly be exercised on the basis of the appellant’s lies at the first Christmas Island interview, despite the subsequent correction.

58    The first respondent submitted that the Federal Magistrate did not articulate a general rule that relief should be refused in all cases where a lie was told at an early point and subsequently corrected. Rather, his Honour exercised his discretion legitimately in relation to the particular circumstances of the case.

59    The first respondent also submitted that although the Full Court in SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 (“SZIZO”) accepted that relief should be denied only exceptionally, the High Court authorities prescribed no precise rules for the exercise of the discretion and demarcated no particular level or type of deception, lying or false statement which would justify it. It remained a matter of fact and degree in the discretion of the relevant judge or magistrate, any appeal from which was governed by the principles in House v R (1936) 55 CLR 499.

60    The first respondent submitted that in the present case, the discretion did not miscarry. The Federal Magistrate did not extend established principles, but merely applied them. There was no rule that the discretion should be automatically excluded because a lie was voluntarily retracted before any opportunity to secure a benefit. Nor could entry interviews be plausibly excluded from “the transaction” as they were an integral element of the visa gaining process.

61    The first respondent submitted that comparable decided cases (such as SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 (“SZLHP”), Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525 (“MIAC v Lu”) and SZQBN v Minister for Immigration and Citizenship [2011] FCA 1182 (“SZQBN”)) made clear that an applicant’s dishonesty or participation therein could justify the discretionary refusal of relief. Further, the Federal Magistrate was not bound by the facts found by the IMR in finding bad faith.

RELEVANT AUTHORITIES

62    In Ozone Theatres, certain employers applied to the Commonwealth Court of Conciliation and Arbitration (“the arbitration court”) for relief altering the basic wage in a particular industry in certain states. The arbitration court held that it lacked jurisdiction. The High Court held that the employers were entitled to a writ of mandamus commanding the arbitration court and its judges to entertain the application.

63    The High Court observed that as the arbitration court’s jurisdiction was created for the public benefit or for the purpose of conferring rights or benefits, it was (upon an application properly made) under a duty to exercise its jurisdiction and was “not at liberty to refuse to deal with the matter…Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus” (at 398).

64    The High Court nevertheless recognised that mandamus was neither a writ of right nor issued as a matter of course. Rather, the High Court stated (at 400):

There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.

65    The High Court discussed the discretion as follows (at 400):

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

66    More recently, in Re Refugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 (“Aala”), Gaudron and Gummow JJ discussed in detail the history of the writ of prohibition and whether it (and, by parity of reasoning, the other constitutional writs) were (although not writs of course) to be granted a matter of right and not denied on discretionary grounds. Their Honours discussed the historical judicial debate over whether and in what circumstances a discretion arose. They concluded that there was a discretion to refuse prohibition when exercising the jurisdiction under s 75(v) of the Constitution. In particular, where the prosecutor was not a stranger and prohibition was sought against Commonwealth officers who were members of a Federal Court (at [49]-[50]), there was a discretion to refuse relief, at least when sought against a superior court if the prosecutor had a right of appeal and there was no constitutional question involved (at 50).

67    Gaudron and Gummow JJ stated at [51]-[52] that Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 described the correct approach to the exercise of the original jurisdiction under s 75(v) of the Constitution when prohibition was sought against an officer of the Commonwealth as follows:

If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.

68    Gaudron and Gummow JJ stated at [53]-[56]:

The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions". The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. …

The text and structure of Ch III do not suggest that prohibition should occupy any special position among the constitutional remedies provided in s 75(v). The other two remedies specified there are attended by discretion. This is "well settled" with respect to mandamus. It is a remedy which does not go either as of right or as of course. The same certainly is true of the injunction where, as here, it is a public law remedy. …

No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission. Her Honour said:

“Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. (Footnote omitted.)”

Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd.

69    In SZIZO, the Full Court allowed the appeal from the decision of a Federal Magistrate, who dismissed an application for judicial review of the Refugee Review Tribunal’s (“the Tribunal”) affirmation of a delegate’s decision not to grant the appellant a protection visa. In SZIZO, one appellant had nominated his eldest child as an authorised recipient of all correspondence with the Tribunal, which nevertheless continued to correspond directly with the appellant himself and forwarded a s 425A notice to him. Although the appellant attended the Tribunal hearing and gave evidence, there was no evidence that he ever read the s 425A notice.

70    Lander J (with whom Moore and Marshall JJ agreed) found that the Tribunal’s failure to send the s 425A notice to the authorised recipient was a breach of its obligation under s 441G of the Migration Act 1958 (Cth) (“the Act”). It amounted to jurisdictional error and invalidated the Tribunal’s decision.

71    Lander J referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (“SAAP”) where McHugh J stated at [83]-[84] that:

If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v) of the Constitution. There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for “trivial” breaches of the requirements of procedural fairness.

If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands.

72    Lander J stated at [97]:

It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.

73    In NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 (“NAWZ”), on which the Federal Magistrate in this case relied, an applicant made a false application for a protection visa using an Afghan identity and pseudonym, which he thought would improve his chances of success. When the false application was refused, the applicant lodged a second application in his own name, as a citizen of Pakistan. At interview, the applicant denied having lodged the first false application and maintained the false denial before the delegate, the Tribunal and the primary judge.

74    The Full Court stated at [10] to [14]:

The appellant, in our view, has so conducted himself both in relation to the Minister and to the Court as to disentitle himself to the award of discretionary relief even if it be assumed that his fresh ground of appeal has technical merit. The respondent Minister has made submissions to this effect. Despite the appellant’s contention to the contrary we do not consider that it was necessary for a Notice of Contention to be filed for this purpose.

It is well accepted that ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441 at [90].

…

The appellant has twice attempted to practise deception upon the Minister, first by making a bogus claim for refugee status and then, by denying that he was personally implicated in the making of that claim. His same lack of candour infected his approach to proceedings in this Court — until he was disbelieved. He has demonstrated no particular solicitude to advance whatever claim he may have in his own right to seek a protection visa. His second claim was made almost two years after he arrived in Australia and seven months after the false application had been refused.

The appellant has sought consistently to avoid the consequences of his own actions. This late-raised ground of appeal is another instance of this. We would deny him the relief sought even if he could make out the ground relied upon. It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.

75    In SZLHP, the Full Court (Branson, Lindgren and Graham JJ) dismissed the appeal of an applicant, a citizen of China for a protection visa who, on his migration agent’s advice, misrepresented his identity, citizenship and personal history both before the delegate and the Tribunal.

76    The migration agent advised the applicant not to attend the Tribunal hearing, as attendance would disclose that he was not (contrary to his assertions) a citizen of Indonesia. The applicant co-operated with the agent’s fraudulent proposals and obtained a medical certificate to explain his failure to attend the hearing.

77    The Federal Magistrate held that the applicant was a knowing and independent co-perpetrator of the fraud on the Tribunal and could not rely on it to invalidate the Tribunal’s decision. His Honour stated that even if jurisdictional error in the Tribunal were established, he would have refused relief on the grounds that the applicant deceived both the Minister and the Tribunal and had delayed in commencing the proceeding (at [21]).

78    On appeal, Branson J stated at [14]:

In this case the appellant knowingly signed an application for a protection visa that was made in a false name and which falsely asserted that he was a citizen of Indonesia. His explanation for his conduct in this regard is that his migration agent said to him words to the effect:

“You are entitled to stay in Australia but you have to lodge a protection visa application. Since you have no Chinese identity papers I will use your Indonesian passport to lodge the protection visa application.”

He claimed that as he had no idea how to apply for a protection visa he fully authorised the migration agent to deal with his case.

79    Branson J referred to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (“SZFDE”). Her Honour stated at [18] that it could be distinguished “in at least one critical respect. The appellants in SZFDE were not complicit in any attempt to deceive the Tribunal. … By contrast, the appellant knowingly embarked on a course of conduct calculated to deceive the relevant Australian authorities as to his true identity, citizenship and personal history. Moreover, he took no steps, as it seems, for nearly a decade to disclose the true position to the Department of Immigration or any other Australian authority”.

80    Branson J further stated at [20]:

In the circumstances of this case, appreciation by the Tribunal of the true reason why the appellant was unwilling to attend the Tribunal hearing could hardly be suggested to raise an issue of the miscarriage of the Tribunal’s power. The appellant was not fraudulently deceived by the migration agent as to the true reason why the migration agent did not want him to attend the Tribunal hearing. The reason why the migration agent advised the appellant not to attend the Tribunal hearing was that his attendance would make plain the falsity of the grounds on which he sought review of the decision of the Minister's delegate. The appellant understood this and cooperated with the migration agent by obtaining the medical certificate in attempted explanation of his failure to attend. There was no relevant fraud “on” the Tribunal in the sense discussed by the High Court in SZFDE 232 CLR 189

81    Lindgren J stated at [27] and [28]:

I agree with Branson J at [18] and Graham J at [93], that the fact that the appellants in SZFDE 232 CLR 189 were not complicit in any attempt to deceive the Tribunal distinguishes that case from the present one. In the present case, the Federal Magistrate made the same distinction: SZLHP v Minister for Immigration and Citizenship [2008] FMCA 359[RTF] at [99].

The appellant accepts that if he had initiated or was a party to the fraud, he would have no cause for complaint: see, for example, NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 160 at [27], [30], [31]; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [13], [14]. It would be perverse if a person whose fraud practised on the Tribunal had caused it not to accord that person natural justice could be heard to complain.

82    Graham J stated at [83]:

In addition, counsel for the appellant submitted that the learned Federal Magistrate erred in finding, in the alternative, that even if jurisdictional error had been shown, the learned Federal Magistrate's exercise of his discretion to withhold constitutional writ relief had miscarried.

83    His Honour rejected that submission, noting at [86] that “[t]he learned Federal Magistrate was correct in highlighting that SZFDE had been a victim of fraud whereas SZLHP was privy to or a party to such fraud as there may have been” and concluding, inter alia at [94], “[f]inally, if there had been a case of jurisdictional error, I would take the view that the Court should not disturb the exercise by the learned Federal Magistrate of his discretion to refuse constitutional writ relief, as he did. The unwarranted delay and bad faith of the appellant militate in favour of a refusal of any such relief (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56]-[57])”.

84    In MIAC v Lu, a fraudulent third party advised the holder of a higher education visa:

1.    to decline an invitation to attend a tribunal hearing, and not to provide any further information, in relation to her application for review of a delegate’s decision not to revoke the automatic cancellation of her visa; and

2.    instead, to pay the third party a considerable sum of money to be used to “get round” the Tribunal.

85    The applicant complied with the above advice and thus lost the opportunity to appear and to provide further information. The Tribunal affirmed the delegate’s decision not to revoke the automatic cancellation of the visa.

86    A Federal Magistrate concluded that the third party’s fraud had induced the applicant’s decision not to respond to the Tribunal’s invitation and the exercise of the Tribunal’s jurisdiction was therefore disabled.

87    On appeal, the Full Court (Ryan, Rares and Katzmann JJ) allowed an appeal from the Federal Magistrate’s decision.

88    The Full Court stated at [40]:

In the respects which we have indicated, Ms Lu's choice not to respond to the Tribunal’s invitation can be seen as motivated by her desire to pursue a different route to achieve her goal of obtaining a visa. Ms Lu acted at the behest of Ms Zhao to ignore the request of the Tribunal because she intended to “get around” it by paying a bribe. His Honour's finding that she did so because Ms Zhao’s ruse was a fabrication cannot work to Ms Lu's advantage. Ms Lu was a conscious participant in what she understood was an attempt to subvert the outcome (affirmation by the Tribunal of the cancellation of her visa) that would occur because she chose not to respond to the Tribunal’s invitation. The fact that Ms Lu was duped by Ms Zhao into thinking that Ms Zhao would facilitate payment of a bribe from Ms Lu's extravagant payments to her demonstrates that the Tribunal’s processes were not affected by fraud. Rather, Ms Lu intended to engage in a fraud to “get around” the result in the Tribunal she knew her conduct would produce. This is similar to the choice made by the applicant in SZHVM where Middleton J held, in the passage quoted at [22] above that the processes of the Tribunal had not been disturbed.

89    The Full Court also stated at [44]-[45]:

If we be wrong in the conclusion just reached that the Tribunal in this case had not relevantly been disabled from the discharge of its statutory functions, we consider that Ms Lu should have been refused, on discretionary grounds, relief in the form of a writ of certiorari or mandamus. It is clear that the learned federal magistrate, in the paragraph quoted at [20] above which he devoted to the exercise of discretion, did not take into account a matter relevant to the exercise of his discretion, namely that Ms Lu, as a result of her complicity in the bribery and corruption proposed by Ms Zhao, had effectively caused the conduct of the Tribunal from which she sought prerogative relief in the Federal Magistrates Court.

In our view, it would be rarely, if ever, that the personal circumstances of an applicant, however meritorious when considered in isolation, could outweigh knowing involvement by that applicant in an endeavour corruptly to pervert the legal or administrative processes for the regulation of his or her status. For the reasons explained by Branson and Graham JJ in the passages from SZLHP quoted at [27] and [28] above, the present is not such a case.

90    In SZQBN v Minister for Immigration and Citizenship [2011] FMCA 408, a Chinese citizen’s visitor’s visa was cancelled after its holder was interviewed at an airport after the authorities received information from China that he had kidnapped his daughter there and intended to apply for a protection visa in Australia using fraudulent documents. The appellant was not provided with that information during the interview, as required by s 120 of the Act.

91    A Federal Magistrate dismissed an application for review of the cancellation decision, having found that the appellant gave untruthful answers in the interview and had provided other inconsistent information.

92    The appellant appealed to the Federal Court on the following grounds:

The first ground alleges that his Honour erred in holding that the appellant’s alleged bad faith in falsifying his intention to be a genuine visitor to Australia was sufficient to deny him relief in circumstances where the decision to cancel his visa was affected by breaches of procedural fairness.

The second ground of appeal raised by the appellant asserts that it was not open to the Federal Magistrate to find, to the requisite standard of proof, that the appellant had displayed bad faith in his dealings with the delegate.

93    Cowdroy J dismissed the appeal. His Honour referred to NAWZ and to MIAC v Lu and concluded at [35]-[36]:

The court is satisfied that there was ample evidence to enable his Honour to reach the conclusion which he did, namely that the appellant had attempted to mislead the Minister by giving false answers to questions asked of him during the interview, and that thereby he engaged in bad faith. The court considers that upon the evidence, the Federal Magistrate was justified in concluding that the appellant’s claims were implausible.

The breach of s 120 of the Act does not lead to the consequence that the Minister cannot find, in the exercise of a discretion, the existence of bad faith on the part of the appellant: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108 [56]; NAWZ at [10]–[14]. The obligation remained upon the appellant to satisfy the Minister that the visa should not be cancelled. It was the inconsistent information given to the delegate which ultimately led the Minister to conclude that the appellant had engaged in conduct in bad faith.

94    Cowdroy J then considered whether it was open to the Federal Magistrate to conclude that there was bad faith in the appellant’s dealings with the delegate. Having considered the evidence, his Honour concluded that “[t]he court is unable to find any error in his Honour [sic] conclusion”.

95    Counsel for the first respondent stated that Cowdroy J’s judgment in SZQBN upholding the Federal Magistrate’s decision was set aside by consent in the High Court (on the basis of errors in relation to the nature of an appeal from the Federal Magistrate to the Federal Court) and remitted to the Federal Court for hearing. The High Court made no pronouncement as to whether the Federal Magistrate was in error.

Discussion of grounds 1 and 4

96    The Federal Magistrate’s reasons for decision contain a considerable number of significant factual errors. They state an incorrect arrival date and state that the appellant applied for an RSA on 4 May 2012 (which was in fact the date of the first Christmas Island interview in 2010 at which the appellant made the false statements). Among other errors, the reasons incorrectly attribute statements that the appellant made at the second Christmas Island interview (to correct his earlier untruths) to the RSA interview. The reasons incorrectly state that there was a second RSA interview and attribute statements the appellant made at the second Christmas Island interview to the non-existent second RSA interview.

97    In paragraphs [9]-[11], the reasons erroneously state that the appellant made certain statements to the IMR, although they were in fact made in the first or second Christmas Island interviews. At paragraph [9], the reasons set out a statement which was untrue and state that the appellant made it to the IMR. In [10], the reasons set out another statement, which was also untrue and state that the appellant “told [it to] the IMR”.

98    In paragraph [20], the reasons incorrectly state that “the applicant lied in his arrival interview and to the IMR” and that the appellant “obviously did that to obtain a visa by deception”. The latter observation, which was repeated in paragraph [22] is erroneous, at least in the sense that the lies were corrected before the appellant applied for an RSA.

99    Further, the transcript of the second Christmas Island interview (which I admitted on appeal) was not before the Federal Magistrate. The Federal Magistrate relied on notes of the second Christmas Island interview, which recorded that the appellant stated “I have no life threatening problems/prosecution. I just came here to continue with my business”. The transcript of the second Christmas Island interview indicates that the appellant did not state that he had no life threatening problems/prosecution.

100    The transcript of the hearing before the Federal Magistrate indicates that counsel for the first respondent made clear, and counsel for the appellant, on at least two occasions in oral submissions in reply stated, that the appellant had corrected the lies made at the first Christmas Island entry interview at an early stage and did not maintain the lies before the Federal Magistrate. The Federal Magistrate’s recorded responses suggest that he apprehended that the appellant had corrected the untrue statements.

101    Nevertheless, the Federal Magistrate’s reasons for judgment, standing alone, convey the opposite impression. There is no reference to the fact that the appellant corrected the lies at the second Christmas Island interview and did not maintain them thereafter. To the contrary, the Federal Magistrate’s reasons contain numerous statements that the appellant made the untrue statements to or before the IMR.

102    It is true that the transcript of the hearing before the Federal Magistrate indicates that his Honour was aware, and the material in the court book references cited would have disclosed (if read and understood), that the untrue statements were made at the first Christmas Island interview. The reasons, however, contain numerous instances of erroneous identification and confusion of material, a very deliberate statement that the appellant lied in his arrival interview and to the IMR and repeated statements that the appellant made untrue statements to the IMR. The reasons also state that the appellant lied to obtain a visa by deception. That is not, in my view, an apt characterisation of the appellant’s conduct in correcting the untruths prior to making an application for an RSA. In such circumstances, I was not satisfied that the Federal Magistrate’s repeated statements that the appellant made untrue statements or lied to the IMR were mere typographical or clerical errors, and that the Federal Magistrate’s reasons were based on the factually correct understanding that the appellant did not tell lies before the IMR, but only at the first Christmas Island interview, which he voluntarily corrected at the second Christmas Island interview prior to applying for an RSA.

103    The Federal Magistrate at no stage defined or expressly specified the nature of the bad faith which led him to conclude that prerogative relief should be refused, even if there were jurisdictional error. Accordingly, the uncertainty attending the basis of his Honour’s determination cannot be dispelled.

104    In light of the above, however, I infer that the appellant’s supposed conduct in lying to, and attempting to deceive, the IMR, were significant elements in the Federal Magistrate’s finding of bad faith.

105    As it is common ground that the appellant did not lie before, or attempt to deceive, the IMR, the Federal Magistrate’s discretion was exercised on the basis of a fundamental factual error and therefore miscarried.

106    In my opinion, therefore, grounds 1 and 4 are made out on that basis.

Alternative basis for above grounds

107    Both parties nevertheless argued their case on the alternative basis that (despite the way in which the reasons were expressed) the Federal Magistrate apprehended, and exercised his discretion solely on the basis that the appellant had corrected his untruths at the second Christmas Island interview and did not repeat or maintain them. As stated above, the appellant submitted that the discretion thereby miscarried, which the first respondent denied.

108    The present case is an inappropriate vehicle for determining the legitimate ambit of bad faith or unclean hands for the purposes of exercising the discretion, as on any normal reading of his reasons, the Federal Magistrate found bad faith on the erroneous factual basis that the appellant told lies to the IMR. Due to the opacity of and the many factual errors in the Federal Magistrate’s reasons, the basis on which he found bad faith remains elusive. In my view, however, it is unlikely that (if the Federal Magistrate understood that the lies were corrected at the second Christmas Island interview) he found bad faith solely on the basis that the lies were told. The Federal Magistrate (who did not have access to the transcript of the second Christmas Island interview) also found, and emphasised in his reasons, that the appellant stated (based on the notes of the second Christmas Island interview) that he came to Australia for business reasons and had no life threatening problems/persecution in Afghanistan. Although the transcript indicates that the appellant did not, in terms, state, or, as a matter of substance convey, that he had no life threatening problems or persecution in Afghanistan, the apprehension that he did so appeared influential in the Federal Magistrate’s finding of bad faith.

109    In recognition of the submissions of the parties, I nevertheless briefly consider the disputed question.

110    In my view, the term “transaction” was not used in Ozone Theatres as a term of art, and in the present case, could extend to interviews prior to the formal application for an RSA.

111    In my opinion, the authorities contemplate that the exercise of discretion to refuse relief for jurisdictional error due, inter alia, to bad faith or unclean hands is properly the exception, not the rule. The discretion, by its very nature, is not to be exercised routinely in every case involving conduct which could be characterised as bad faith or unclean hands. The decided cases indicate that bad faith justifying the exercise of the discretion is characteristically constituted by significant dishonesty on which an applicant relies to subvert the proper processes of, and secure an advantageous outcome in, the relevant transaction or court proceeding. No authority was cited in which relief was withheld solely due to dishonesty which the claimant voluntarily renounced before it could play any role in achieving an illegitimate purpose. To refuse relief in such circumstances would travel beyond the facts of the decided cases and would seem to penalise, rather than encourage, the abandonment, of a deceitful course of conduct.

112    The exceptional exercise of the discretion does not exclude the possibility that it could, in some circumstances, be justified on the basis of lies which the claimant voluntarily retracted before using them in a dishonest attempt to secure an advantage.

113    Nevertheless, if (contrary to the views expressed above) the Federal Magistrate in this case had exercised his discretion on the sole basis of the initial lies that the appellant told on the advice of people smugglers and voluntarily corrected prior to applying for an RSA, in my opinion, the discretion would have miscarried, as on such facts, the decision would be unreasonable and plainly unjust.

Ground 2

114    Ground 2 alleges:

2.    The Federal Magistrate denied the Appellant procedural fairness when he exercised his discretion to refuse to grant relief to the Appellant on the basis that the Appellant had acted in bad faith because he had lied in his initial entry interview, in circumstances where:

(a)    the Independent Merits Reviewer accepted that the Appellant gave false information in his initial entry interview after a recommendation for him to do so made by people smugglers in Indonesia;

(b)    the Appellant corrected the answers that he gave in his initial entry interview without any prompting and prior to his application for refugee status;

(c)    the Minister did not contend that relief should be refused on the ground that the Appellant had acted in bad faith, or on any other discretionary ground;

(d)    the possibility of discretionary refusal of relief on this ground was first raised with the Appellant during his counsel’s submissions in reply; and

(e)    the Appellant did not have an adequate opportunity to put on evidence to explain the reasons that he had given the answers that he gave in his initial entry interview, or to put those answers in context notwithstanding the fact that this was the critical issue upon which the decision to deny him relief because he had acted in bad faith was based.

115    Under ground 2, the appellant complained that his counsel did not have an adequate opportunity to meet the prospect that relief would be denied on discretionary grounds (which the first respondent did not seek) but the Federal Magistrate himself raised during the appellant’s counsel’s reply. The Federal Magistrate relied, in that context, on the handwritten notes which record that the appellant stated that he came to Australia without any fear of persecution. The appellant submitted that the late stage at which the Federal Magistrate raised the discretionary refusal of relief deprived him of the opportunity to tender a transcript of the second Christmas Island interview, which would have revealed that the notes on which the Federal Magistrate relied were not a verbatim and comprehensive record of the second Christmas Island interview. Rather, the transcript indicated that the appellant responded to a series of “leading questions”, the relevant comment was directed at why he chose Australia as a destination, rather than whether he feared persecution in Afghanistan, and the appellant then stated that as a member of a wealthy family, he feared kidnapping by the Taliban in Afghanistan.

116    The appellant sought to tender the transcript of the second Christmas Island interview pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), which provides:

27    Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

117    The appellant submitted that the discretion under s 27, which was wide, and in terms unfettered, should, given its remedial nature, be liberally construed. In the present case, the issue arose at a late stage in the hearing. The relevant evidence was narrow, non-controversial and of obvious relevance. Further, it would very probably have altered the Federal Magistrate’s finding that there was an independent and unimpeachable basis for his decision, which depended on the appellant’s supposed assertion that he came to Australia for business reasons and “has no life threatening problems/persecution”.

118    The first respondent opposed admission of the transcript. He submitted that there was no denial of procedural fairness, as despite the stage at which the Federal Magistrate raised the refusal of relief on discretionary grounds, the appellant’s counsel responded with extensive submissions on the point. Nor did counsel seek to tender further evidence, request an adjournment for that purpose, or seek leave to file and serve post-hearing submissions.

119    Further, the first respondent submitted that the transcript would not have affected the result, either in relation to the exercise of the discretion (as it was simply further evidence to consider) or the finding of the independent basis for the IMR’s decision.

120    The first respondent submitted that the present appeal was to correct error, rather than introduce new material, and the discretion under s 27 of the Federal Court Act, although wide, was informed by the common law rules.

Discussion of ground 2

121    Although the first respondent opposed the admission of the transcript, no prejudice was asserted. To the contrary, the first respondent submitted that the transcript probably supported his contention that the IMR and the Federal Magistrate found, correctly, that the appellant did not assert a subjective fear.

122    The first respondent relied on the Full Court’s discussion of s 27 in Reece v Webber (2011) 192 FCR 254 (“Reece”). In Reece, the Full Court referred to NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 (“NASB”), in which the Full Court stated at [42]:

In order for this Court to receive further evidence, generally speaking (cf: Cottrell v Wilcox [2002] FCAFC 53; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635–636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367–368 ((as agreed by the parties) ‘almost certain that, … , an opposite result would have been reached by the primary judge’).

123    The Full Court in Reece also referred to the review of authorities on s 27 by the Full Court in Sobey v Nicol (2007) 245 ALR 389 (“Sobey”) at [69] to [73]. The Full Court noted that in Sobey, one factor relied upon in refusing relief was the fact that the additional evidence was not fresh, in the sense that it concerned events that had happened, or documents brought into existence, since the date of the hearing before the primary judge (at [14]).

124    In Reece, the Full Court concluded at [15]:

The result, it is considered, is that the discretion conferred by s 27 to adduce further evidence is thus unconfined by any express limitations. But the discretion is to be exercised in a statutory context where the appeal being entertained is an appeal by way of rehearing for the purpose of determining the rights of the parties in accordance with law. Although not constrained by common law principles, the considerations to which the common law had regard remain considerations relevant to the exercise of the discretion conferred by s 27. The exercise of the discretion conferred by s 27 may be informed by reference to these principles but is not to be constrained by them.

125    In the present case, no prejudice was entailed by admission of the transcript, which was of such weight as to have an important influence on the result. Counsel for the appellant was confronted with the possibility of the adverse exercise of the discretion on the initiative of the Federal Magistrate only in the reply, at which point the relevance of the transcript (which had not been prepared) would not have been apparent. In the circumstances, while it is apparent with hindsight that an adjournment could have been sought, the failure to do so did not, in my opinion, bespeak a want of reasonable diligence.

126    Accordingly, it was appropriate to receive the transcript pursuant to s 27 of the Federal Court Act. I was not, however, persuaded that the appellant was denied procedural fairness and in my opinion, ground 2 was not made out.

Ground 3

127    Under ground 3, the appellant alleged:

3.    The Federal Magistrate erred in law in exercising his discretion to refuse to grant relief to the Appellant, without giving any consideration to the merits of his grounds of review, on the basis that there was an “independent and unimpeachable basis for the decision”, in circumstances where the basis for the decision identified by the Federal Magistrate was not independent of the errors alleged by the Appellant.

Particulars

The Federal Magistrate found, at [18], that the independent and unimpeachable basis for the decision was that the Appellant does not have a well founded fear of persecution for a Convention reason. The grounds of review advanced by the Appellant challenged that very conclusion.

128    The appellant alleged that the Federal Magistrate erred in so far as he determined to withhold relief on the basis of the “independent and unimpeachable basis for the [IMR’s] decision” that the appellant did not have a well-founded fear of persecution for a Convention reason, but came to Australia for business reasons without any fear of persecution in Afghanistan.

129    The appellant submitted that while the IMR correctly acknowledged that business reasons for coming to Australia could co-exist with a well-founded fear of persecution for a Convention reason, the IMR was obliged, but failed, to consider the appellant’s claim to fear persecution on all claimed bases, including his membership of a social group (wealthy Hazaras vulnerable to kidnapping) and State protection.

130    The appellant further or alternatively submitted that the Federal Magistrate erred in finding as a fact, or in finding that the IMR found, that the appellant came to Australia with no fear of persecution.

131    In the appellant’s submission, the IMR, on a fair reading of his reasons, considered that the appellant had a subjective fear of persecution, but found that he did not have a well-founded fear of persecution, without considering all the claimed bases for the fear.

132    The appellant alternatively submitted that if, as the first respondent contended, the IMR found that the appellant had no subjective fear, the IMR could not properly make that finding on a global basis, but should have related it to each claimed basis for the fear of persecution, which the IMR failed to do.

133    The first respondent submitted that the IMR found that the appellant had no subjective fear of persecution and that the Federal Magistrate, in stating (at [13]) of the reasons that “[a]s the applicant came to Australia in 2010 without any fear of persecution, there is a proper basis for the Tribunal finding that the applicant will not incur persecution on return to Afghanistan”, was referring to an absence of any subjective fear, and any failure to consider the bases of a claimed fear would not constitute jurisdictional error.

134    The IMR, however, stated at [66] of his reasons that he accepted that the claimant may have a subjective fear of persecution and proceeded to consider whether there was a real chance that the appellant was likely to suffer persecution on the basis of ethnicity or religious belief or at road blocks. At [73], the IMR stated that if the appellant had a well-founded fear, he would not have returned to Afghanistan on two or three occasions when there was no pressing reason to do so.

135    The IMR discussed the appellant’s claim based on membership of a wealthy group in relation to Kabul, (at [69]) but did not address it in relation to the rest of Afghanistan. The IMR expressly stated that it was unnecessary to consider whether the appellant belonged to a particular social group or his claim based on state protection. The IMR concluded that, when considered objectively, the appellant did not have a well-founded fear of persecution.

136    The Federal Magistrate concluded that the appellant came to Australia in 2010 without any fear of persecution and at [18] stated that the independent and unimpeachable basis for the IMR’s decision was that the applicant did not have a well-founded fear of persecution for a Convention reason and came to Australia with no life threatening problems/persecution in Afghanistan (see also [22]). The Federal Magistrate did not refer to the absence of a subjective fear.

137    The IMR did not unambiguously conclude that the appellant had a subjective fear. Nevertheless, his express acceptance that the appellant may have such a fear, his detailed consideration of various bases for a claimed fear of persecution (which would otherwise have been unnecessary) and his conclusion that any fear was not “objectively” well-founded appeared to recognise a subjective fear. In my opinion, the IMR’s statements and treatment of issues indicate findings that the appellant had a subjective fear, but did not have a well-founded fear of persecution.

138    In my opinion, the IMR did not make a factual finding that rendered it unnecessary to consider all claimed bases of the fear. The IMR therefore erred in failing to consider the state protection claim (and in so far as he considered the claim based on membership of a social group) limiting it to Kabul. In such circumstances, the Federal Magistrate erred in exercising his discretion to refuse relief on the basis of an “independent and unimpeachable basis” for the IMR’s decision.

139    Therefore, in my opinion, ground 3 is established.

Conclusion

140    In my opinion, the appeal should be allowed.

Associate:

Dated:    28 September 2012