FEDERAL COURT OF AUSTRALIA

DZAER v Minister for Immigration and Border Protection [2015] FCA 568

THE COURT ORDERS THAT:

1.    The appeal be allowed and the Orders of the Federal Circuit Court of Australia made on 6 March 2015 be set aside.

2.    In lieu thereof it is ordered:

(a)    that a writ of certiorari be issued removing into this Court to be quashed the decision of the Refugee Review Tribunal of 25 July 2014;

(b)    the application of the appellants to the Refugee Review Tribunal be remitted to the Tribunal to be reconsidered according to law.

3.    The first respondent pay to the appellants their costs of the application to the Federal Circuit Court of Australia and to the Federal Court of Australia.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) to dismiss an application which sought to establish jurisdictional error on the part of the Refugee Review Tribunal (the Tribunal): DZAER v Minister for Immigration and Border Protection [2015] FCCA 673, and to quash a decision of the Tribunal made on 25 July 2014.

2    The appellants are citizens of Malaysia and are husband and wife (the male appellant and the female appellant respectively). They entered Australia on 3 February 2010 on 3-month visitor visas and remained in Australia after the expiry of their visas as unlawful non-citizens from 4 May 2010. Their presence in Australia for over four years with that status does not appear to have attracted specific attention of the Department of Immigration and Citizenship (the Department).

3    However, on 8 March 2014, the first appellant had a “Compliance Client Interview” for the purpose of establishing if he was of interest. As a consequence, both the appellants were detained under s 189(1) of the Migration Act 1958 (Cth) (the Act).

4    On 19 March 2014, the appellants made a joint application for a Protection (Class XA) visa. On 20 March 2014 the appellants were interviewed by a delegate of the Minister. The male appellant submitted as part of the application that he left Malaysia to escape from harm by criminal group and from persecution by the Malay police. He said that he had been kidnapped by the group, and had been forced by the police to fabricate evidence. He said he and the female appellant have no place to live safely in Malaysia, and feared for the safety of himself and his family if he returned there. The basis of that fear is referred to later in these reasons. The female appellant did not submit any separate written claims of her own. The delegate of the Minister considered that her claims mirrored the claims of the male appellant.

5    On 12 June 2014, the delegate of the Minister found that Australia did not owe the appellants protection obligations. In so finding, the Delegate found that the appellants provided inconsistent and contradictory information and was not satisfied as to their credibility.

6    On 19 June 2014, the appellants applied to the Tribunal for a review of the Delegate’s decision. It will be necessary to refer to the procedure before the Tribunal, and to the decision of the Tribunal in some detail. It affirmed the decision of the delegate for much the same reasons.

7    It was the application to the FCC refusing to set aside the Tribunal decision which gives rise to this appeal.

THE TRIBUNAL DECISION

8    The Tribunal referred to the claims made by the male appellant in the visa application and to the interview with the appellants conducted by the delegate of the Minister (as recorded in the delegate’s reasons for decision).

9    It noted that the female appellant is making claims in her own right to fear persecution if she returns to Malaysia, by claims which mirror those of the male appellant.

10    It then indicated that it had serious concerns about the credibility and veracity of their claims. Reasons were given for that, in the course of a lengthy and critical analysis of their evidence to the Tribunal and the earlier interviews.

11    It placed no weight on two documents produced by the appellants: a statement (of complaint) made to the Malaysian police, and a withdrawal of that complaint. That was because country information on Malaysia indicates that “document fraud is widespread”, together with its concerns about the credibility of the appellants.

12    For reasons which appear below, the Tribunal by way of summary at [33] of its reasons said:

Having considered all the evidence, individually and cumulatively, the Tribunal finds that the [appellants] are not witnesses of truth and have fabricated their claims for the purposes of obtaining Protection visas.

It proceeded to record that it did not accept each of the detailed relevant factual matters they had given evidence about. It said that, having considered all of their claims, “singularly and cumulatively” at [39], they did not face a real chance of persecution for any Convention reason if they returned to Malaysia.

13    Consequently, it affirmed the delegate’s decision not to grant them a Protection (Class XA) visa.

THE FCC JUDGMENT

14    The grounds on which the appellants claimed that the Tribunal had erred in a way which should lead to its decision being set aside all related to the way the Tribunal conducted its review.

15    Each of the four grounds concerned the alleged failure of the Tribunal to give them procedural fairness, required by Div 4 of Pt 7 of the Act, by:

(1)    not giving them a genuine opportunity to appear and give evidence and present arguments to the Tribunal;

(2)    not complying with ss 424A and 424AA of the Act; and

(3)&(4)    not endeavouring to obtain documentary evidence corroborative of the appellant’s claims.

16    Similar contentions were advanced as the grounds of appeal on this appeal.

17    The FCC at [6] recognised that the grounds of appeal concerned only the question of whether the appellants were accorded procedural fairness. It addressed each of the four grounds in turn.

18    As to ground (1), the FCC noted that the female appellant was required to be absent whilst the male appellant was interviewed by the Tribunal, and that the male appellant also left the hearing room whilst the female appellant was interviewed. It noted a complaint that the male appellant was referred to as the “primary applicant” by the Tribunal (as recorded in the transcript of the hearing) and so treated the female appellant simply as a family member whose claim was derivative from that of the male appellant.

19    The FCC accepted that both the appellants presented as visa applicants in their own right, largely based on the same facts, and said that as their claims started with the business dealings of the male appellant it was not unfair or inappropriate for the Tribunal first to focus its attention to him. It did not accept that the female appellant was thereby not given the opportunity to present her claims, or to address matters of concern to the Tribunal. In addition, it considered that the requirement that the female appellant be absent from the hearing room during the conduct of the male appellant’s evidence was “a proper procedure and it was not unfair”: at [20].

20    Consequently, that ground of review was not made out.

21    As to ground (2), the FCC said it had caused “some consternation”: at [23]. After referring to s 424AA, the Tribunal referred at some length to the transcript at p 29. It is necessary to refer to it later in these reasons. For present purposes, it is sufficient to note the conclusion that the appellants were told by the Tribunal of particular matters of concern to it, and the male appellant was given a proper opportunity to respond to it. The FCC, however, found that the female appellant was not given the opportunity to comment on or respond to the information which the Tribunal put to the male appellant for comment: at [35].

22    The FCC then concluded at [36]-[38]:

The Applicants say it does not matter what value it would have had. It is submitted that the Second Applicant was entitled to comment or respond to that information, even though she was not there. As I say, this is the matter that has concerned me the most. Does fairness dictate that she should have been allowed to answer it there and then when the First Applicant said, “Can I ask my wife to talk to you?”? In my view, there was no unfairness in her not being allowed to do so. Whatever was said could only be conjecture and could not have had any value for the Tribunal. She was not present at the time of the interview.

Notwithstanding the fact that the Tribunal said, “I will start with you first (the first applicant),” the fact is it was clearly a question or information that could only have been directed to the First Applicant and could only have been answered by the First Applicant.

So, not without some hesitation, I cannot find that there has been jurisdictional error.

23    As to grounds (3) and (4), the FCC noted the complaint that the two documents presented to the Tribunal were not translated, and the Minister through his delegate had translations of those documents, but the Secretary of the Department had not provided them to the Tribunal. As the FCC considered there were “incredible inconsistencies”: at [45], in the three versions of events, the male appellant had provided in the visa application and his interviews with the delegate and the Tribunal itself, his Honour said at [45] that the translated versions of the two documents:

... would just give a further version to what has happened and would not be corroborative.

Then, he said at [46] that the Tribunal had assumed that they were corroborative, or “as favourable to the [appellants] as they could be”, so the production of the translations would inevitably have been more unfavourable. In any event, the FCC said that it was only an error of fact, if error at all, to conclude that the two documents were fraudulent, so no jurisdictional error was made out in any event.

THE GROUNDS OF APPEAL

24    In general terms, the same matters were put by the appellants concerning the procedural justice requirements under the Act as were raised in this Court. The appellants appeared in person (the male appellant with the assistance of an interpreter). Not surprisingly, their submissions traversed factual grounds to an extent, but inherently their complaint about the lack of procedural fairness was their concern.

25    Their focus was on the position of the female appellant.

26    The Minister recognised that, and accepted that if it were found that the Tribunal had not accorded procedural fairness to the female appellant, such that the decision of the Tribunal should be set aside, because the two claims were factually intermingled and had been heard together, the consequence would be that the decision of the Tribunal in relation to both appellants should be set aside with consequential orders. That was a sensible acknowledgment.

27    The Minister also filed a Notice of Contention in the following terms concerning the FCC conclusion in [35] of its reasons:

The Court erred in finding that the second applicant was not afforded an opportunity to comment on or respond to the information reproduced in the judgment below at paragraph 26 and that there was, therefore, non-compliance by the second respondent with s 424AA of the Migration Act 1958 (Cth) (the Act). The Court should have found that the second respondent complied with s 424AA of the Act.

28    It is in the circumstances sufficient to focus attention on the appeal so far as it concerns the female appellant. Nothing was put to suggest that, if her appeal failed, there was any different or additional basis on which the male appellant might succeed on his appeal. That was the basis on which the appeal was argued.

29    The appellants claim that the Tribunal failed to comply with s 424AA(1)(b)(ii) of the Act by reason of the manner in which potential adverse inferences were put to the female appellant, because she was not given an opportunity to comment on information given by the first appellant during the Compliance Client Interview (that is, the interview following the visa application).

THE COURSE OF THE TRIBUNAL HEARING

30    The relevant parts of the hearing proceeded in the following manner.

31    Firstly, the Tribunal identified to the appellants that it had information which would be the reason, or part of the reason, for affirming the decision made by the delegate as it could lead to the Tribunal forming the view that neither of the appellants are refugees pursuant to s 424AA(1)(a). Secondly, the Tribunal specified that three of the comments which were made by the first appellant during the course of the Compliance Client Interview could lead to the Tribunal forming this view, and indicated that the appellants would each be given an opportunity to comment on this information.

32    The following exchanges took place at a point after the male appellant had been questioned separately (at the Tribunal’s request) and the female appellant had been questioned separately (the male appellant volunteered to absent himself) and they were both in the hearing room.

33    The first piece of adverse information was as follows:

TRIBUNAL: I have information that departmental officers conducted an interview with you, [the male appellant], on 8 March 2014. During the course of that interview, you [the male appellant] were asked if there was any reason why you could not return to Malaysia and you are recorded to have stated no. You are recorded to have stated that you would like to stay in Australia and work. You were asked if you were willing to depart Australia and you answered yes. You are recorded to have stated that you would like to remain in Australia. You did not make any mention of your fears of returning to Malaysia at that time. This raises doubts about the credibility of your claims for protections. Would you like to make any comment on or response to that information? I’ll start with [the male appellant] first.

34    The male appellant’s response did not accept that he had unequivocally made those statements, and pointed out that he had explained at that interview why he could not return to Malaysia (as he had). It is not necessary to explore why the Tribunal accepted the accuracy of the interviewer’s recording of those answers when the basis of other things he said during the interview were clearly to the contrary, and the male appellant suggested those recorded answers were incomplete. The Tribunal then questioned the female appellant as follows:

TRIBUNAL: [Second appellant], were you with your husband when he was interviewed on 8 March? Can you please interpret that?

FEMALE APPELLANT (through interpreter): No.

TRIBUNAL: So you wouldn’t know what he said to the officer then?

FEMALE APPELLANT: No.

There were no further questions in relation to this piece of information which were put to the female appellant and she was not invited to comment further.

35    The second piece of adverse information was:

TRIBUNAL: Now, I have information before me from the Department of Immigration that you, [the male appellant] during the interview on 8 March 2014 said that you planned to return to Malaysia for treatment for your lungs and that you wanted to do that before winter. If you were planning to do that, then that raises serious doubts about the credibility of your claim - fears of returning to Malaysia. Would you like to make any comment on or response to that?

36    The male appellant’s response explained that he reported his doctor’s advice, and claimed that he said he did not want to return and had medical insurance in Australia. He denied having said what was attributed to him. The Tribunal then addressed the female appellant:

TRIBUNAL: [Female appellant], again, you were not present during that interview, so you wouldn’t know what was said, so I’m not going to…

The Tribunal member was then interrupted by the second appellant:

FEMALE APPELLANT: Like, first time I talk to the immigration, the officer, I pretty sure he told me – because me and my husband we owe them money and we have, like, no another kind visa we can apply and we have no reason to stay here, so the first time I get caught by them, so I just say, okay. They ask me why I haven’t returned to Malaysia, I no intention to say anything because since you say no visa for me can apply, so I just say no. So I just no reason try to hide or lying. Because of what he told me, I have no reason I can apply, so I said, “There’s nothing I can do,” so I just say no.

It may be observed that each of the appellants in this period of the hearing reported having been told by the interviewer something to the effect that there was no visa for which they could apply to stay in Australia.

37    There were no follow up questions and the second appellant was not further invited to comment or respond further to the information.

38    The third piece of adverse information was:

TRIBUNAL: I have information before me from the department that during the interview on 8 March 2014 you, [the male appellant], said that your mother advised you and your wife to return to Malaysia. It seems to be highly unlikely—

MALE APPELLANT:

(Foreign language)

TRIBUNAL: Please let me finish [male appellant]. You also need to wait until the interpreter finishes before you start talking. Can you interpret that?

MALE APPELLANT: Yes, yes.

TRIBUNAL: It seems highly unlikely that if you are at risk in Malaysia, as you claim, that your mother would be advising you to return to Malaysia. Do you want to make any comment on that?

39    The male appellant’s response appears sensible. He said his mother did want to see him, and to care for him, but he arranged for her to come to Australia [it appears the first Compliance Client Interview occurred when the appellants were at the airport to meet his mother, who had travelled from Malaysia to do so]. The Tribunal then considered the female appellant.

TRIBUNAL: [Female appellant], again, you were not present when he was being interviewed, so you’re not really able to comment on what he said. Now, I want to talk to both to both of you about [other topics].

40    There was no invitation to the female appellant to respond to this information.

41    Section 424AA(1)(b)(ii) requires the Tribunal to “orally invite the applicant to comment on or respond to the information”.

42    In my view, the Tribunal did not properly provide the female appellant with this opportunity in respect of any of the three pieces of adverse information concerning the Compliance Client Interview. Other than confirming that she was not in attendance at that interview, and so could not verify what was said during that interview, she was not orally invited to comment or respond.

43    The adverse information was not simply what the male appellant was reported to have said, but the fact contained in his statement. It is necessary to look at each of the three pieces of adverse information, and then see how the Tribunal dealt with them to identify why that is so.

44    It is clear that the female appellant (if she was not present at the interview) could not comment on what, in fact, the male appellant had said at the Compliance Client Interview. However, the Tribunal’s reasons indicate that it placed weight on the fact that the male appellant’s mother had urged the appellants to return to Malaysia, and that the Tribunal regarded the male appellant’s response as failing to address its concerns. The female appellant may well have been able to provide a response on that issue of fact (it being the case that the Tribunal accepted that the male appellant had said what is attributed to him at that interview).

45    The Tribunal’s reasons disclose that, in addition to the fact of the male appellant having said at that interview (as accepted by the Tribunal) that there is no reason why he could not return to Malaysia, the Tribunal notes that the male applicant did give a partial response to the Tribunal and then asked whether his wife could speak to the Tribunal to further answer that matter, and was told she would be given that opportunity. However, as the transcript exposes, the female appellant was not given that opportunity, as the Tribunal simply confirmed she was not present at that interview. So his response to that question was curtailed. The same observations may be made about the assertion that the male appellant had said that he intended to return to Malaysia for treatment for his lung disease and the male appellant’s mother’s advice that the appellants return to Malaysia.

46    The FCC, as noted above, in the reasons at [35] concluded that s 424AA had not been complied with. His Honour, in addition to the matters referred to above, noted that the Tribunal in introducing that stage of the hearing, and saying that the reported contents of the Compliance Client Interview raised doubts about the credibility of the appellants’ claims, said that the Tribunal would first start by seeking the male appellant’s comments. As the transcript exposes, the Tribunal did not really give the second appellant the opportunity prescribed by that section.

47    The Minister’s notice of contention seeks to sustain the Tribunal’s decision on the basis that the transcript read as a whole shows the second appellant was given the opportunity to comment on those matters. It is appropriate to note the following.

48    When the female appellant gave her evidence (the male appellant left the hearing room only for part of that period as he is recorded as having interrupted her evidence on one occasion) in response to questions of the Tribunal, but before the Tribunal sought to fulfil its obligations under s 424AA, she was asked if there was anything else she wished to say, and, after her response and Tribunal questions on it, she was asked whether she had said “everything you want to say”.

49    The next sequence of the hearing was the Tribunal addressing the potentially adverse information, as noted in detail above.

50    The Tribunal then directed questions on other matters, clearly directed to the male appellant about the financial dealings leading to their asserted need to leave Malaysia. At the end of that process, the female appellant was asked if there was anything she wished to say. Her response was interrupted as the Tribunal wished to point out that its focus was on why what had been said in the visa application and in the interview by the delegate were different. The female appellant then completed her response. The same procedure was adopted, that is the male appellant being asked to respond and then the female appellant, in relation to the Tribunal’s concern that the appellants had left and returned to Malaysia on two or possibly three occasions during the period they said they were unsafe in Malaysia. The same sequence was adopted on the final topic, namely why there had been such a long delay between the appellants’ arrival in Australia and their application for a protection visa.

51    I do not accept the Minister’s submission that, by confirming that she was not present at the Compliance Client Interview, the female appellant indicated that she could not and therefore did not wish to respond or comment to what was said during the Compliance Client Interview. Indeed, her interruption of the Tribunal at one point indicates that, had she been clearly invited to respond to each piece of adverse information, she would have taken the opportunity to do so. Nor do I place any weight on the female appellant’s failure to attempt to make any further comments on those matters without being invited to do so by the Tribunal. The transcript shows that the occasions when the female appellant was asked to comment, she was asked to do so on a different topic, and when she was given a general invitation to say what she wished, that was before the Tribunal had identified the particular pieces of adverse information.

52    Accordingly, I agree with the primary judge that the female appellant was not given the opportunity to comment on the matters which arose out of the Compliance Client Interview.

53    However, I do not consider that the primary judge was correct in concluding that there was no jurisdictional error in the particular circumstances.

54    At [35] the primary judge posed the question “if that has not been done, was it, in all the circumstances, still fair?” His Honour concluded that there was no unfairness in the circumstances as the female appellant was not present at the time of the interview and therefore “[w]hatever was said could only be conjecture and could not have had any value for the Tribunal.” It was on this basis that the primary judge found there was no jurisdictional error.

55    It appears that the primary judge was saying that the failure to comply with s 424AA could not have materially affected the Tribunal’s decision, so that withholding relief was on the basis that compliance with the requirements of procedural fairness could have made no difference to the result: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at [145].

56    The circumstances in which a court may overlook a ‘minor’ or ‘inconsequential’ breach of natural justice was considered by the High Court in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala). In that matter, Kirby J stated at [131] - [132] (footnotes omitted).

It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness "could have made no difference" to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be "no easy task" to convince a court to adopt it. … Many, if not most, cases of this kind turn on the assessment of the credibility of the applicant for refugee status. There are already enough obstacles to be overcome. Adding to these a mistake affecting the credibility of the applicant is not tolerable.

The reason for the stringent principle of the common law is plain enough. Departure from the fair hearing rule involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision-making power. Those who enjoy such power must conform to the conditions of the grant. If they do not, they have not exercised the power in accordance with law but, instead, in accordance with some personal predilection. Correction by the issue of the constitutional writ simply upholds the rule of law. It does not assure the victim of the breach of ultimate success. But it does assure that person of the privilege belonging to all those affected by the deployment of power by officers of the Commonwealth. This is that such officers will only act in accordance with their lawful mandate. The exception, accepted by Stead, is held in reserve to guard against insignificant, purely formal and immaterial mistakes. Unless the breach can be so classified, the person affected who claims the writ is normally entitled to relief.

57    The primary judge’s analysis focuses on the fact that the second appellant was not present at the Compliance Client Interview and that, therefore, she was not in a position to give direct evidence of what was said or to “reach into the mind of the First Applicant and be able to interpret or explain certain answers.”

58    For the reasons given, I do not consider that the circumstance admitted such a conclusion. The adverse information which was put to the appellants was not limited to the fact of statements made by the male appellant, but also to the significance of those statements. Nor does the opportunity provided for under s 424SAA(1)(b)(ii) limit the response which may be given to evidence of the fact of such a statement. It may, by way of example, include a response to the allegedly adverse information concerning the circumstances in which it was made so that it may be understood as consistent with the appellant’s case, or to the context of the statement and not merely the fact that it was made. As the Tribunal is, of course, operating with a mind open to persuasion, it is not possible to know or predict whether any particular response might sew a seed leading to the particular concern of the Tribunal being assuaged or to the Tribunal being more readily satisfied of the merits of the claim.

59    An illustration of that, by way of example, is to suppose that the male appellant had directly told the officer that the female appellant was not a credible witness. Clearly the female appellant would not be confined to commenting on the fact of what was said and prohibited from commenting on the male appellant’s statement, otherwise the female appellant would not be provided with an opportunity to respond. Of course, any example is vulnerable to criticism. It is the principle which is important.

60    Indeed, the Minister, correctly in my view, accepts that the FCC, having found that s 424AA had not been complied with, should have concluded that jurisdictional error had been established: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3.

61    In the circumstances, it is not necessary to address the other contentions of the appellants.

ORDERS

62    I have made some general comments about the extent to which the Tribunal might reasonably have placed weight on the male appellant’s Client Compliance Interview. The record of that interview indicates that no interpreter was present. After 10 minutes, the decision to detain the male appellant was made. The following 45 minutes (the Part B – Interview) records information. Obviously, the conversation was more detailed than as recorded, and given the absence of an interpreter the potential for some misunderstanding existed. It is not clear that the relevant officer fully understood what was said, for instance the male appellant is recorded – on the officer’s understanding – as a “voluntary removal”. The record of interview in relation to the question “Are you willing to depart Australia?” has the box “Yes” crossed by the interviewer, but adjacent to that is the entry: “*I want to stay*”. The female appellant was apparently also taken into immigration detention on 9 March 2014 with the male appellant, as noted in the delegate’s decision (the Client Compliance Interview is recorded as completed at 22.55 on 8 March 2014). There is in the materials no other reference to how she came to be detained.

63    Ultimately, that is all a matter for the Tribunal when it reconsiders the visa applications. However, it is not self-evident that the choice for the Tribunal is between the departmental officer fabricating what was said by the male appellant, and the male appellant himself making up a different version to the Tribunal (see Tribunal reasons at [24]-[25]). The departmental officer has a difficult task, including converting what was understood to have been said into a brief note form, or by marking the boxes in the form, and in this case without the benefit of an interpreter; and there is no means (or expectation) for the officer to record any incidental, or explanatory, comments made to the interviewee during the interview.

64    For the reasons given, the appeal is allowed.

65    The orders of the FCC are set aside. In lieu thereof it is ordered:

(1)    that a writ of certiorari be issued removing into this Court to be quashed the decision of the Tribunal of 25 July 2014;

(2)    the application of the appellants to the Tribunal be remitted to the Tribunal to be reconsidered according to law.

66    The Minister should pay to the appellants their costs of the application to the FCC, and to this Court (although as the appellant’s appeared in person on this appeal, their costs will no doubt be minimal, especially as the Minister prepared the Appeal Books).

Associate:

Dated:    11 June 2015