MRT Makes Independent Telephone Calls

In SZKTI v MIAC [2008] FCAFC 83 (28.5.08), the Full Federal Court found that the RRT can not make independent telephone calls to witnesses without then referring the evidence obtained to the review applicant. The applicant supplied a reference to the RRT and the RRT member then telephoned the writer of the letter post hearing and relied on what was said to affirm the decision. The contents of the telephone call was not referred back to the applicant for comment.

The call concerned a fellow church member and the RRT member was surprised that fellow church member did not have details of the applicant’s church activities in the country of origin and that influenced the member to disbelieve the applicant.  The Full Federal Court found that the RRT failed to follow procedure and refer the evidence gleaned in the telephone call to the applicant.  The Court concluded:

46 There are important consequences which might flow from such a failure… First, there is no clear material to identify what Mr Cheah [the recipient of the RRT’s telephone call] was asked by or told the tribunal. One reason for the requirement laid down in s 424B is that where the information is to be provided in writing, there is a record of a writing. If it is to be provided at an interview, the interview is to occur on a particular occasion at a particular place and time. The [RRT] is likely to make a record in that event, although it does not have to do so. But, more significantly, the person from whom the information is being sought will be given a fair opportunity to prepare himself.. to provide that information with the consideration and degree of accuracy that a fair hearing of the application for review application demands. After all, one of the [RRT]’s most important functions is to consider whether Australia owes protection obligations to an applicant for review. An erroneous finding could have very significant consequences for that person, who may be returned to a country in which he.. is actually persecuted or put to death, as he.. may claim to fear (cf: Reg v Home Sec; Ex p.  Bugdaycay [1987] AC 514 at 531F-G per Lord Bridge of Harwich).

47 An impromptu telephone call received by a person who can provide the tribunal with information could be regarded by the recipient with suspicion or reserve. Unless he or she is assured he or she is speaking to the [RRT] itself, as opposed to an unidentified person claiming to be a member of the [RRT].. the recipient of the call may not give a full and frank or even a considered and accurate response. Moreover.., Mr C was contacted in a telephone call 2 months after he wrote his letter. Whether he accurately recalled to mind in the telephone conversation all the details he knew of the appellant, in circumstances where he may not have been fully prepared to discuss the appellant’s circumstances or to give a fair account of his knowledge in respect of the information being sought, is not known. That is one reason why Div 4 of Pt 7 of the Act provides a detailed procedure for seeking such information which a person is invited to provide.

48 The [RRT] drew an adverse inference against the appellant based on what it said was Mr C’s “superficial knowledge” of his profile in China and his “understanding”.. the appellant had been a Christian there. In one sense, all Mr C could say with accuracy is.. he understood.. the appellant was a Christian in China because Mr C had not been in China observing the appellant. The [RRT]’s implied criticism of the appellant because of Mr C’s “understanding” is odd but may have been open to it had it undertaken a fair procedure. It would be open to a person in Mr C’s position to say, when telephoned some 2 months after he had written a letter about a person, who may have been one of many with whom Mr C had dealings, that he had an “understanding” about the person. Indeed, that could be a natural response in the circumstances of being asked the question without prior warning. He could have been caught on the run, he may not have been able to focus his mind fully on what was happening, he may have been suspicious about who was asking him for the information, or he may not have been sure.. it was appropriate.. he provide it in the circumstances.. it was sought. That is why the Act provides a procedure for seeking that information from a person in Mr C’s position.

49 The formality of compliance with ss 424(3) & 424B, ensures that the information.. the tribunal receives from such a person is given by him or her in the knowledge that he or she has been formally invited to give it. One reason why a person may want such a formal invitation is that he or she may have an adverse comment to make about the applicant for review and wish to have the protection of an occasion of a formal statutory enquiry, as opposed to a casual telephone call.

50 While the [RRT] was at liberty to choose among the methods provided in Div 4 of Pt 7 by which it might obtain the information sought from Mr C, it was not at liberty simply to telephone him, without warning, and ask him questions. In VEAL (2006) 225 CLR at 96 [16], Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ said that the principles of natural justice, or procedural fairness, were not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise. They said that because the principles of procedural fairness focus upon procedures, rather than outcomes, it was evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They said that they are to be applied to the processes by which the decision would be reached.

The above decision was made before the amendments about merit review procedure came into force, but the principles outlined in this decision are equally applicable under the amended laws.

Complexity in merit review processes

The merit review provisions of the Migration Act are complex and the MRT often seems to interpret the merit review provisions in a complex merit review scheme.  Here are some examples.

Firstly if the visa applicant is sponsored then only the sponsor has a right of merit review and the sponsor has to sign the documents and have carriage of the review.  This is set out in s. 338(5) or (8) and s. 347(2)(b) which state:

s. 338

(5)      A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

(a)      the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

(b)      the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i)      an Australian citizen; or

(ii)      a company that operates in the migration zone; or

(iii)      a partnership that operates in the migration zone; or

(iv)      the holder of a permanent visa; or

(v)      a NZ citizen who holds a special category visa.

 (8)      A decision, under s. 93, as to the assessed score of an applicant for a visa is an MRT-reviewable decision if:

(a)      the visa is a visa that could not be granted while the applicant is in the migration zone; and

(b)      the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i)      an Australian citizen; or

(ii)      the holder of a permanent visa; or

(iii)      a NZ citizen who holds a special category visa; and

(c)the Minister has not refused to grant the visa.

S. 342(2)(b)

(2)      An application for review may only be made by:

(a)…

(b)      if the MRT-reviewable decision is covered by s. 338(5) or (8)– the sponsor or nominator referred to in the subsection concerned;

The MRT takes the view that the sponsor gets the invitation to a hearing and only the sponsor can be represented (ie therefore NOT the visa applicant).  All this requires careful planning and careful liaison with the sponsor, particularly if the sponsor is a state or territory authority.  State or territory authority public servants often do not understand the migration merit review process or have a deference to DIAC to the detriment of the visa applicant. In any merit review process which relies on a sponsor a visa applicant has to ensure that the sponsor is clearly aware of the process and that the sponsor does not inadvertently or deliberately stymie the whole merit review application.