MRT Makes Independent Telephone Calls

TABLE OF CONTENTS

Introduction

In SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 (28 May 2008), 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, illustrated by the facts of the present case. 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 tribunal 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 or herself 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 tribunal’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 or she is actually persecuted or put to death, as he or she may claim to fear (cf: Reg v Home Secretary; 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 tribunal itself, as opposed to an unidentified person claiming to be a member of the tribunal (or an officer authorised by it to collect information), the recipient of the call may not give a full and frank or even a considered and accurate response. Moreover, in the present case, Mr Cheah was contacted in a telephone call two 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 tribunal drew an adverse inference against the appellant based on what it said was Mr Cheah’s “superficial knowledge” of his profile in China and his “understanding” that the appellant had been a Christian there. In one sense, all Mr Cheah could say with accuracy is that he understood that the appellant was a Christian in China because Mr Cheah had not been in China observing the appellant. The tribunal’s implied criticism of the appellant because of Mr Cheah’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 Cheah’s position to say, when telephoned some two months after he had written a letter about a person, who may have been one of many with whom Mr Cheah 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 that it was appropriate that he provide it in the circumstances in which it was sought. That is why the Act provides a procedure for seeking that information from a person in Mr Cheah’s position.

49 The formality of compliance with ss 424(3) and 424B, ensures that the information that 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 tribunal 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 Cheah, it was not at liberty simply to telephone him, without warning, and ask him questions. In Applicant VEAL (2006) 225 CLR at 96 [16], Gleeson CJ, Gummow, Kirby, Hayne and 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.