Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
was in any event in the context of the appellants' case for contravention of s 424A that the appellants drew attention to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [230] - [234] (Allsop J), where in the light of what was said in Aala and SAAP , his Honour observed as follows as to consequences flowing generally from a beach by the Minister of s 424A: Section 424A not having been complied with, the appellant is entitled to statutory writs under s 39B(1) of the Judiciary Act 1903 unless a legitimate reason to withhold such relief can be identified. ... subject to what follows, if s 424A is not complied with, the Court does not engage in an enquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision. In the operation of s 424A and the principles of procedural fairness, adherence to mandated process and procedure is vital... as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP . No such considerations apply here... if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld. ... What the majority in SAAP stated was that one did not engage in an evaluative analysis of the triviality or seriousness of the failure to observe the statutory requirements. The same was said by Gaudron and Gummow JJ in Aala. However, Aala and SAAP leave open... the basis to refuse relief if it can be shown that grant of relief would lack utility. The examples given... in Aala ... were: (a) where the decision-maker was bound by the governing statute; (b) where the submissions could only have been answered, as a matter of law, against the person denied the opportunity of making them; and (c) if the decision under review has no legal effect. If it can be shown that there was a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in...Aala to warrant withholding of relief. The federal magistrate concluded that the Tribunal found that "even if the claims made by the applicant were true he was not a refugee". Unlike the federal magistrate, I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal. The failure to comply with s 424A has not been shown to be entirely separate from an unimpeached basis for the decision.' The further issues remain therefore, first as to whether in all the circumstances, the Tribunal did contravene s 424A in the light of what was held at [233] of SZEEU above as to 'a basis for the Tribunal's decision which [is]... entirely independent of the failure to follow s 424A', and in any event, whether any discretionary factor (being delay in particular) should so operate as to deny relief to the appellants. As to the existence of any contravention of s 424A, there remains of course the issue of an absence or otherwise of operation of subsection (1) thereof in any of the circumstances excepted by the terms of subsection (3) thereof relating to '... information... not about the applicant... and... just about a class of persons of which the applicant... is a member' , or, 'information... that the applicant gave for the purpose of the application...'. As to the existence of any such basis for the Tribunal's decision which was entirely independent of a failure to follow s 424A(1) (see again [233] of SZEEU extracted above), the Minister referred to a number of Federal Court authorities exemplifying denial of relief in circumstances constituting an independent basis for a decision unaffected by breach of s 424A(1), including VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ; (2003) 132 FCR 291 (see in particular [54]-[55] per Gray J). Upon that footing, the Minister pointed out that Nicholls FM had concluded that not only the relocation findings, but also the remaining aspects of the Tribunal's so-called 'three good sets of reasons' , which I have reproduced earlier at [24] of my reasons, 'were unaffected by any breach of s 424A that existed in relation to the first of those separate and independent bases'. The appellants submitted in any event that 'on the basis of the following principles, an examination of the sets of reasons shows that all three sets of reasons forming the parts of the reasons for affirming the decision of the Tribunal are affected by [a] breach of s 424A', the appellants thereby referring to the reasons I have reproduced at length in [24] above. It was asserted by the appellants that '[i]nformation given to the Minister's Department [and] obtained by the Tribunal from the Department and not from [the appellants] is not subject to s 424A(3)(b)', and I was referred in that regard to the Full Court's reasons for judgment in Al Shamry at [17]-[18] per Ryan J and myself jointly, and at [40]-[41] per Merkel J. I reproduce below [17] of the reasons in Al Shamry for ease of reference: Counsel for the Minister accepted that a failure to observe the procedure laid down by s 424A is a reviewable error under s 476(1)(a). It was also accepted that where there is information of the kind described in s 424A(1)(a) particulars of that information must be given to the applicant for the purpose of obtaining his or her comments. However, it was said that the information constituted by the airport interview came within the exception created by s 424A(3)(b) in respect of information given by the applicant for the purpose of the application. "Application" in that context, was said to mean "all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant." We disagree. In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.' It was then submitted by the appellants that '[s]uch information that the tribunal uses to make an adverse appraisal of the applicant's case requires disclosure if the appraisal is a part of the reason for affirming the decision of the delegate'. My reservation with that submission concerns the interpolation of the expression 'appraisal' in the context of the wording of s 424A(1)(a) . In any event in that context, the appellants cited SZEEU at [20] and [34] per Moore J, at [157]-[165] per Weinberg J, and at [221]-[225] per Allsop J for the proposition that 'a subsidiary and minor part only' of the reasons will suffice. It suffices for me to point in particular to the dictum of Weinberg J (at [164]) to the effect that the 'information' in question 'played a part' , and to Moore J's reasons where his Honour used less definitive descriptions (at [20]-[21]). The appellants asserted further that the conclusion that 'all three sets of reasons for the decision are affected by a breach of s 424A is readily determinable because the tribunal has clearly indicated in its reasons where and when it has obtained the information from the protection visa'. The appellants' submissions continued that '[t]he tribunal made no disclosure of this adverse information and in accordance with the following principles as such the whole of the decision is affected by a breach of s 424A'. As I have earlier foreshadowed, the appellants argued that the Tribunal's so-called first set of reasons constituted a breach of s 424A because the Tribunal used information given by the first appellant in his protection visa application as part of its reasons for affirming the decision of the Minister's delegate. In the course of oral submissions, counsel for the appellants pointed to the Tribunal's reliance on information regarding the first appellant's employment history, place of residence and previous arrest warrants, all being information gleaned from the first appellant's application for a protection visa, and which was purportedly used by the Tribunal in the formulation of its first set of reasons without the appellants being given prior particulars of that information, as stipulated by s 424A(1). That reliance of the Tribunal was undertaken in order to demonstrate differences or inconsistencies between information that the appellants had provided to the delegate of the Minister and the information subsequently given to the Tribunal, being discrepancies that consequently formed the basis of the Tribunal's finding that the first appellant had ' exaggerated or fabricated his political activism and the situation of harm that he faced in Bangladesh '. In support of the contention that information given to the Minister's Department that is obtained by the Tribunal from the Department, and not from an applicant for refugee status, is not subject to the exception contained in s 424A(3)(b) and therefore falls within s 424A(1), the appellants pointed to Merkel J's following observations at [40]-[41] in Al Shamry : An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate's decision... [f]urther, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided, but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance [his Honour's emphasis] of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it... . For the above reasons the construction of the primary judge and I regard as correct gives effect to the beneficial purpose of s 424A of affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the RRT proposes to act, the significance of which the applicant may be unaware. It is consistent with that purpose to take a narrow, rather than a broad, view of the exceptions in s 424A(3).' Given those observations of his Honour not being explicitly or implicitly inconsistent with the reasoning of the majority, which I will assume for the purpose of the argument, those observations underline the need for the appellant to be given particulars of any adverse information submitted prior to the application for review and on which the Tribunal proposes to rely. Further to the foregoing contention of the appellants, it was next said on their behalf that SZEEU provides authority for the proposition that s 424A will be engaged in situations where the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information provided by an applicant and evidence provided thereafter by that applicant. Weinberg J observed at [165] of SZEEU as follows: appellant's credibility was of critical importance to his claim. Any "information" that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played "a part" in the decision. For that reason, the Tribunal's failure to provide the appellant with notice, in writing, of its intention to rely upon that "information" gave rise to a breach of s 424A, and in accordance with SAAP , to jurisdictional error.' By the expression 'intention to rely', I assume that his Honour thereby referred to reliance in decision-making. Moreover Allsop J said at [225] as follows: the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.' It should be here recorded that the Minister's submissions conceded that '[i]n the light of SZEEU , [Nicholls FM] may have erred in the first part of [28] where he seems to accept a distinction between relying upon inconsistencies to reach a conclusion rather than the underlying information'. However Nicholls FM went on to observe (at [28]), germane to the issues here arising for resolution, as follows: I am also persuaded... in the alternative that even if this part of the Tribunal's decision did contain jurisdictional error, it did not have necessary consequence in the ultimate decision to affirm the delegate's decision... For the reasons set out below, the Tribunal's decision can be upheld on the basis of other independent sets of reasons given by the Tribunal, and that any such error, if it does exist in this first set of the Tribunal's reasons, cannot be a basis for setting aside the Tribunal's decision.' His Honour referred in that regard to VEAJ ( ante ). Counsel for the appellants in oral submissions further contended that the second and third sets of reasons (see again [24] above) were also affected by a breach of s 424A because they similarly relied upon information obtained from the appellants' protection visa application. The Tribunal's statement that the appellant ' did not leave Bangladesh until over two months after he obtained his Australian visa' was asserted by the appellant to be one of the observations within the Tribunal's second set of reasons that was based on information contained in the protection visa application and which was said by the appellants to have involved a breach of s 424A. The appellants' further contended that such a finding amounted to 'a part' of the reason of the Tribunal , SZEEU at [158] per Weinberg J and at [225] per Allsop J being relied upon to support their argument that 'a minor and subsidiary part' of the reasons is all that is needed for a breach of s 424A to arise. There is some force in that submission by the appellant. The breach of s 424A that was said by the appellants to arise out of the Tribunal's third set of reasons for decision (see again [24] above) was related to the first appellant's claim that he would face legal action if he returned to Bangladesh. In rejecting that claim, the Tribunal member observed that '[i] n terms of any legal action the applicant faces, I note that he has not been convicted of a crime or any offence' . The appellants submitted that the Tribunal relied on information contained in the first appellant's protection visa application that indicated he had not been convicted of any crimes, and that such a finding formed 'part of the [Tribunal's] reason, because it goes to an integer of the claim and [is] information which requires disclosure under section 424A...'. The Minister contended that while the information regarding the first appellant's previous criminal convictions is 'on the face of it...something which the applicant said to DIMIA', the subsequent statement made by the Tribunal suggested that independent country information formed the basis of the reasoning used to dispel the appellants' claim regarding possible future criminal prosecution. The Tribunal stated in that regard as follows: reasons given elsewhere in this decision I do not believe that his claim that he faces any cases (false or otherwise) is credible but if he does face a case or cases then I conclude from the country information on the judiciary on page 12 that he would eventually secure justice.' The Minister submitted that 'because of that word " but "... and reading that paragraph in context, the Tribunal is saying, well, on the one hand I note that he has not been convicted of any crime or offence, but then saying even if he had been, then because of the independent [country] information on the judiciary no harm is going to come to him'. There is force in that submission of the Minister, and upon reading that paragraph as a whole, it would appear that the Tribunal's reasoning was indeed based on independent country information, rather than the first appellant's application visa. The Tribunal's findings in relation to relocation contained in the final or third of the three sets of reasons were in any event not visited with jurisdictional error, since they were based on country information that fell within the exception to disclosure contained in s 424A(3)(b). On the footing of the appellants' case that all three of the Tribunal's so-called 'three good sets of reasons' were to no avail because of the Minister's contravention(s) of s 424A of the Migration Act , the appellants asserted that '... the determinative issue on appeal is whether there was unwarrantable delay on the part of the appellants disentitling them from the grant of relief'. I would interpolate the description 'ultimate' for 'determination', for what that may matter. I have already summarised the evidentiary material bearing upon that issue of delay. The appellants seemingly acknowledged that Nicholls FM 'found the delay unwarrantable because it was for a period of 13&#189; months between notification of the decision of the tribunal and the application for review', and further that his Honour found that 'no explanation for the delay was given despite being sought', and moreover that the appellants 'were not unfamiliar with the application process' and their delay '... was inconsistent with the action of someone who fears persecution and claims to [be] aggrieved by the Tribunal'. So much may be in any event inferred from the evidence placed before his Honour. The rejoinder of the appellants to those findings of the Tribunal was, somewhat confusingly, that Nicholls FM '... miscarried in his discretion to not grant the relief sought', because '[r]ather than ask whether the circumstances of the delay justified withholding the relief in the event that [the] appellants established that the tribunal had committed a jurisdictional error, the Federal Magistrate proceeded on the basis that the appellants were required to satisfy the Court that the discretion should be exercised in [their] favour having regard to the fact that the delay exceeded 13&#189; months'. The reality apparent from the objective circumstances was that the appellants had no viable answer to the Minister's case on delay. Independently of the factor of delay, I am in any event of the opinion, for reasons appearing cumulatively in the course of my consideration and appraisal already of the s 424A issues extensively raised by the appellants and debated seriatim by the respective parties, being the issues I have already discussed at some length, that the appellants have not established that all three of the Tribunal's independent grounds for dismissing the appellants' visa applications, as articulated in the Tribunal's 'three good sets of reasons', breach s 424A of the Migration Act . Reference should again be made in that regard to SZEEU at [231], where Allsop J observed that where there can be shown an independent basis, 'otherwise unimpeached, upon which the decision was reached... relief can be withheld'. The existence of the unimpeached third set of reasons of the Tribunal's reasons for judgment thus operates as a basis upon which relief can be withheld, regardless of any finding of unwarrantable delay. In the present litigation, the task of the second Tribunal in establishing and assigning significance to the extensive array of circumstances placed before it was a formidable one, as the three grounds or sets of reasons of the Tribunal below, extracted in [24] above, have duly exemplified. No sufficient or adequate basis for any successful appeal from the reasons for decision of the Federal Magistrates Court have been established by the appellants, for the reasons apparent from my analysis of the issues arising and circumstances prevailing, and which I have addressed in the two preceding segments of these reasons. Because of the number and extent of the issues raised by the appellants on this appeal, and which I have resolved in favour of the Minister, it is unnecessary to repeat the same in the context of these conclusions. The appeal must be dismissed, and the appellants ordered to pay the Minister's costs of the appeal. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 18 September 2006 Counsel for the Appellant: Mr A B Slattery Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 29 May 2006 Date of Judgment: 18 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1244.html