FEDERAL COURT OF AUSTRALIA

SZUON v Minister for Immigration and Border Protection (No 2) [2019] FCA 348

ORDERS

THE COURT ORDERS THAT:

1.    The time within which to appeal the judgment of the Federal Circuit Court of Australia delivered on 23 September 2016 is extended.

2.    The appellant have leave to file an amended notice of appeal.

3.    The appeal is allowed.

4.    The judgment of the Federal Circuit Court of Australia delivered on 23 September 2016 is set aside.

5.    The decision of the second respondent made on 19 May 2014 affirming a decision of the first respondent made on 25 January 2013 to refuse the appellant a Protection (Class XA) visa is quashed.

6.    The second respondent make a decision upon the appellant’s application for review of the decision of the first respondent according to law.

7.    The first respondent file and serve any submissions as to costs (not exceeding five pages) by 4pm on 18 March 2019.

8.    The appellant file and serve any submissions as to costs (not exceeding five pages) by 4pm on 25 March 2019.

9.    The first respondent file and serve any submissions in reply (not exceeding two pages) by 4pm on 1 April 2019.

10.    In the absence of any request by a party for an oral hearing as to costs, the question of costs will be decided on the papers.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application for an extension of time within which to appeal against a judgment of the Federal Circuit Court of Australia delivered on 23 September 2016. The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) that affirmed a decision of a delegate of the first respondent (the Minister) to refuse the applicant a Protection (Class XA) visa.

2    The application was filed on 27 October 2016, 13 days beyond the time limit required for the filing of a notice of appeal. No intelligible explanation has been given for the delay. However, as will appear, I consider that there is sufficient merit in the proposed appeal to warrant an extension of time.

3    The parties have made submissions upon both the application for an extension of time and the appeal. It is convenient to refer to the applicant as “the appellant” throughout these reasons.

4    The principal ground before the primary judge, and before this Court, concerned whether the appellant was denied procedural fairness by the Tribunal member’s failure to answer a query raised in correspondence by the appellant’s then migration agent. The query was, in effect, whether the Tribunal wished the appellant to make a Freedom of Information (FOI) request. The Tribunal member did not respond, apparently misunderstanding the agent as stating that he was going to make an FOI request. When no documents were received by the Tribunal, the member proceeded to make the decision affirming the delegate’s decision. The applicant claims to have been denied the opportunity to place further documents before the Tribunal.

5    The nature of the principal ground makes it necessary to set out the procedural history of the application before the Tribunal in some detail.

The appellant’s claims

6    The appellant is a citizen of Iran. He arrived in Australia by boat in April 2012. The delegate made a decision refusing the grant of a visa on 25 January 2013.

7    The appellant then made an application to the Tribunal for review of the delegate’s decision. The appellant claimed that in 2009, he was arrested in Iran for drinking alcohol at a party at his brother-in-law’s home, detained for two days, and sentenced to a fine and 20 lashes. The physical punishment was a suspended sentence. The appellant claimed to have then worked in his brother-in-law’s illegal satellite-dish distribution business from September 2011. The police raided the business in April 2012, prompting the appellant and his brother-in-law’s family to flee Iran. The appellant claimed to fear that the suspended sentence of lashing would be carried out.

8    The appellant travelled to Australia with his brother-in-law, his sister and their child. His brother-in-law and his family were granted protection visas.

The proceedings before the Tribunal

9    The Tribunal conducted a hearing on 25 March 2013. The appellant gave evidence. He was represented by a migration agent. It was part of the appellant’s case that his brother-in-law had been granted a protection visa in respect of claims arising from precisely the same events as those claimed by the appellant.

10    On 8 April 2013, following the hearing, the appellant’s migration agent provided a document and further submissions to the Tribunal.

11    On 19 April 2013, the Tribunal wrote to the appellant, saying:

In your statement of claims, you stated that you travelled to Australia with your sister…brother-in-law…and your nephew…The Tribunal understands that each of these people has sought protection in Australia. You may wish to consider – if you are in contact with your relatives and they are willing to assist you with any relevant material – whether you wish the Tribunal to also take into account their statements of claims, any Department decision, etc.

This is not a request or invitation. The Tribunal will allow another fourteen days for any submissions, and will not proceed to a decision before 3 May 2013.

12    On 26 April 2013, the appellant’s migration agent wrote to the Tribunal confirming that the appellant wished the Tribunal to also take into account his relatives’ “statements of claims”.

13    On 30 April 2013, the Tribunal wrote to the migration agent as follows:

To avoid any misunderstanding, the Member wishes to confirm that it will be up to [the appellant] to provide any further submissions by 3 May 2013, including any material relating to his relatives’ protection claims. The Tribunal will not be undertaking further enquiries in this regard. The Member will have regard to all the material before him when finalising the matter.

14    On 3 May 2013, the appellant’s migration agent sent the Tribunal a statement setting out the brother-in-law’s claims for protection, together with a submission that the statement was consistent with and supported the appellant’s claims.

15    The Tribunal responded on 23 May 2013, saying, relevantly:

Thank you for the written advice that [the appellant’s] brother-in-law has been found to be a refugee. The Tribunal received a copy of his original statement of claims.

The Member advises that the material before him indicates that [the appellant’s] brother-in-law originally presented similar claims to those of [the appellant], but it does not indicate the basis on which he was ultimately given protection (for instance, whether there were any subsequent claims or on what reasoning he obtained protection). If [the appellant] wishes the Tribunal to consider any further materials, he should submit them promptly.

16    The migration agent responded by letter dated 29 May 2013, stating:

Would you please inform the Member that we have spoken to Craddock Murray Neumann, Lawyers, who represented [the appellant’s brother-in-law] and [the appellant’s sister] on their refugee claims, have advised us that DIAC did not provide their Clients with reasons for the Delegates positive decision. We are aware that this is standard practice. Reasons are only given when there is a negative decision. Accordingly, we will now lodge an FOI Application with DIAC to obtain the reasons for the decision if the Members wishes us to do so.

We should mention that in discussion with [the brother-in-law] he has not mentioned any subsequent claims.

(Emphasis added, errors in the original.)

17    The Tribunal did not respond to the migration agent’s letter of 29 May 2013.

18    The Tribunal made its decision affirming the decision not to grant the appellant a protection visa on 19 May 2014. In its decision record, the Tribunal considered the relevance of protection visas being granted to the brother-in-law and family. The Tribunal said:

14.    …The applicant…emphasised that his brother-in-law was the host of the party which resulted in the court action, employed him in the satellite dish installation business, made his travel arrangements and, in other respects, treated the applicant like a ‘kid brother’. The Tribunal has taken these factors into account in its assessment of the applicant’s claims and evidence.

15.    The applicant advised the Tribunal that his brother-in-law, his sister and their child have been granted protection as refugees. He provided a copy of [the brother-in law’s] original statement of claims, a brief two-page description of the incidents in October 2009 and April 2012. The applicant’s representative noted that the statement ‘is consistent with and supports [the applicant’s] claims’, and requested the Tribunal to take this into account in its decision. It is unclear from [the brother-in law’s] statement, or from his oral evidence to the Tribunal, whether he relied on any further claims and evidence, although the representative wrote on 29 March 2013 that he was not aware of any. The Department’s reasons for granting [the brother-in law] and his family protection are also unclear. The representative wrote on 29 May 2011 that he would seek a copy of the Department’s reasons, through an FOI application, but the Tribunal has not received any further material.

(Emphasis added, names omitted.)

19    The Tribunal went on to conclude that it did not accept the appellant was convicted in 2009 of an offence that resulted in a fine and a suspended sentence of 20 lashes. The Tribunal found that, at best, the appellant only had a peripheral role in his brother-in-law’s satellite-dish business. It was not satisfied that he had a political opinion that had in the past, and would in the future, motivate him to engage in political activities. In reaching these conclusions, the Tribunal took into account “inconsistencies and anomalies in his evidence”.

20    The Tribunal was not satisfied that the Iranian authorities or their agents had persecuted the appellant for his membership of a particular social group that could be described as “young Iranian”, nor that there was a real chance they would do so in the reasonably foreseeable future. The Tribunal also rejected the appellant’s claim that he faced a real chance of persecution as a failed asylum seeker.

21    The Tribunal returned to the topic of the protection visas granted to the appellant’s brother-in-law and family, and said:

52.     The Tribunal accepts that the applicant’s brother-in-law and sister, and their family, have been granted protection in Australia. The Tribunal has examined their original statement of claims, which also rests on the alleged October 2009 arrest at the party, and the authorities’ discovery in April 2012 of the unauthorised satellite dish business. This statement is broadly, consistent with the applicant’s, and therefore tends to support his claims. Nonetheless, the applicant’s role and profile in relation to the two (alleged) incidents were peripheral compared to his brother-in-law’s claimed involvement and culpability. Furthermore, the Tribunal does not have before it any decision record or other evidence to confirm that the brother-in-law and his family obtained protection based on the Department’s acceptance of their claims as presented. These circumstances do not, therefore, alter the Tribunal’s analysis and conclusions above.

22    The Tribunal rejected the appellant’s claims for protection and complementary protection under ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act). It affirmed the delegate’s decision not to grant the appellant a protection visa.

The Federal Circuit Court judgment

23    The primary judge set out, in full, the terms of the lengthy application filed on behalf of the appellant. His Honour observed that neither the grounds pleaded, nor the submissions of the appellant’s counsel at hearing, provided a clear or concise articulation of the errors on the part of the Tribunal that the appellant sought to press.

24    The primary judge understood the first ground to be an allegation of denial of procedural fairness on the basis of the Tribunal’s failure to respond to the letter from the appellant’s migration agent concerning whether the Tribunal wished an FOI application to be made, thereby denying the appellant the opportunity to provide further documents to the Tribunal. His Honour referred to the post–hearing correspondence and the Tribunal’s decision record, finding:

36.    In short, the Tribunal was in error in characterising the representative’s question as a statement. That is the Tribunal stated that the representative would produce further material and did not do so. Yet the representative had asked the Tribunal if it wanted him to pursue the matter of the Department of Immigration’s reasons for approving the brother-in-law’s protection visa application and to provide reasons for this to the Tribunal.

…

40.    …The representative’s letter does state that the mechanism (FOI) to obtain the statement of reasons in the brother-in-law’s case would be lodged “if the Member wishes us to do so”.

41.    At [15] the Tribunal does make reference to the representative’s letter and relevantly, the Tribunal stated that the “representative wrote on 29 May 2011 [in context this should be read as 2013] that he would seek a copy of the Department’s reasons, through an FOI application”.

42.    On its face, the Tribunal’s characterisation of the representative’s question as a statement was not an accurate reflection of what the representative actually wrote.

(References to the Court Book omitted.)

25    However, his Honour concluded that there was no denial of procedural fairness. His Honour noted that on 30 April 2013, the Tribunal had written saying:

To avoid any misunderstanding, the member wishes to confirm that it will be up to [the appellant] to provide any further submissions by 3 May 2013, including any material relating to his relatives’ protection claims. The Tribunal will not be undertaking any further enquiries in this regard.

26    Further, on 23 May 2013, the Tribunal said:

If [the appellant] wishes the Tribunal to consider any further materials, he should submit them promptly.

27    The primary judge held:

57.    What is immediately apparent is that throughout this correspondence the Tribunal emphasised that it was for the applicant to submit whatever material he wanted the Tribunal to consider in support of his claims. There was no suggestion that the Tribunal was seeking any information or would provide any advice as to what information he should submit. This approach is consistent with the proposition that it is up to the applicant to make out his case…

58.    At no point did the Tribunal ask the applicant’s representative or the applicant to obtain any documents. For example, as the Tribunal made clear in its letter of 19 April 2013 it was not requesting or inviting the submissions of any document from the applicant. What he chose to submit was a matter for him.

59.    It must be said that, in the circumstances, the representative’s “question” to the Tribunal can only be seen as disingenuous. The applicant’s representative, as a registered migration agent, would be expected to have a certain level of competence in these matters. Why in the circumstances he asked the Tribunal’s view as to whether it wanted the applicant to obtain the delegate’s decision record, relating to the applicant’s brother-in-law, remains unexplained. Ultimately, in the circumstances, it was reasonably open to the Tribunal, given the clear and repeated advice to the applicant and to his representative, to take the view that in reality, the representative was seeking to say he was considering whether or not to press the FOI application.

60.    It must also be said, in all the circumstances set out above, that the applicant’s argument now based solely on the words “if the Member wishes us to do so” is selective in its presentation. As the applicant’s representative went on to say in the same letter he had spoken to the brother-in-law who had “not mentioned any subsequent claims”.

61.    If the delegate’s decision record did not contain any further claims, that may or may not have also applied to the applicant, then what remained unexplained is why the decision record was of any relevance to this Tribunal’s consideration such that the Tribunal member should be invited to indicate whether he wished the applicant’s representative to obtain it.

…

65.    Given the Tribunal’s repeated, clearly stated position, and given that the applicant’s representative should have known that it was for the applicant to make out his case, and also in circumstances where the Tribunal had not given any indication that it wanted the delegate’s decision record, it was, in my view, reasonably open to the Tribunal to proceed on the basis that the applicant’s representative was going to pursue the FOI request for the delegate’s decision and that, subsequently, no further material was submitted.

[References to authorities and Court Book omitted, emphasis added.]

28    For these reasons, the primary judge rejected the appellant’s first ground.

29    The primary judge understood the appellant’s second ground to assert that the “correct” question for the Tribunal was not whether the brother-in-law had a higher profile than the appellant, but rather that the Tribunal should have considered the consequences of the impact of the charges made against the appellant by the Iranian authorities. His Honour noted that the explanation of the ground to the Court in oral submissions did not align with the ground as pleaded. His Honour considered that although the appellant’s counsel made repeated assertions as to the “correct question”, that was, in reality, no more than an attempt to cavil with the Tribunal’s findings of fact.

30    The primary judge understood the third ground to assert that the Tribunal failed to take into account certain matters said to be relevant considerations. His Honour considered that in oral submissions, it became clear that the complaint was not truly a failure to take into account relevant considerations, but a failure to give “proper, genuine and realistic consideration to the merits of the case”, relying on Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [25]. His Honour observed that in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, it was said at [30] that care must be taken to avoid the danger of falling into impermissible merits review, but that was what the appellant’s argument invited the Court to do.

31    The fourth ground asserted that there was an insufficient connection between the decision and the material relied upon to make that decision. His Honour understood this ground to assert that there was an insufficient logical or evidentiary basis for the Tribunal’s decision on the basis of the material before it, and that the Tribunal had failed to consider corroborative evidence. His Honour held that there was no lack of logic in the Tribunal’s approach, nor did the Tribunal fail to consider corroborative evidence, including the brother-in-law’s evidence. His Honour considered that the ground ultimately sought to take issue with factual findings made by the Tribunal which were reasonably open to it on the evidence.

32    The primary judge accordingly dismissed the appeal with costs.

Consideration of the appeal

33    At the commencement of the hearing of the appeal, the appellant’s counsel sought leave to file an amended notice of appeal. That application was opposed by the Minister.

34    The amended notice of appeal is a confusing and prolix document. It is not easy to understand precisely what appellable errors the primary judge is alleged to have made, and what jurisdictional errors the Tribunal is alleged to have made. The document fails to comply with r 36(2)(c) of the Federal Court Rules 2011 (Cth), which requires that a notice of appeal state “briefly but specifically, the grounds relied on in support of the appeal”. Despite that, I will allow the appellant leave to file the amended notice of appeal. To refuse leave would be to visit the default of counsel upon the appellant, and the interests of justice would not be advanced by doing so in the circumstances of the case.

35    No more precision was added to the case by the submissions of the appellant’s counsel. Those submissions reflected a reluctance or inability to articulate and engage with the real legal issues in the appellant’s case.

36    Attempting to understand the appellant’s case as best I can, the grounds seem to assert that the primary judge erred by failing to find that:

(1)    The Tribunal denied the appellant procedural fairness by depriving him of the opportunity to place before the Tribunal documents about the reasons for the Minister’s decision concerning the brother-in-law and his family.

(2)    The Tribunal asked the wrong question. The correct question was not whether the brother-in-law had a “higher profile” than the appellant, but whether the appellant faced serious harm or significant harm due to the prospect of the suspended sentence of lashing being implemented by the Iranian authorities. (This ground also refers to the correct question as being the “correct probative value” to be placed on the fact that the brother-in-law and his family had been granted protection in Australia based on the same claims, but that aspect of the ground, as expressed, is unintelligible.)

(3)    The Tribunal failed to take into account relevant considerations, namely Iranian court documents, an Iranian summons and the appellant’s membership of the family group that had been granted protection based on the same claims. Further, the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case.

(4)    There was an insufficient logical or evidentiary connection between findings by the Tribunal that, on one hand, there was consistency between the evidence of the appellant and his brother-in-law and, on the other hand, that the Tribunal had significant concerns about the appellant’s account and his evidence as a whole.

(5)    The Tribunal denied the appellant procedural fairness by failing to place the appellant on sufficient notice that it may reach a different conclusion from the delegate’s finding that the applicant had been arrested, detained and mistreated and fined for alcohol consumption in 2009 and that he had worked in his brother-in-law’s satellite-dish business.

37    It may be said immediately that there is no substance in the second to fifth grounds. I agree with the reasons of the primary judge in respect of the second, third and fourth grounds.

38    The second ground refers to the “correct” question, but by doing so, the appellant’s counsel merely dresses up in the language of jurisdictional error, a complaint about the merits of the Tribunal’s decision. The appellant has not demonstrated any error of the nature asserted, let alone jurisdictional error.

39    The third ground reflects a misunderstanding of what is meant by “relevant considerations” in administrative law. The appellant’s counsel uses the expression to refer to pieces of evidence that may be relevant to the issues, rather than considerations that the Tribunal is bound, as a matter of construction of the Act, to take into account. The contention that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case is again to dress up in the language of jurisdictional error, an attempt to seek merits review of the Tribunal’s decision.

40    As to the fourth ground, the Tribunal found that some parts of the evidence given and adduced by the appellant were consistent with his claims. However, it found that other parts of his evidence contained inconsistencies and anomalies. The Tribunal declined to accept a number of critical parts of his evidence. There was no illogicality in the Tribunal’s process of reasoning.

41    The fifth ground was not one raised before the primary judge. The appellant requires leave to raise that ground. That leave should be declined because the ground has insufficient merit. That is, at least, because the appellant has not pointed to evidence that demonstrates that “the Tribunal did not give the appellant sufficient notice” that it may reach a different conclusion from the conclusions reached by the Minister’s delegate.

42    For these reasons, the appellant’s second to fifth grounds cannot succeed. There is, however, more substance in the appellant’s first ground.

43    The letter to the Tribunal from the appellant’s migration agent dated 29 May 2013 stated:

Accordingly, we will now lodge an FOI application with DIAC to obtain the reasons for decision if the Members wishes us to do so.

[Error in original.]

44    The Tribunal said in its decision record that:

The representative wrote on 29 May [2013] that he would seek a copy of the department’s reasons, through an FOI application, but the Tribunal has not received any further material.

45    The primary judge found that the migration agent had, in effect, asked a question in the letter of 29 May 2013, and that the Tribunal’s characterisation of the question as a statement was not an accurate reflection of what the migration agent actually wrote. His Honour’s finding was clearly correct, and has not been challenged in the appeal.

46    However, the primary judge went on to conclude, by reference to the course of correspondence, that it was “reasonably open to the Tribunal to proceed on the basis that the applicant’s migration agent was going to pursue the FOI request”. That conclusion seems to conflict with his Honour’s earlier finding, and is not, in my opinion, available from either the text of the letter of 29 May 2013 or the course of correspondence.

47    The letter of 29 May 2013 indicated, in terms, that the migration agent would lodge an FOI application “if the members wishes us to do so”. The Tribunal had indicated in its correspondence of 19 April 2013 that the appellant might consider whether he wished the Tribunal to take into account documentary evidence concerning the brother-in-law’s claims. Some documentary evidence was provided to the Tribunal on 3 May 2013. The Tribunal then wrote on 23 May 2013 pointing out that such evidence did not indicate the basis upon which the brother-in-law had been granted protection and indicating that if the appellant wished the Tribunal to consider any further material, it should be submitted promptly. The appellant’s migration agent replied on 29 May 2013, saying that the brother-in-law had not been provided with reasons for the decision to grant him a protection visa, and indicated that his firm would lodge a FOI application to obtain the reasons if the Tribunal wished him to do so.

48    In this context, the letter from the migration agent was, effectively, a request for an indication as to whether it was necessary for the FOI application to be made in order for the Tribunal to find in the appellant’s favour, given the material that had already been provided. It is apparent that the Tribunal simply misunderstood the appellant’s migration agent’s letter as indicating that a FOI request would be made and further material provided, even though that was clearly not what the letter said. As the primary judge observed, the migration agent would be expected to have a certain level of competence. The migration agent was at fault in failing to follow up the query, or, in the absence of a response, simply making the FOI application and asking the Tribunal for further time. That is particularly so in light of the earlier emphatic correspondence from the Tribunal stating that it was for the migration agent to decide what documents to place before the Tribunal. Be that as it may, the misunderstanding by the Tribunal also seems inexplicable. There was miscommunication between the migration agent and the Tribunal, with fault on both sides.

49    In my opinion, the primary judge erred in finding that it was reasonably open to the Tribunal to proceed on the basis that the migration agent was going to pursue the FOI request and that it was therefore open to the Tribunal to make the decision when no further material was provided.

50    The primary judge made something of the migration agent’s statement in his letter of 29 May 2013 that the brother-in-law had not made any “subsequent claims”. That statement was a response to the Tribunal’s correspondence of 23 May 2013, where the Tribunal noted that there was no indication as to whether the brother-in-law had made any “subsequent claims”. By this, the Tribunal was saying that it did not know if the brother-in-law had made any claims additional to the claims concerning arrest after the party and the illegal satellite-dish distribution business. The primary judge seems to have thought that the reference in the migration agent’s letter to the absence of “subsequent claims’ was an indication that there was nothing in the decision record for the brother-in-law that would have helped the appellant’s case. That was a misunderstanding of the correspondence.

51    Having found that there was appellable error in the judgment of the primary judge, it is necessary to consider whether the appellant was denied procedural fairness by the Tribunal’s failure to answer the migration agent’s query through its misunderstanding of the letter. It was not, of course, necessary for the Tribunal member to reveal his provisional views to the migration agent: see, for example, Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–592. However, it was open to the Tribunal to have responded by saying “yes”, or “no”, or that it was a matter for the appellant to decide how he wished to present his case.

52    Despite the questionable way the appellant’s migration agent conducted the case, it is reasonable to infer that if the Tribunal had replied saying that it was for the appellant to decide, the migration would have then made an FOI application and would have asked the Tribunal for time to provide that information. The issues are whether the Tribunal’s failure to provide any response was misleading, and whether it was obliged to respond in the circumstances.

53    Section 422B of the Act provides:

422B    Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

…

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

54    Section 425 of the Act provides, relevantly:

(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.

55    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the Court said, in relation to s 360 of the Act, a provision in almost identical terms to s 425:

61.    Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case…Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.

(Footnote removed.)

56    In this case, the Tribunal invited the appellant to appear before the Tribunal and give evidence and present arguments, and he did appear. However, the hearing itself is neither the beginning nor the end of the making of the correct or preferable decision: MZZMG v Minister for Immigration and Border Protection (2015) 234 FCR 180 at [43]. The requirement of the Tribunal to invite an applicant to give evidence and present arguments is not necessarily at an end when the applicant has appeared before the Tribunal, but may continue, for example, where the applicant requests that he or she be permitted to provide further evidence: MZAMP v Minister for Immigration and Border Protection (2016) FCA 804 at [61]. The requirement continued in the present case where the Tribunal suggested that the appellant may want to provide further documents, and further correspondence then ensued about the provision of documents.

57    Section 425(1) of the Act requires that the invitation be meaningful, in the sense that it must provide an applicant with a real chance to present his or her case. I consider that the appellant was denied an opportunity to present further evidence through the Tribunal member’s misunderstanding of the letter from the appellant’s migration agent and consequent failure to respond to the letter. The communications between the agent and the Tribunal must be considered in the context that there was ongoing discussion, initiated by the Tribunal, concerning the provision of further material regarding the brother-in-law’s claims following the hearing. Those discussions had not been closed off by the time the appellant’s migration agent sent his letter. There is no suggestion of a deliberate choice by the Tribunal member to decline to reply to the migration agent’s letter on the basis that the discussion was closed, and, to the contrary, the reasons indicate that the member had simply misunderstood the letter. It seems likely that if the member had correctly understood the letter, he would have responded, and that would have given the appellant an opportunity to obtain documents under FOI and present them to the Tribunal for consideration.

58    It is true that under the Act there is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing. In the particular circumstances of this case, given the course of correspondence, the appellant’s migration agent was entitled to expect some form of response from the Tribunal to his query. The Tribunal’s silence was misleading because it suggested that the Tribunal did not require the appellant to obtain the documents. That the migration agent was also at fault does not deprive the Tribunal’s silence of its misleading character. In my opinion, the Tribunal’s misunderstanding and failure to respond deprived the appellant of a fair opportunity to present evidence to the Tribunal. That was a breach of the Tribunal’s obligation under s 425(1) of the Act.

59    Further, the Tribunal’s contravention was material to the outcome of the application: cf Hossain v Minister for Immigration and Border Protection [2013] HCA 34 at [30]. That is, at least, because the Tribunal at [52] indicated that a factor influencing its decision was that the Tribunal did not have before it any decision record or other evidence to confirm that the brother-in-law and his family had obtained protection based on the Minister’s acceptance of their claims as presented. Accordingly, obtaining evidence about the basis of the delegate’s decision to grant the brother-in-law and his family protection visas may well have made a difference to the outcome.

60    It may also be observed that the Tribunal had a power under s 427(1)(c) of the Act to give information to the appellant, and that power is required to be exercised reasonably: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [11]. In view of my conclusion that the Tribunal breached its obligation under s 425(1) of the Act, it is unnecessary to consider whether that provision also required the Tribunal to respond to the migration agent’s query in the circumstances of the case.

61    I find that the Tribunal failed to comply with its obligation under s 425(1) of the Act to provide the appellant with a real chance to present his case. That was a jurisdictional error.

62    The delivery of judgment has been delayed while awaiting the judgment of the High Court in SZMTA. On 25 January 2013, a delegate of the Minister issued a certificate stating that s 438(1)(a) of the Act applied to information in a particular document held by the Minister. The certificate stated that disclosure would be contrary to the public interest because the document contained information affecting personal privacy; information given about, or by, a third party whose identity cannot be disclosed; and information provided in confidence. Although the amended notice of appeal does not challenge the certificate, the Minister filed an affidavit annexing the document and indicating that there was no reason that would prevent the Court from viewing the document. I understand the respondent to concede that the preconditions for the claim that s 438(1) applied did not exist.

63    In SZMTA, the majority of the High Court held at [37]–[38] that notification to the Tribunal from the Secretary of the Department of Immigration and Border Protection that s 438 of the Act applied in relation to a document, triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. However, breach of that obligation only constitutes jurisdictional error if the breach is material: at [38]. The breach is material if it operates to deny the applicant an opportunity to give evidence and make arguments to the Tribunal and to deprive the applicant of a possibility of a successful outcome: at [38].

64    Further, in SZMTA the majority accepted that an incorrect, and therefore invalid, notification by the Secretary that s 438 applies in relation to a document or information can give rise to jurisdictional error in the conduct of a review: at [41]. However, the breach must be material, and will only be material if compliance could realistically have resulted in a different decision: at [45]. Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court can be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision: at [47].

65    The document that was the subject of the s 438 certificate is an email dated 18 January 2013 from a departmental officer identifying certain documents as an Iranian birth certificate, a new version of an Iranian birth certificate and an Iranian National ID card. The email provided brief advice as to how to store the documents electronically and that the documents should be emailed to the “PV Officer” to advise that the original documents had been sighted.

66    The email supports the appellant’s claim to be an Iranian citizen, a claim accepted by the Tribunal. The disclosure of the email to the applicant could not possibly have resulted in a different outcome. The invalid notification by the Secretary that s 438 of the Act applied did not involve the Tribunal in jurisdictional error.

67    I have found that the Tribunal made a jurisdictional error by failing to comply with its obligation under s 425(1) of the Act to provide the appellant with a real chance to present his case. The appeal must be allowed. The decision of the Tribunal will be quashed and the Tribunal ordered to decide the appellant’s application according to law.

68    There would ordinarily be an order that the Minister pay the appellant’s costs of the appeal and the proceeding before the Federal Circuit Court. In this case, there may be reasons why the whole of those costs should not be paid by the Minister, including that there were extensive amendments to the application and notice of appeal, and there was a failed application for my recusal which extended the time for the hearing. I will order that the Minister file and serve any submissions as to costs within seven days, that the appellant file and serve any submissions as to costs within a further seven days and that the Minister file and serve any submissions in reply within a further seven days. I propose to determine the question of costs on the papers unless either of the parties requests an oral hearing.

Associate:    

Dated:    15 March 2019