FEDERAL COURT OF AUSTRALIA

WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091

MIGRATION – Appeal from Federal Magistrates Court – appellant is a citizen of Iran –Refugee Review Tribunal affirmed decision of delegate to refuse application for protection visa – application for review by Federal Magistrates Court dismissed – appellant not furnished with particulars in writing of information the Refugee Review Tribunal had regard to – information not specifically about the appellant – general country information – purpose of information given by the appellant in relation to his application for a protection visa – consideration of obligation on Refugee Review Tribunal to give particulars of its reasoning process – whether Refugee Review Tribunal breached requirements of procedural fairness – whether Federal Magistrate erred in not finding that the Refugee Review Tribunal breached the requirements of s 424A of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) s 36, 424A

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 distinguished

WABY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 118 of 2002

TAMBERLIN J

SYDNEY (HEARD IN PERTH)

6 SEPTEMBER 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”), given on 31 October 2001.  The RRT affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa under s 36 of the Migration Act 1958 (Cth) (“the Act”) because it was not satisfied that the appellant was a “refugee” within the definition of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

2                     The appellant contends that the RRT breached the requirements of “procedural fairness” by failing to furnish him with particulars in writing of the matters referred to in s 424A(1) of the Act.  In substance the ground of appeal on this point is that the Magistrate erred in deciding that s 424A(2) of the Act in its amended form (effective from 10 August 2001) was not applicable to this case.  A further contention is that the Magistrate erred in not finding that the RRT breached the rules of common law procedural fairness in failing to adequately furnish these particulars.  As a consequence of these failures, it is said that the RRT exceeded its jurisdiction in such a way that the provisions of s 474 of the Act did not apply and therefore the decision is ineffective and should be set aside.

statutory provisions

3                     Section 424A of the Act provides:

“(1)     Subject to subsection (3),the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

(a)       except where paragraph (b) applies – by one of the methods specified in section 441A; or

(b)       if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3)       This section does not apply to information:

(a)       that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)       that the applicant gave for the purpose of the application; or

(c)        that is non-disclosable information.” (Emphasis added)

4                     In terms, the requirement of s 424A(2)(b) is that an applicant must be given particulars of information up to the time of the RRT decision in the form of a “document”.  Prior to the amendment of s 424A(2) in August 2001, the Act did not require that particulars be given, in documentary form, to applicants who were in immigration detention.  It is common ground that the “prescribed method” for the purposes of s 424A(2)(b), as it now stands, is in writing and that the prescribed method was not followed in the present case.  It is also common ground that the appellant was aware of the particulars.  However, the appellant relies on the absence of particulars in writing as the alleged breach of s 424A(2). 

5                     The amendment to the Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) which substituted a new subs (2) to s 424A requiring notification in writing came into operation on 10 August 2001.  A question was raised in the present case, which is not necessary to decide for reasons which appear below, as to whether the requirement to notify in writing only operated in respect of applications filed on and from 10 August 2001 and whether it operated retrospectively so as to apply in the circumstances of the present case.  This question was considered by the learned Magistrate, who was of opinion that, on balance, as a consequence of s 8(c) of the Acts Interpretation Act 1901 (Cth) the repeal and modification of the earlier provisions of s 424A(2) did not affect the obligations of the RRT in this case.  It is fair to say that his conclusion on this point was expressed in a somewhat tentative manner.

6                     In the present case the application for review of the delegate’s decision by the RRT was made on 5 April 2001 and the decision of the RRT was given on 31 October 2001 so that at the time when the amendment was made, the application to the RRT had not been determined. 

reasoning on appeal

7                     In written submissions the appellant submits that:

“ … it would have been of benefit to the appellant to have known that the RRT would have had regard to country information relating to economic circumstances in Iran and that it would not have regard, apparently, to the evidence of Mr Davoodi.”

8                     It is also submitted for the appellant that there was no basis for the Magistrate finding that the RRT had substantially complied with s 424A(1)(a) since there was no transcript or other record before the Magistrate to indicate what was said in the proceedings before the RRT.

9                     In oral submissions counsel for the appellant further submitted that the RRT did not comply with s 424A because it did not give particulars to the appellant of information to the effect that it did not accept the evidence of Mr Davoodi, a witness for the appellant, who was said to corroborate the appellant’s evidence.

10                  Apart from the above matters the appellant did not identify or rely on any information said to be relevant and which was not particularised or furnished to him.

11                  The requirement to give particulars under s 424A(1) is expressly made subject to subs (3) which provides that the requirement to give particulars does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant is a member.  In this case the general country information broadly referred to in the submissions is not, in my view, sufficiently specific to satisfy this requirement and therefore it was not information required to be particularised or furnished under s 424A(1).  Country information relating to economic circumstances in Iran is within the exclusion by reason of its generality.  No reference or identification of any information specifically referable to the appellant or his case has been shown to exist on the hearing before me.  Therefore, the particulars of that information are not required to be provided to the appellant by virtue of s 424A(3)(a).

12                  The second matter relied on by the RRT and said not to have been particularised concerns the evidence of Mr Ali Reza Davoodi, a witness said to corroborate the appellant’s case.  His evidence was considered by the RRT and rejected.  The RRT said in relation to this evidence:

“The Tribunal is not satisfied with the evidence … of his witness (at pages seventeen and eighteen above) who does not corroborate his evidence [and whose evidence] is thoroughly unconvincing and inconsistent.”

13                  After discussing, in some detail, the appellant’s evidence, the RRT concluded:

“Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore, the Applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.” (Emphasis added)

14                  Because the evidence of Mr Davoodi, called by the appellant, was given to the RRT on behalf of the appellant for the purpose of the application, it came within the exclusion provided in s 424A(3)(b).  Accordingly, the RRT had no obligation to give particulars of it.  Therefore, the issue concerning the form of particulars does not arise.

15                  The submission for the appellant, in relation to Mr Davoodi’s evidence is not, in substance, that he was unaware of the particulars of the information, but that the RRT did not inform him in writing as to the approach it would take in relation to the evidence of Mr Davoodi.

16                  The RRT did not have any obligation to give information to the appellant, before making its decision, as to its reasoning process or its conclusions in relation to the inconsistency or unconvincing nature of the evidence of Mr Davoodi.  The appellant had called Mr Davoodi and it was for the RRT to accept or reject his evidence or to give it such weight as it thought appropriate.  It cannot be said in any way that the appellant was unaware of the nature and extent of the information.

17                  It is well settled that in reasoning to its conclusion there is no obligation on the RRT to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning.  As the Full Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592:

“The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”  (Emphasis added)

18                  This extract was cited with approval by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [194.]

19                  However, as Gaudron J points out in Miah at [97]:

“… if he or she [the Minister] has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information. Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard.” (Emphasis added)

20                  At [141] in Miah, McHugh J said:

“But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material.  An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status.  The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay.  It is stronger still when the material is equivocal or contains information  that the applicant could not reasonably have expected to be used in the way the delegate uses it.”  (Emphasis added)

21                  The circumstances referred to by their Honours in the above extracts are quite different to those in the present case.  In this case it has not been established that any such information existed or was used by the RRT to the detriment of the appellant which was not made known to him.  The general country information and the evidence of Mr Davoodi were information that the appellant could reasonably have expected to be used in the way in which they were used.  Moreover, there was no evidence of any change of material circumstances since the date of the application.  In addition, s 424A, unlike ss 54 and 56 of the Act which were considered in Miah, operates to exclude information which is not specific to an applicant.  The appellant has failed to establish that there was any information required to be furnished under s 424A which was not particularised.

22                  For the above reasons, I am not satisfied that any obligation to provide particulars of information under s 424A has been enlivened in the present circumstances because no information of the type referred to in the section has been identified.  As a consequence of this conclusion it is not necessary to canvass the contentions as to the retrospective effect of the amendment to s 424A(2) nor the other submissions raised before me as to whether information should have been furnished in writing and that because there were no written particulars given the decision must be set aside.  Because no error has been shown it is not necessary to consider the operation of s 474 of the Act.

23                  In the course of argument Counsel for the appellant referred to the absence of a transcript and suggested that it may have aided his case.  The transcript of the RRT hearing was not before the Magistrate.  In the absence of any identification of any specific information or material which it is said ought to have been given to the appellant in writing I cannot see how the transcript could assist in the appellant’s case.  No application in the present case was made for an adjournment of the proceedings to obtain the transcript.

24                  Accordingly, I dismiss the appeal with costs.

Associate:

Dated:              6 September 2002