Case: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: cited
By further amended application filed in the Federal Magistrates Court the appellant asserted that the Tribunal fell into jurisdictional error as it, in summary: 1. Denied the appellant procedural fairness by failing to invoke its power under s 427(1) to conduct any investigation in respect of the documents furnished by the appellant and upon which it placed no weight. The documents relevant to this submission were police and Court documents, and letters of support provided to the Tribunal post hearing. In relation to this submission the appellant relied on the decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 , where the Full Court found that, where a Tribunal found documents to be part of an elaborate fraud, but that the genuineness of documents could have been established by prompt investigation and there was no impediment to such an inquiry, a failure by the Tribunal to exercise the power under s 427(1)(d) was a denial by the Tribunal to conduct a fair proceeding. Counsel for the appellant contended in this case that there was an obvious need to make further inquiry, that no impediment existed to such an inquiry, that the concerns of the Tribunal could have been readily resolved, and that to do so otherwise was a denial of procedural fairness in accordance with the principles espoused in Applicant M164 [2006] FCAFC 16. 2. Did not provide the applicant, in accordance with s 424A Migration Act 1958 (Cth), the particulars of information the Tribunal considered was the reason or part of the reason for affirming the delegate's decision. 8 Section 427(1)(d) , upon which the appellant relied in relation to the first ground, reads as follows: (1) For the purpose of the review of a decision, the Tribunal may: ... (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. 9 Emmett FM noted that, since Applicant M164 [2006] FCAFC 16 , the Act had been amended to include s 422B. Section 422B is in Pt 7 Div 4 of the Act, and reads: (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. (2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 10 Her Honour noted that, as a result of the enactment of s 422B , common law rules as to natural justice do not apply in relation to matters heard under the Act. Accordingly, it was not open to the appellant to find any jurisdictional error in the case before the Court on a denial of procedural fairness arising out of a breach of s 427(1)(d). 11 Further in relation to this ground, the appellant submitted that a failure to exercise discretion under s 427(1)(d) was a failure to comply with s 430 and a failure to act in accordance with s 420. The Federal Magistrate found the Tribunal explored concerns about police reports in a cogent manner and in the circumstances reasons to place no weight on documents were reasonable and not "slight". In relation to letters provided post hearing her Honour found that where letters departed from the assertions of the appellant the Tribunal's preference of the evidence of the applicant was an evaluation by the Tribunal of the evidence before it. It was open to the Tribunal to come to the findings and conclusions it did. There was no need for Tribunal to consider whether to exercise power under s 427(1)(d). The Federal Magistrate was far from being persuaded that a breach of s 427(1)(d) amounts to jurisdictional error or that the Tribunal committed a breach of s 420 or s 430. 12 In relation to the second ground, namely the alleged breach of s 424A , Counsel submitted that the Tribunal had regard to matters stated by the appellant in his protection visa application without giving written notice to the appellant of that information inviting his comment. Emmett FM said that not every piece of information that is a part of the decision is captured by s 424A only that information that is part of the reason for affirming the decision under review. In her Honour's view, it was clear that any inconsistency in the claims in the protection visa application with the appellant's claims before the Tribunal played no part in the reasons why the Tribunal did not accept that the appellant was falsely charged with a killing of a person in Bangladesh, or that he was assaulted by the BNP. Her Honour said the Tribunal stated the reasons for its decision, and they did not include the information identified by the appellant. Further, the only information to which the Tribunal had regard was evidence and material given by the appellant to the Tribunal for the purposes of the review, which is excluded from the obligations of s 424A by operation of s 424A(3)(b). 13 Accordingly, her Honour was of the view that she had no jurisdiction to interfere with the decision of the Tribunal, and dismissed the appellant's application. 14 By notice of appeal to this Court filed 3 October 2006 the appellant raised similar grounds as those which were raised before her Honour: 1. The Tribunal acted in breach of s 424A by not providing the appellant with particulars of information which was the reason or part of the reason for the decision of the Tribunal, in particular in relation to question 6 of the protection visa (whether the appellant had ever been charged with a criminal offence) referred to by the Tribunal at CB 94.2, and which was used to bolster its conclusion that the appellant did not face false charges and did not fear persecution at CB 104.1 and 105.9. 2. The Tribunal failed to discharge its duty in accordance with s 430 of the Act and failed to act in accordance with substantial justice and the merits of the case, in accordance with s 420 of the Act. 15 The submissions of the appellant were in terms however of error by her Honour as to her findings in relation to these grounds. 25 This ground of appeal is again substantially a restatement of the first ground of review before her Honour, in relation to which her Honour found against the appellant. In summary, the appellant submits that: &#8226; her Honour erred in finding that "it is not open to the Applicant to find any jurisdictional error in the case before this Court on a denial of procedural fairness arising out of a breach of s 427(1)(d)" by reason of the introduction of s 422B into the Act &#8226; her Honour's application of the Full Court's majority decision in Applicant M164 (2006) FCAFC 16 was misconceived in view of later Federal Court decisions applying the reasoning in Applicant M164 (2006) FCAFC 16 following the introduction of s 422B. Dr Azzi in particular drew the Court's attention to SZERH v MIC [2007] FCA 184 at [28] &#8226; the Tribunal committed jurisdictional error by not seeking to exercise its powers under s 427(1)(d) of the Act to require the Secretary to investigate the veracity of letters produced from various politicians which supported the claims of the appellant, where the need for such confirmation was "obvious" and where no impediments in terms of the addressee's location and details or issues of privacy and protection of the appellant dictated against the making of any such inquiries: Applicant M164 (2006) FCAFC 16. 28 As submitted, in my view correctly, by Mr Braham for the respondent, s 422B of the Act clearly provides that the rules of natural justice are exhaustively described in the provisions of Pt 7 Div 4 of the Act (cf comments of the Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61). Section 422B applies to applications for visas made on or after 4 July 2002 (Item 7 of Sch 1 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)), including the application before me. There are no provisions in Pt 7 Div 4 requiring the Tribunal to undertake an investigation in the form sought by the appellant, or entitling the appellant to such an investigation. As pointed out by the Full Court in Applicant M164 (2006) FCAFC 16 at [75] : Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.