FEDERAL COURT OF AUSTRALIA

SZQBN v Minister for Immigration and Border Protection [2014] FCA 686

THE COURT ORDERS THAT:

1.    The time for the filing of the Notice of Appeal is extended to 2 April 2014.

2.    Leave to raise additional grounds not relied upon before the Federal Circuit Court of Australia is refused.

3.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

1    The Applicant is a citizen of The People’s Republic of China.

2    He applied on 31 January 2011 to the Department of Immigration for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (“Migration Act”). A delegate of the Minister refused that application on 11 April 2011. An application to the Refugee Review Tribunal was dismissed. The matter, however, returned to the Tribunal following an order of the then Federal Magistrates Court. On 8 April 2013 the Tribunal again affirmed the decision not to grant the visa.

3    An Application seeking review of the April 2013 decision of the Tribunal was filed in the Federal Magistrates Court on 9 May 2013. An Amended Application was filed on 25 February 2014. The Grounds set forth in the Amended Application contended that the Tribunal:

    had breached s 425 of the Migration Act;

    had failed to take into account a relevant consideration; and

    had breached s 424A of the Migration Act.

On 12 March 2014 the Federal Magistrate Court, by then re-named the Federal Circuit Court of Australia, published its reasons dismissing the Amended Application: SZQBN v Minister for Immigration [2014] FCCA 434.

4    On 2 April 2014 the Applicant filed in this Court an Application for an Extension of Time within which to appeal. Also filed on that date was an affidavit explaining the circumstances in which the appeal was not filed within time and annexing a draft Notice of Appeal. The proposed Grounds of Appeal were there expressed (without alteration) as follows:

First Ground:

1.    That His Honour erred in failing to find that the letter was at document that would come within the terms of section 424A(1) of the Migration Act.

2.    Or in the alternative, that His Honour erred by failing to have regard, at paragraph [22] of the decision, to the Appellant’s submission that SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] was distinguishable from the instant matter given the enactment of section 36(2)(aa) of the Migration Act.

Second Ground:

3.    That His Honour erred in failing to find that there had not been a breach of section 425 of the Migration Act in circumstances where the Appellant’s psychological diagnosis had not been taken into account due to credit findings made against him.

The reference to paragraph [22] of the reasons for decision the subject of appeal was a mistake; the reference should have been to paragraph [21]. But nothing turns on that error. In addition to the Grounds set forth in the draft Notice of Appeal, leave was sought to raise two grounds of challenge which were not previously relied upon before the Federal Circuit Court Judge.

5    The matter came before the Court on 16 May 2014 when the parties were advised that the Application for an Extension of Time and the appeal itself would be heard (if the extension of time were granted) on 17 June 2014. On both occasions the Applicant was represented by Counsel.

6    The extension of time which is sought is for a period of two days. The Respondent Minister does not claim any prejudice if an extension of time is granted and, quite properly, does not oppose the extension being granted. That extension of time should be granted. The Applicant having been successful in securing an extension of time can conveniently be referred to as the Appellant.

7    During the course of the hearing, an Amended Notice of Appeal was filed setting forth the Grounds previously set forth in draft form and the two proposed further arguments. Leave was granted to file the Amended Notice of Appeal but the fate of the application for leave to raise the two further arguments was reserved.

8    It is concluded that there has been no contravention of either:

    section 424A; or

    section 425

of the Migration Act. It is further concluded that:

    leave to raise the two additional grounds of challenge not previously relied upon should be refused; and

    the appeal should be dismissed.

Sections 424A and 425

9    Section 424A provides as follows:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

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    The present proceeding does not require anything other than a brief reference to the authorities dealing with ss 424A and 425.

12    First, compliance with the terms of s 424A is mandatory and a failure to comply with its terms constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [75] to [77], (2005) 228 CLR 294 at 320 to 322 per McHugh J; at [173], at 345 to 346 per Kirby J; and at [208], at 354 to 355 per Hayne J. Gleeson CJ and Gummow J dissented. See also: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [13], (2007) 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

13    Secondly, s 424A is not engaged unless the “information” in question is information that the “Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review…”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 235 ALR 609. The “information” which it was there contended engaged s 424A was a statutory declaration provided by the claimant. The Tribunal had drawn the male claimant’s attention during the hearing to discrepancies between his oral evidence and his written claims in the statutory declaration. It was concluded that this was not “information” which fell within s 424A(1). After referring to the introduction of s 424A by way of amendment in 1998 and the decision in SAAP, supra, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed:

[15]    This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. Rather, the tribunal’s obligation is limited to the written provision of “particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. What, then, was the “information” that the appellants say the tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite “information” as being the “inconsistencies” between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.

Their Honours went on to conclude:

[21]    The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants’ statutory declaration were not “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. That being so, this case does not require this court to address the differences in opinion in the Federal Court concerning the “unbundling” of tribunal reasoning.

Their Honours also went on to conclude that relief would have been refused, even had there been a breach of s 424A, in the exercise of the Court’s discretion: [2007] HCA 26 at [27] to [29]. Indeed, Kirby J who agreed with the reasons of their Honours, went on to expressly conclude that he would have supported the order dismissing the appeal solely on the ground of discretion: at [32].

14    With respect to s 425, it may readily be accepted that the opportunity “to give evidence and present arguments” is a right of central importance to claimants: Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362, (2001) 113 FCR 541. Black CJ, Hill and Weinberg JJ there observed:

[44]    The right to a hearing is clearly an important and central right in the merits review system established by Pt 7 of the Act. This has been acknowledged in other contexts… The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances. The right to be invited exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right. The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the Parliament's intention that, at least generally, there should be a right to be invited to appear before the Tribunal.

[45]    Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the Minister's submission that the applicant's right to appear before the Tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act. As we have noted, the Amendment Act provided a new right to present argument before the Tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the Explanatory Memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right

The invitation “must not be a hollow shell or an empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31], (2000) 64 ALD 395 at 402 per Goldberg J. See also SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 at [12].

15    It may also be readily accepted that s 425 imposes an “objective requirement” upon the Tribunal and that the opportunity to be heard must be a “meaningful” opportunity: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, (2003) 128 FCR 553. Unbeknown to the Refugee Review Tribunal in that case, the claimant when he appeared was medicated and suffering extreme distress after being informed of his father’s death. The primary Judge concluded that the decision of the Tribunal should be set aside. In dismissing an appeal, Gray, Cooper and Selway JJ observed:

[36]    It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be…

[37]    On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

[38]    It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a “jurisdictional error”.

A breach of s 424A?

16    Any argument founded upon a contravention of s 424A needs to identify “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.

17    Although there was uncertainty – at least on the hearing of the present appeal – as to where the “information” which was said to fall within s 424A(1) was to be found, the fundamental concern of the Appellant was that there had been a disclosure to a third person of “information”, including the disclosure of:

    his name and address;

    the fact that he had applied for a protection visa; and

    the file number and status of his review application.

In a factual context where he claimed to fear persecution if he were to be returned to China, any disclosure of such “information” – even an erroneous and limited disclosure to a third person – only reinforced the fears being advanced. If it were necessary to demonstrate “prejudice”, the Appellant further contends that:

    “prejudice” is exposed by the disclosure of his name and address.

18    Although it is accepted that there has been a limited disclosure of “information”, it is concluded that reliance upon a contravention of s 424A is misplaced.

The information relied upon and the source of that information

19    Although inelegantly expressed, the Appellant’s Amended Notice of Appeal asserted that the Federal Circuit Court Judge erred “in failing to find” that a letter dated 17 August 2012 was a “document that would come within the terms of section 424A(1) of the Migration Act”. So expressed, the Ground of Appeal failed to itself identify with any precision the “information” that it was said to fall within s 424A(1). Further uncertainty was occasioned by the oral submissions advanced on behalf of the Appellant contending that the “information” was contained both with the 17 August 2012 letter and a Departmental “case note”.

20    Even further uncertainty arose during the course of the hearing when it emerged that there were two letters dated 17 August 2012 and no agreement between the parties as to which of these two letters – or perhaps a third letter – was being referred to in the Tribunal’s reasons for decision. One letter dated 17 August 2012 was a letter sent by facsimile to Parish Patience Immigration Lawyers. The facsimile referred to 16 pages being forwarded. That letter informed the recipient that the Appellant’s application for review had been remitted by the Federal Magistrates Court to the Tribunal for reconsideration. In addition to disclosing that information, that letter (inter alia):

    identified the Appellant by name and address; and

    disclosed the file number given to the application.

That letter also:

    concluded with a reference to the name of the Appellant and his address and the name and address of a further person with the same (or a substantially similar) name and that person’s address. What was sent to those persons was only informed by the facsimile letter preceding the two names and addresses with the abbreviation “cc: …”.

The second letter dated 17 August was addressed to the Appellant at his residential address. That letter had been sent by registered post. That second letter also, and not surprisingly, identified the Appellant by name and address and again stated the fact that the Federal Magistrates Court had remitted the application to the Tribunal for reconsideration. It also contained a reference to the file number.

21    The prospect of a third letter was canvassed by the solicitor appearing for the Respondent Minister. It was his submission that a letter in substantially identical terms to that sent by registered post to the Appellant had also been sent to the other named person. The only differences, he submitted, would be in the name and address to which each of the two letters was posted. The explanation for both names being referred to in the facsimile transmission was said to be explicable by reference to the fact that Parish Patience Immigration Lawyers were acting for both named persons. But there was no evidence as to whether that was so or not.

22    The erroneous disclosure of information was known to the Appellant, at least shortly after the conclusion of the hearing before the Tribunal. So much emerges from the fact that in a post-hearing submission dated 4 December 2012 he wrote:

RELEASE OF PERSONAL INFORMATION

27.    During the legal process for my applications, my personal information has been released, in breach of my privacy and compromising my safety. The first breach was by the Refugee Review Tribunal, when they sent all my documentation to another Chinese person with a similar name to mine. When this man was contacted to return the documents, he refused. We do not know who this man is or who he works for, this is a serious breach and makes me feel very afraid. This man could be working for the Chinese government, or know someone who does. But even if he does not, it is still a serious breach and makes me more fearful for my personal safety.

The basis upon which this submission – or the source of the information upon which it was founded – was not specified.

23    Whatever be the uncertainty as to the letter, there was no uncertainty as to the “case note” to which the Appellant referred to in his submissions. The “case note” provided as follows:

Case Note 8057121

Case Number: XXXXXXX

State Processed: NSW

Primary Review Applicant:

Mr X XXXXX

Gender: Male

DOB: XX/XX/XX

Case Note info:

Date and Time: 29/08/2012 09:34:00 AM

User: Robert Jessop

Note Type: Case Note

Comments:

Letter sent to Ashfield address was incorrectly addressed as the address (obtained from DIAC records) was confused with another tribunal applicant with a similar name and dob (XXXXXXX). Both Members appraised of the situation and correct ICSE and movements records placed on file.

The existence of this “case note”, it was accepted, only became known to the Appellant during the course of the proceeding before the Federal Circuit Court.

24    The fears of the present Appellant may readily be understandable. But the question remains as to whether there has been a failure to provide him with “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review…”. No argument was sought to be advanced that the erroneous disclosure of “information” (or the non-disclosure to the Appellant of further facts explaining precisely what had been disclosed) constituted any other form of jurisdictional error. The sole category of jurisdictional error into which these facts were said to fall was a contravention of s 424A.

The approach of the Tribunal and the Federal Circuit Court

25    When addressing the conclusions to be drawn from the “case note”, the reasons for decision of the Tribunal record the following:

215    The Tribunal has taken into account the claim that the applicant’s information has been provided to another applicant in the Tribunal by mistake and that “This man could be working for the Chinese government, or know someone who does”, and in any event, “it is still a serious breach and makes me more fearful for my personal safety”.

216    The Tribunal has looked through the Tribunal files and has found a case note that indicates a letter dated 17 August 2012 advising that the Federal Magistrates Court has remitted the application for review to the Tribunal for reconsideration was sent incorrectly to a person of a similar but different name at an Ashfield address. The case note explained why that the error occurred. The only identifying feature in the letter that related the matter to the applicant was the file number. Absent information in this decision that is published which identifies the applicant, the Tribunal will note that this decision is not to be published. It is therefore not satisfied that there is any foundation for the applicant’s claim in relation to this error having been made.

217    The Tribunal is not satisfied that the fact that the applicant has applied for a protection visa in Australia is known to or will become known to any person or body such that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to China, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

Notwithstanding the submission advanced on behalf of the Respondent Minister, it is considered that the 17 August 2012 letter to which the Tribunal refers is the facsimile letter forwarded on that date. It is only the letter sent by facsimile that disclosed the “Ashfield address” as referred to by the Tribunal. And that facsimile included the letter sent by registered post and its annexures. Contrary to the observations made by the Tribunal, however, those letters do in fact disclose the name and address of the Appellant. That conclusion is founded upon a reading of the text of the facsimile letter and the form of the letter sent by registered post. No other form of letter was included in the materials made available to the Court. It remained open to the Respondent Minister to remove any uncertainty. It was only his Department that could clarify whether another form of letter had been sent to the other named person. But no attempt was made to do so.

26    The Federal Circuit Court Judge rejected the present argument as it was advanced before that Court stating:

[21]    For the case note to call within s 424A(1) it must “in its terms constitute a rejection, denial or undermining of the applicant’s claims to be owed protection obligations”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17], and Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 at [22]. The case note is supportive of the applicant’s claim that he would suffer harm if he returned to China because of his identification as an asylum seeker. It corroborates his argument that his identity would become known to the Chinese authorities. It is thus not a document that would come within the terms of s 424A(1). The applicant argues that things have changed since SZBYR by the inclusion of complementary protection under s 36A(2)(aa) of the Act, but the court is unable to see the matter in this way. Complementary protection is just another form of protection to which the Migration Act and the authorities explaining it apply. The applicant’s claim is that for persons of his status within China, an application for a protection visa is an act of treason. The discovery of his identity could constitute grounds for a sur place claim within the Convention ground of imputed political opinion. But even if that was not the case and the only claim the applicant had was one under s 36A(2)(aa), there is no authority that says that s 424A, as interpreted in SZBYR does not apply. This ground must also fail.

27    The entirety of the passage referred to by the Federal Circuit Court Judge to the joint judgment of Gleeson CJ, Gummow, Callinan, Heydon and Crennan in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 235 ALR 609 is as follows:

[17]    Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

No contravention of s 424A

28    Notwithstanding the unnecessary aggravation and fears engendered in the Appellant by reason of the mistake that occurred, it is concluded that there has been no contravention of s 424A because:

    the Tribunal did not regard the “information” as forming “the reason, or a part of the reason” for its decision

but – and more importantly:

    the “information” identified relied upon by the Appellant was not “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within the meaning of and for the purposes of s 424A(1).

29    As to the former reason, it is to be recognised that the “information” to which s 424A(1) refers is “information” which “would be” the reason or part of the reason for affirming the decision. The “use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17], (2007) 235 ALR 609 at 615. The “information”, is accordingly, not necessarily confined to that “information” which ultimately in fact forms the reason or part of the reasons of the Tribunal. The fact that “information” may ultimately not form the reason or part of the reason for the decision ultimately reached is thus not the touchstone by reference to which s 424A(1) operates.

30    The Tribunal nevertheless in the present case did not found its decision – in whole or in part – upon the “information” now identified by the Appellant.

31    The reasons expressed by the Tribunal for affirming the decision not to grant the present Appellant a Protection (Class XA) visa culminate in the following statements:

212.    Because the Tribunal does not accept that the applicant is a credible witness and does not accept that the documents he has provided are credible, the Tribunal is not satisfied that his claims for protection in relation to anything he has claimed has occurred in China are credible. That finding includes his claims about his employment history, being a scapegoat in relation to the TAO matter, and his marital circumstances, including the claimed disappearance of his daughter, police involvement in the matter, including an assault on his mother. The Tribunal understands he has resiled from his claim arising from his marital circumstances in any event. The applicant said that he could not tell the real reason he could not go back to China when he was interviewed at the airport because he would have disclosed government secrets and undermined the stability of mainland China. The Tribunal does not accept his claim that he belongs to a particular social group subject to the Chinese judicial system which is not independent and is subject to arbitrary decisions and he may face the death penalty on return to China.

213.    The Tribunal has taken into account the evidence in relation to the claims that arise as a consequence of his making the protection visa application.

These reasons precede the observations made by the Tribunal as to the “case note”.

32    The decision under review by the Tribunal was founded upon the conclusion that the Tribunal did “not accept that the applicant is a credible witness and does not accept that the documents he has provided are credible…”. And that conclusion was founded upon the findings previously made by the Tribunal. The mere fact that findings or conclusions may be expressed by the Tribunal thereafter would not necessarily strip those findings or conclusion from also forming “part of the reason” for “affirming the decision that is under review…”. But, in the present case, it is concluded that the observations made by the Tribunal – and, in particular, at paragraph [216] of its reasons for decision – in respect to the “information” contained within the “case note” cannot properly be characterised as “information” which was “part of the reason” for affirming the decision under review. If anything, the “information” if accepted could only be characterised as “information” that supported the Appellant’s claims to fear persecution.

33    It is not considered that the information contained within either the 17 August 2012 letter or “case note” formed any part of the reasons of the Tribunal for affirming the decision under review. It was not part of the information upon which the decision to affirm was based.

34    As to the second reason, and more importantly, it is not considered that the “information” now identified by the Appellant was “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The “information” as identified by the Appellant – e.g., his name and address – was not really the grievance relied upon by the Appellant. Such “information” could form no part of any reasoning process to either affirm or reject a claim being made. It simply identified the claimant. The grievance relied upon was the fact that such “information” had been disclosed. Assuming that s 424A(1) can embrace within the notion of “information” not the content of the “information” but the fact that it was disclosed, the fact of disclosure and the resultant prejudice to the Appellant would not be the reason of part of the reason for affirming the decision under review but rather for setting that decision aside.

35    There has, accordingly, been no contravention of s 424A.

A breach of s 425 – a meaningful opportunity to be heard?

36    The second of the arguments advanced on behalf of the Appellant was that there had been a contravention of s 425 of the Migration Act.

37    It is contended that the Appellant had been denied a “meaningful opportunity” to present his case before the Tribunal. The contention is founded upon an argument that the Tribunal failed to properly have regard to the available medical evidence in respect to the Appellant. That evidence, so it is contended, provides a possible explanation for the “inconsistencies” in the Appellant’s evidence. In making its adverse findings as to the Appellant’s credibility, it is contended on his behalf that “there was material before the Tribunal raising serious doubts whether the Applicant had the requisite mental capacity assumed by the Tribunal”. More generally expressed, it was contended that the “mental capacity” of the Appellant was such that he could not meaningfully participate in the hearing before the Tribunal.

38    The passage in the reasons for decision of the Tribunal which it is said on behalf of the Appellant exposes this error is the following:

219.    In making the above findings, the Tribunal has taken into account the several reports about the applicant’s mental health by health professionals. The Tribunal gives little weight to them because they rely on what the applicant or his representative on his instructions, have told them in order to give an opinion. Having found the applicant’s evidence not credible, the Tribunal does not accept that his reported symptomatology and factual background is credible.

This passage, so it is contended, fails to properly deal with the “several reports about the applicant’s mental health” because those reports go beyond merely recounting what the Appellant had told the “health professionals”.

39    The Federal Circuit Court Judge rejected the same or a comparable argument as was previously advanced as follows:

[15]    The applicant here did not go so far as to say that he was unable to take part in the Tribunal hearing in a meaningful way. The court has some difficulty in comprehending exactly what was being said that constituted a jurisdictional error on the part of the Tribunal if it was not that. In any event, the court is satisfied, from the authorities quoted above, the constituents of the applicant’s argument are untenable.

The argument as now advanced seems to recast the argument that was previously advanced for resolution. Whether that is so or not perhaps matters little.

40    The argument as now advanced seeks to impugn the conclusion of the Federal Circuit Court Judge by focussing attention – not upon conclusions founded simply upon what the medical practitioners had been told by the Appellant – but rather upon:

    the opinions expressed by the medical practitioners, being opinions founded both upon what they had been told by the Appellant and their own observations and experience; and

    more objective evidence.

As recast, the present argument is advanced by reference to an asserted failure on the part of the Tribunal to take into account these more objective factors. If such a failure is to be accepted, it is then said on behalf of the Appellant that he was denied the opportunity to be heard as envisaged by s 425 because his “mental capacity” was such that he could either not “meaningfully” participate in the hearing or because his “mental capacity” was not properly taken into account.

41    The “reports” referred to by the Tribunal were:

    a letter from Dr Mark Stephen de Teliga, BA (Psych) MA (Counselling) PhD (Psych) of 11 October 2012;

    a facsimile transmission from Parish Patience Immigration Lawyers of 16 January 2012 outlining the Applicant’s admission to a psychiatric ward at Bankstown Hospital;

    a case note regarding the Applicant’s admission to Bankstown Hospital;

    a facsimile transmission from Parish Patience Immigration Lawyers of 23 September 2011 and 21 December 2011; and

    a psychological assessment report of Dr John Jacmon dated 27 February 2011;

In addition to disclosing an assessment as to those matters founded upon what the Appellant had communicated to each of these medical practitioners:

    the report of Dr de Teliga expressed an assessment that the Appellant was “telling the truth about his fears” and that his fears were “genuine, not imagined” and that the Appellant was “suffering from a form of exogenous depression, but because of his fears will not accept medication”; and

    the report of Dr Jacmon recorded the Appellant’s diagnosis of diabetes and his loss of weight and low blood sugar levels.

42    The argument as now advanced on behalf of the Appellant is rejected.

43    Given the statement of the Tribunal at paragraph [219] of its reasons for decision, it could not be concluded that the Tribunal did not have regard to each of the medical reports to which it had previously referred. And, even if it be concluded that the Tribunal had not adequately addressed in its reasons for decision any difference between opinions founded upon “what the applicant or his representative on his instructions, have told them in order to give an opinion”, as opposed the more objective evidence that may be discerned from one or other of those medical opinions, any such difference is without substance.

44    Any prospects of success that the present argument may have is to be found in the more generally expressed submission that the Appellant’s “mental condition” was such that he could not meaningfully participate in the Tribunal hearing. But even that argument is without substance.

45    It may be accepted that the “mental condition” of a claimant may deprive him of a meaningful opportunity to be heard and, accordingly, a contravention of s 425. Careful consideration needs to be given, however, to the degree of incapacity needed to be demonstrated before such a conclusion is reached. Thus, for example, in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, (2012) 183 FCR 575, an appeal was allowed from a decision that the claimant had been “denied a proper opportunity to give evidence and present arguments due to his mental state”. The Federal Magistrate had concluded:

[64]    I accept the submission of the Minister in the present case that the evidence now before me does not indicate that the applicant was entirely unfit to attend the Tribunal’s hearing and answer its questions, whether on 12 June 2009 or at a later date. However, I am satisfied with the benefit of the additional evidence now before the Court, that the Tribunal was deprived of the opportunity to assess the evidence given by the applicant in the light of his diagnosed mental impairments, and that the applicant was denied a “real and meaningful” opportunity to participate in the hearing and to have his evidence fairly assessed by the Tribunal in the light of his impairments: SZNVW v Minister for Immigration and Citizenship, [2009] FMCA 1299.

In allowing the appeal, the former Chief Justice of this Court, Keane CJ, concluded:

[36]    There was, in my respectful opinion, no foundation for the magistrate’s ultimate conclusion that “the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity.” The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.

[37]    The present case falls well outside the authority of this court’s decision in SCAR. The further evidence subsequently adduced before the magistrate was not apt to, and was not found to, demonstrate an unfitness to “give evidence and present arguments” at the hearing. Nor was this a case where the integrity of the hearing under s 425 was subverted by a want of an appreciation on the part of the Tribunal that the respondent’s presentation of his case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious.

[38]    In my respectful opinion, the magistrate’s decision cannot be sustained; the learned magistrate erred in concluding that the Tribunal failed to comply with s 425 of the Act.

Emmett J agreed: [2010] FCAFC 41 at [49].

46    An assessment as to whether a particular claimant has the mental capacity to meaningfully participate in a Tribunal hearing is necessarily an assessment which must be made by reference to the facts and circumstances of each individual case. In Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [40] Tracey J concluded that the “evidence does not establish that the visa applicant’s condition was sufficiently serious to meet the standard required by SZNVW”. In the course of reaching that conclusion, his Honour had previously observed:

[30]    The argument focussed on what an applicant must prove in order successfully to establish a contravention of s 425 of the Act. Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.

The reference to “entirely unfit” is, presumably, a reference back to the language of the Federal Magistrate’s reason for decision in SZNVW v Minister for Immigration and Citizenship [2009] FMCA 1299 at [64]. Considerable reservation is expressed, however, as to whether it is necessary for a claimant to establish that he is “unfit (in the sense of being unable) to give evidence, present arguments and answers questions…”. His Honour’s observations, it is respectfully considered, are not to be taken as setting forth the only circumstances in which the opportunity guaranteed by s 425 may be denied. A claimant falling short of being “unable” to give evidence and present argument may, in an appropriate case, nevertheless also be denied a meaningful opportunity to be heard. See also: SZKPB v Minister for Immigration and Citizenship [2009] FCA 147; SZOVP v Minister for Immigration and Citizenship [2012] FCA 244 at [34] to [36], (2012) 126 ALD 290 at 298 to 299 per Collier J.

47    Considerable care needs to be exercised before a conclusion is reached that a claimant has not been afforded a “real and meaningful” opportunity to be heard. But an opportunity to be heard is no opportunity at all if a person is unable to meaningfully participate, be that inability due to mental capacity or other reason. Reasons for questioning the utility of a hearing may range from language and cultural difficulties of a claimant to a claimant’s mental condition. It would not be surprising if it were the case that many claimants experience a great deal of stress when appearing before the Tribunal. The source of that stress may itself range from the stress in advancing a claim founded upon assertions known to be untrue to the stress experienced by a genuine claimant being fearful that his claims may not be genuinely considered or evaluated. The plight of claimants cannot be underestimated: cf. Abebe v Commonwealth (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. Their personal circumstances may well expose them to a source of stress different to – and perhaps greater than – the stress which many litigants experience in any litigation.

48    On the facts of the present case, however, there is no foundation for any conclusion that the mental state of the Appellant was such that he could not meaningfully participate in the Tribunal hearing. The highest the evidence rose in support of such a conclusion was the report of Dr de Teliga that the Appellant was “often not capable of making rational decisions regarding his own situation”. The report of Dr Jacmon concluded that the Appellant’s condition could be “diagnosed as mixed anxiety depressive disorder”.

49    At least initially, it was for the Tribunal to form its own assessment as to the ability of the Appellant to participate in the hearing. As paragraph [219] of its reasons make clear, the Tribunal had read the medical reports and taken them into account. In doing so, it reached the conclusion that it could give them “little weight” and it was a matter for the Tribunal to give them such weight as it saw fit in reaching its conclusions as to the credibility of the Appellant. Of present relevance is whether the medical reports support the different proposition that the Appellant’s “mental capacity” was such as to deprive him of the opportunity “to give evidence and present arguments…”. Whether the test be an “inability” to give evidence rather than a claimant being denied a “meaningful opportunity to participate”, the evidence in the present appeal does not satisfy either test. Nor does an independent review of the transcript of the hearing before the Tribunal expose any reason to question the ability of the Appellant to meaningfully participate in the hearing he attended. That hearing occupied over three hours. There is no reason to question the ability of the Appellant to competently answer the questions being put to him by the Tribunal member.

50    The argument founded upon a contravention of s 452 is rejected.

The additional grounds of appeal – the amendment application

51    The two additional arguments now sought to be relied upon on behalf of the Appellant were arguments that:

    the Tribunal failed to deal with an “integer” of the claims being made by the Appellant, namely the claim to fear persecution if he were to be returned to China by reason of an asserted acknowledgment he has a Taiwanese passport; and

    a further contravention of s 424A was exposed by reliance placed by the Tribunal upon information provided orally to the Department, within the meaning of s 424A(3)(ba) of the Migration Act.

52    Counsel for the Appellant frankly acknowledges that these were both arguments that could have been raised before the Federal Circuit Court where he had been represented by Counsel, albeit not the Counsel presently appearing. The written submissions now filed on behalf of the Appellant also quite properly acknowledges that the “points only arise because of a different view taken by fresh counsel briefed on the appeal”. Notwithstanding these bases upon which a departure from the manner in which the case was advanced before the Federal Circuit Curt, it is nevertheless now submitted that leave should be granted to rely upon these additional arguments because “it would be in the interests of justice to permit the ventilation of such matters on appeal where no prejudice would preclude the Court doing so”.

53    Counsel for the Appellant expressly disavowed any proposition that a change in the legal representatives for a party was a sufficient reason in itself to justify leave being granted to raise on appeal arguments not previously relied upon. A change in legal representation may explain (at least in part) why arguments are being raised for the first two on appeal – but would rarely be in itself a basis upon which the discretion should be exercised.

54    Normally a party is bound by the way in which a case is conducted at first instance: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

Similarly, in Coulton v Holcombe (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed:

… It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish…

Notwithstanding this general proposition, the Court is nevertheless given a discretion to permit a new argument on appeal. One factor to be taken into account when exercising that discretion, and a factor which will normally preclude a new argument being raised for the first time on appeal is the prospect that the new argument could have been met by evidence if raised earlier: e.g., Water Board v Moustakas (1988) 180 CLR 491 at 496 to 497 per Mason CJ, Wilson, Brennan and Dawson JJ. But the factors to be taken into account are not so confined. After referring to Coulton v Holcombe, supra, Allsop J (as his Honour then was) in Branir v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424 set forth further considerations as follows:

[37]    It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken…

[38]    However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point. First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked… Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice. The extent of the consideration of "the interests of justice" was discussed by Branson J and Katz J in H v Minister for Immigration and Multicultural Affairs, supra, at [8]. For my part, I would reserve comment upon the matters there discussed in this context concerning the relevance of the growing pressure on the time of courts. Considerations of the kind there discussed by their Honours have not formed part of my reasons, expressed later, for refusing to entertain certain issues on appeal. Nothing I have said is intended to be in any way contrary to, or inconsistent with, what was said by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 or with the cases there discussed, that being an authority specifically relied on by the appellants in argument.

More recently, in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46], Kiefel, Weinberg and Stone JJ simply stated that “[l]eave to argue a new ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so”. See also: Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72 at [9] per Jagot, Nicholas and Yates JJ.

55    The expression “the interests of justice” is undoubtedly a useful touchstone; but its recitation is sometimes more the expression of a conclusion than a reason. It is necessarily an expression which must remain flexible in content to accommodate the infinite variety of cases and circumstances in which appeals are conducted. There may well be different considerations as to what may be relevant to an assessment as to “the interests of justice” in private litigation as opposed to public law matters. Thus, for instance, it has long been recognised that there is a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 192 ALR 71 at 86 per Gyles J. There is thus a legitimate public interest in the timely disposal of applications for protection visas: cf. SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J. There may also be a legitimate public interest and, accordingly in “the interests of justice”, to permit new arguments to be raised on appeal which expose excesses of statutory power by public officials. The “serious consequences that may attend a wrongful refusal of a protection visa” is also relevant to an assessment as to “the interests of justice”: cf. SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. Regrettably it is seldom the case that all of the relevant considerations point in one direction or the other as to the manner in which the discretion is to be exercised.

56    One factor which remains constant, however, in the exercise of the discretion is an assessment as to whether the new argument has any merit.

57    As to the former proposed new ground, namely that there had been a failure to consider an “integer” of the claim being advanced by reason of the asserted acknowledgment that the Appellant has a Taiwanese passport, the argument has no self-evident merit. The argument proceeded from a comparison of the following two paragraphs of the reasons for decision of the Tribunal, namely:

191.    Australia has acknowledged that he has a Taiwanese passport in the Australian Federal Court and the Federal Magistrates Court. The Chinese have said that he is a Taiwanese spy.

214.    The applicant claims that the Chinese authorities have been alerted that he has claimed protection because of references made to his having a Taiwanese passport, his passport number, information about his daughter and to his having applied for protection, in decisions of the Federal Magistrates and Federal Court. The Tribunal is not satisfied that those claims have been made out on the evidence before it. It does not accept the applicant’s evidence that the Chinese government knows about the protection visa application which is treason under Chinese law, have obtained a copy of the Tribunal’s refusal decision and copies of the court reports, that they have boasted about it to his father and pressured his father for the applicant to return, and that they have said that he is a Taiwanese spy, because it does not accept that he is a credible witness or that the documents he has provided are credible.

58    There was some divergence of views between the parties as to whether paragraph [191] was the mere recitation of a claim being made by the Appellant or a finding made by the Tribunal. On behalf of the Appellant it was submitted that it was a finding which was “not qualified in any way” and that paragraph [214] was “a rolled amalgam of findings and cannot be disaggregated to suggest departure from what is otherwise a clear finding at [191]”. If paragraph [191] was a finding, Counsel for the Appellant submitted that the “finding” as to the Appellant having a Taiwanese passport was an integer of the claim being made and not addressed or resolved by the Tribunal: Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088.

59    Such a reading of paragraphs [191] and [214], it is respectfully considered, is a reading of the reasons for decision with an eye attuned to the perception of error: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Properly read, it is concluded that the reasons for decision of the Tribunal address this aspect of the claim being made by the Appellant.

60    As to the second of the proposed new grounds, namely the reliance upon a further contravention of s 424A, the argument is again one which lacks sufficient merit to warrant it being now relied upon. The information said to have been communicated orally to the Department focussed upon the Appellant’s reasons for not applying for a protection visa when he entered Australia. The Tribunal, it was said, was aware of the information he had orally provided. So much emerged from the following paragraph of the Tribunal’s reasons:

42.    The applicant is known as David Wang in Australia. The applicant did not intend to apply for protection here before arriving in Australia and so did not bring any documents relating to his employment or occupation. He came to Australia to visit his mother for two weeks. He had already purchased a return ticket for 14 November 2010 and souvenirs for people in China. He stayed longer because on the evening of 12 November, he was told he was wanted in a private way. He wanted to verify that information which took time and to find out why he was wanted and how to fix that problem. If he wanted to seek protection then, he would not have left Australia on 24 January 2011.

The fact that the Tribunal relied upon this information emerged from the following paragraph of those reasons:

200.    The Tribunal has also taken into account his evidence that if he had wanted to seek protection, he would not have left Australia on 24 January 2011 to go to Fiji for three days before returning, because his multiple entry tourist visa only allowed him to stay for three months at any one time, and that he wanted to resolve the issues in China and then return there. This evidence reinforces the Tribunal’s finding that he did not fear harm of he returned to China when he applied for the protection visa because he wanted to “resolve” the issues in China and then return there.

61    The explanation provided to the Department, it would appear, was substantially similar to the information that he had provided to the Tribunal. Such information would fall within s 424A(3)(b). Any argument founded upon a further contravention of s 424A, it is considered, does not have sufficient merit to warrant it being now pursued further on appeal.

62    Having considered the factors relevant to the exercise of the discretion, including the fact that the proposed new arguments were available to be raised before the primary Judge and the apparent merit of the two new arguments, it is concluded that leave to raise the two grounds should be refused.

Conclusions

63    An order should be made extending time within which to file an appeal.

64    Leave to raise the additional grounds of appeal canvassing arguments not raised before the Federal Circuit Court should be refused. Neither of the two arguments has any sufficient merit to warrant leave being granted. There is, moreover, no sufficient reason why the arguments were not previously advanced. It would be contrary to the interests of justice, in such circumstances, to now permit those arguments to be relied upon.

65    The remaining Grounds of Appeal should be dismissed. The appeal should, accordingly, be dismissed.

66    Counsel appearing for the Appellant appeared pro bono. The Court expresses its appreciation to the care with which those Counsel identified and presented arguments in support of the Appellant’s case.

67    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The time for the filing of the Notice of Appeal is extended to 2 April 2014.

2.    Leave to raise additional grounds not relied upon before the Federal Circuit Court of Australia is refused.

3.    The appeal is dismissed.

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

Associate:

Dated:    27 June 2014