FEDERAL COURT OF AUSTRALIA

SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 317

IMMIGRATION – jurisdictional error – s 424A Migration Act 1958 (Cth) –procedural fairness – whether s424A removes obligation to afford procedural fairness at common law – failure to draw country information to the applicant’s attention – information in the public domain where it is critical to determining an applicant’s life or liberty.

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited

Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Miah (2001) 206 CLR 57 cited

Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 cited

WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 distinguished

VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 followed

WAEJ v Minister for Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 188 followed

NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 cited

Re Minister for Immigration & Multicultural Affairs, Ex Parte Cassim (2000) 74 ALJR 1404 distinguished

Business World Computers v Telecom (1988) 82 ALR 499 cited

Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 cited

Stead v State Government Insurance Commission (1986) 161 CLR 141 cited

SZAGF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N2196 OF 2003

HILL J

26 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed and the decision of the Tribunal be quashed.
2. The matter be remitted to the Tribunal to be heard by the Tribunal, differently constituted and according to law.
3. The Minister pay the Appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The Applicant, who is a citizen of Yugoslavia, applied for a protection (class XA) visa on 10 August 2001. On 30 January 2002, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (the “delegate”) refused to grant to him a protection visa, and on 26 February 2002, the Applicant applied for a review by the Refugee Review Tribunal (the “Tribunal”) of that decision. On 6 March 2003, the Tribunal handed down its decision affirming the decision of the delegate not to grant a protection visa. The Applicant now seeks Judicial Review of the Tribunal’s decision under s 39B of the Judiciary Act 1903.

The Applicant’s claims in the Tribunal

2                     The Applicant, being of Serbian ethnicity and Christian religion, claimed that he was a supporter of Mr Slobodan Milosevic, the former President of Yugoslavia. He claimed that his father, during the currency of Mr Milosevic’s leadership, had been a senior member of the Serbian police force, and then Consul General for Yugoslavia to Australia from March/April 2000. Whilst his father was Consul General, it appears that the Applicant completed 3 semesters of banking and finance at the University of Technology Sydney (“UTS”), and that his brother is presently studying at UTS.

3                     The Applicant also claimed that during the period in which he attended High School (early 1990’s), he assisted his father by becoming a police informer. He claimed that he assisted in placing nearly 40 people who opposed the government of Serbia in jail. Most of the offences that he reported concerned destruction of property, demonstrating illegally, violence and beatings.

4                     On 15 September 2000, the Applicant returned to Yugoslavia to assist, he claims, in Mr Milosevic’s election campaign. Mr Milosevic lost those elections on 24 September 2000, and the impact of the resulting change in government is the source of the Applicant’s claim that he has a well-founded fear of persecution.

5                     The Applicant claims that after Mr Milosevic lost the election, two of his friends were killed, one of whom worked in Belgrade, and the other being some one who had worked for the police in capturing both criminals and persons opposed to the former government. He claims that people involved with the present government in Serbia carried out the latter murder. It was also claimed that his driving luxury cars caused resentment and jealousy on the part of his friends. In particular, the Applicant claimed that some people wanted favours from him (due to the perception that his father was rich), and this included dealing in cigarettes in the black market. The Applicant claimed that he refused to be involved in black market cigarettes, and as a result, this caused some resentment from those people. It is noted that the Applicant may have been involved in the black market in more minor ways.

6                     In particular, the Applicant claims that on 5 October 2000, he received a call at night informing him that some people were seeking to kill him. As a result, he went into hiding in Panlcevo near Belgrade. It was noted by the Applicant that he was unable to receive protection because the former police and other Milosevic supporters were also in hiding. Between this time and 10 January 2001, it appears that the Applicant must have travelled to Australia, because the evidence shows that he returned to Yugoslavia on 10 January 2001. The Applicant’s explanation for this was that he wanted to apply for a student visa to Australia without doing anything improper or illegal. The Australian Embassy in Serbia rejected his application for a student visa. Between 10 January 2001 and 10 August 2001 the Applicant returned to Australia. As already noted he applied for a protection visa on 10 August 2001.

7                     The Applicant claims that if he were to return to Serbia he would be killed because he is a well known member of Mr Milosevic’s party and was very hated. He also claimed that he would not be safe elsewhere in Serbia or Montenegro, because his name is well known and Serbia is not a large country. It was also noted by the Applicant that although his father had chosen to return to Serbia, he was not finding life easy there.

The decision of the Tribunal

8                     In its written reasons for decision, the Tribunal referred to independent country information concerning Yugoslavia from three sources, namely the US State Department Country Reports on Human Rights Practices in 2000 for Yugoslavia, the US State Department Country Reports on Human Rights Practices in 2001 for Yugoslavia, the Human Rights Watch World Report 2002 for the Federal Republic of Yugoslavia, and a BBC news online report titled “Yugoslavia consigned to history” and dated 4 February 2003. It is noted that this information is readily available on the internet.

9                     The 2000 US State Department Report contained information concerning the change of government in Yugoslavia in 2000 and the ability of conscientious objectors to the draft to travel freely without fear of arrest. The 2001 US State Department Report similarly contained information in respect of the September 2000 elections and the resulting change in government in Yugoslavia. It also set out details relating to the surrendering of Mr Milosevic to the ICTY in the Hague. The Human Rights Watch World Report asserts that the political opposition in Serbia can openly express its views and operate free of government harassment. It also notes that although former “Milosevic cronies” have been the subject of criminal investigation, only one case has proceeded to trial. Finally, the BBC news report concerned the change in government in Yugoslavia in 2000 and the resulting dissolution of Yugoslavia (forming Serbia and Montenegro).

10                  The Tribunal accepted the Applicant’s claims that he was Serbian, that his father had been a senior member of the Police Force and Consul General to Australia, that he had been a member of the Socialist Party and that under the Milosevic regime, he had been in a very “privileged” position, driving luxury cars and “living the high life”. In view of the independent country information, particularly that “the political opposition in Serbia could openly express its views and operate free of government harassment” (at 21 of the reasons), the Tribunal was not satisfied that the Applicant’s membership of the Socialist Party, support for Milosevic and privileged lifestyle created a real chance of persecution for a convention reason.

11                  The Tribunal also accepted that the Applicant had been a police informer during the period when his father had been a senior member of the Serbian Police Force. However, the Tribunal doubted that this gave rise to a real fear of persecution, now that the Milosevic regime had fallen, particularly in view of its finding that the Applicant was prone to exaggeration, the current government were not exacting retribution upon former Milosevic supporters, his father had not been subject to serious harm upon his return, and that the Applicant had been willing to return to Yugoslavia on 10 January 2001.

12                  As to the Applicant’s potential involvement with the black market, the Tribunal concluded that in any case, any fear of persecution flowing from this would not be Convention related.

13                  Finally, it was noted by the Tribunal that in the Applicant’s interview with an officer from the Department of Immigration & Multicultural & Indigenous Affairs on 25 September 2001, he had been asked about charges in Yugoslavia against him relating to unpaid debts. The Applicant’s response was that he had no knowledge of this, and indeed a similar response was made when the issue was put to him by the Tribunal. None-the-less, in the event that the Applicant did return to Yugoslavia to face these or other charges, the Tribunal concluded that since the rule of law was now applied in Yugoslavia, the Applicant would receive a fair trial and not be subject to Convention related persecution. It should be noted at this point that the Applicant was never provided with the documentary evidence of these charges, and that the Applicant never raised these charges in his submissions.

14                  In the light of these findings, the Tribunal concluded that the Applicant did not have a well-founded fear of persecution under the Convention. Accordingly, it affirmed the delegate’s decision and refused the grant of a protection visa.

The Applicant’s grounds for review in the Federal Court

15                 In the Applicant’s Amended Application dated 17 November 2003, the Applicant relied upon three matters as establishing jurisdictional error, namely:

(1)   That the Refugee Review Tribunal in conducting the review hearing, breached the requirements of the rules of procedural fairness and/or the natural justice hearing rule in that in making a finding as to the credibility of the Applicant, it took into account independent country information without giving the applicant particulars of the substance of this country information, and the opportunity to comment on it.

(2)   That the Refugee Review Tribunal in conducting the review hearing, breached the requirements of the rules of procedural fairness and/or the natural justice in that, in making a finding as to whether or not the applicant has a well founded fear of serious harm amounting to persecution for a Convention Reason by virtue of his having acted as a police informer and by reason of his close association with the police, took into account independent country information, without giving the applicant the particulars if the substance if this country information, and the opportunity to comment on it.

(3)   That the Refugee Review Tribunal in conducting the review hearing did not comply with an essential statutory requirement for the conduct of the review hearing, that being section 424A of the Migration Act 1958, and in doing so, breached the requirements of the rules of procedural fairness and/or the natural justice hearing rule in that, in making a finding that any charges which the applicant may be facing in Yugoslavia do not provide a reason to believe that the Applicant would be subject to serious harm amounting to persecution for a Convention reason, the Tribunal did not give to the applicant by one of the other methods specified in 441A of the said Act, particulars of information that the tribunal considered would be part of a reason for affirming the decision under review and did not ensure, as far as is reason the practicable, that the Applicant understood why that information was relevant to the Review, and did not invite the Applicant to comment on it.

Procedural matters at the hearing before me

16                  First it should be noted that the Applicant filed his application in the Tribunal on 26 February 2002. Accordingly s 422B of the Act which provides that natural justice will not be applicable to certain matters has no application to the operation of s 424A in this case.

17                  Also at the hearing, Counsel for the Applicant sought leave to file in court and have read an affidavit of Igor Pandza made on 5 March 2004 (the day of the hearing). The affidavit essentially sought to set out the information that the Applicant would have presented to the Tribunal, had the Country Information been put to him. Counsel for Respondent objected to the affidavit being read on the basis that his client would suffer prejudice at this stage if the affidavit were read as he would not adequately be prepared to cross-examine upon it. He objected also that the affidavit was irrelevant. Ultimately the affidavit was read by consent on the basis that it was not evidence of the truth of various factual matters referred to in it.

18                  Finally, Counsel for the Applicant tendered a tape of an excerpt of the Applicant’s interview with the delegate on 12 December 2001, along with a typed transcript of that interview. The tape and the transcript were marked as Exhibit 2, although the Respondents were given leave to raise any inconsistency between the tape and the transcript within 7 days. A copy of the transcript of the hearing before the Tribunal was also accepted into evidence. No suggestion has been raised that the tape and transcript are at least relevantly different.

Appeal grounds 1 and 2: failure to provide country information to the Applicant

19                  Counsel for the Applicant submitted that the failure of the Tribunal to provide him with copies of the independent country information on which it relied, and the failure to then provide to him an opportunity to respond to such information, constituted a denial of procedural fairness.

20                  It is not in dispute that s 474 of the Act which purports to exclude the jurisdiction of the Court to review a privative clause decision will only so operate if the decision of the Tribunal is actually a decision made within jurisdiction. A decision founded on jurisdictional error (for example one where procedural fairness was denied) is not a privative clause decision and is thus properly the subject of review by the Court: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 500 (per Gaudron, McHugh, Gummow, Kirby & Hayne JJ); Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Miah (2001) 206 CLR 57 at 87 (per Gaudron J); Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 at 101. In Re Refugee Tribunal; Ex Parte Aala, Gaudron & Gummow (at 101, with whom Gleeson CJ agreed, and see too Kirby J at 131 and Hayne J at 143) said:

“if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution”.

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.

21                  There is some conflict in decisions of this Court as to whether s 424A on its proper construction limits the content of procedural fairness so that it is not open to the Court to find a breach of procedural fairness where the Tribunal fails to alert an applicant before it that it proposes to take into account country information which is adverse to the applicant but that country information falls within s 424A(3). In WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409, a Full Court of this Court comprising Wilcox, Nicholson & Downes JJ at [36] said:

“s 424A must be treated as an exhaustive statement of the Tribunal’s obligation to bring information to the attention of a visa applicant, overriding any wider common law obligation”.

If this view is correct, then the Applicant in this case must fail under grounds 1 and 2, because the independent country information clearly falls within the exception in subsection 3. That is, it is information that is not specifically about the applicant but rather it is about a class of persons of which the applicant is a member. A similar conclusion was reached in respect of country information regarding the issue of passports to Afghans (at para 20) in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74.

22                  On the other hand there are decisions of another Full Court of this Court which take a contrary view of s 424A’s effect upon natural justice. Thus in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs, North, Merkel & Weinberg JJ stated (at para 30), on the basis of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Miah, but without consideration of WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs, that “the presence of a provision such as s 424A does not, of itself, preclude the continued existence of the common law requirements of natural justice”.

23                  The issue in Miah was whether a similar scheme in the Act (namely ss 56 and 57) excluded procedural fairness at common law. The majority (Gaudron J, McHugh J and Kirby J) concluded that the statutory scheme did not achieve this end. Gleeson CJ & Hayne J dissented. McHugh J’s in that case said (at 93):

“It is now settled that, when a statute confers on a public official the power to do something which affects a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power ‘unless they are excluded by plain words of necessary intendment.’”

In his Honour’s view, the words of the section were not plain words of exclusion. The language of the section was permissive, not mandatory. In VAAC, the Court took a similar view of s 424A, deciding that the language used did not operate to exclude procedural fairness expressly or by necessary implication. The court then proceeded to consider whether there had been a denial of procedural fairness in not giving the applicant an opportunity to comment upon country information.

24                  In WAEJ v Minister for Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 188, another case in which the Tribunal relied upon country information without giving the applicant an opportunity to comment, Lee, Hill & Marshall JJ likewise decided upon the basis of Miah that “the Act was not to be read as an exhaustive code that excluded obligations of procedural fairness” (at para 39). WAAJ was distinguished because it was concerned only with a failure to comply with s 424A, and not with procedural fairness at common law (at para 38). It must be said that while it is true that procedural fairness was not a ground of appeal in WAAJ, the issue was mentioned in oral argument, and the Court addressed it (at para 36). Accordingly, the view put in WAAJ was obiter dicta (as noted by the Full Federal Court in NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at 506). The interpretation of s 424A in WAEJ is, in my view, binding upon me as a single judge. I am also of the view that it is the correct view.

25                  It is necessary now to consider whether the Applicant was in fact denied procedural fairness on the facts of the present case because he was not given an opportunity to comment upon the country information that the Tribunal used in making its decision.

26                  In VAAC, North, Merkel & Weinberg JJ stated the applicable rule of procedural fairness as follows (at para 27):

“It is well established that the rules of natural justice require that a decision-maker bring to the applicant’s attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587.”

In that case, independent country information relating to the ability of Afghans to obtain passports was the reason for the Tribunal to affirm the delegate’s decision to refuse a protection visa, because it meant that the applicant could return to India where he would be safe (at para 28). Accordingly, it was held that procedural fairness had been denied.

27                  Similarly in WAEJ, the Tribunal relied upon independent country information to show that only high profile demonstrators, of whom the applicant in that case admitted he was not one, interested the Iranian authorities (see para 32). This meant that in the Tribunal’s view, the applicant did not have a well-founded fear of persecution. The failure on the part of the Tribunal to put such country information to the applicant in that case involved, in the view of the Court, a denial of procedural fairness.

28                  Counsel for the Respondent relied upon a decision of McHugh J in Re Minister for Immigration & Multicultural Affairs, Ex Parte Cassim (2000) 74 ALJR 1404 (at 1407-8) in support of a submission that procedural fairness at common law does not require information in the public domain, or which the Applicant should have been aware of, to be raised with the Applicant. That decision, being a decision of a single judge of the High Court is not binding upon me although I would obviously treat it with great respect: Business World Computers v Telecom (1988) 82 ALR 499 at 504 (per Gummow J); Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 224 (per Hill J). His Honour’s conclusion in that case was given against the background that the Tribunal had relied upon a document that had been contained in an extract sent from applicant’s solicitor. It is difficult to see any unfairness in a case where an applicant, who is represented, is actually fully aware of the information that was relied upon, because in that event, the applicant has had an opportunity to make submissions in respect of the relevant information.

29                  Here there is no suggestion that the Applicant was aware of the relevant country reports. Furthermore, whilst there is certainly an interest in not burdening administrative decision makers to the point that they must give to an Applicant any conceivable background fact or piece of information upon which they rely, there is also a more significant interest in affording persons, where their interests, and often their lives are significantly affected, to have a full opportunity to answer the case that is against them. Ordinarily, information that is in the public domain or that an applicant should be aware of will not need to be drawn to a person’s attention. Notwithstanding this however, information that is in the public domain is often difficult to locate. It is inevitable that such information may well be overlooked, particularly by those whose English may be poor, or who are illiterate or semi-literate or also lack computer skills or access to computers. This will particularly be so if an applicant is in detention and deprived of ready access to library facilities or technology. I should note here that the Applicant is not in detention and it may be assumed since he has studied here that he is fluent in English. When information is critical to determining a person’s rights and the applicant has little understanding of the administrative process, information adverse to them must be drawn to that person’s attention, with an opportunity to comment. Particularly this will be significant where the applicant is seeking to satisfy the Tribunal that he or she is a person who has a well-founded fear of persecution if returned to his or her country of nationality. Without that opportunity there will be no fairness and the procedure adopted will be outside jurisdiction and thus void.

30                  The tribunal in this case relied upon independent country evidence in two ways. First, the country information enabled the Tribunal to find that there was little government reaction against Socialist Party members or former Milosevic supporters, and that as a result, the Applicant did not have a well-founded fear of persecution for a Convention reason by reason of his being a member of that party and a former Milosevic supporter. Secondly, the independent country information enabled the Tribunal to conclude that there was “no sign of retribution by the new government against former Milosevic supporters or those involved in such activities” (at 23 of the Tribunal’s reasons) - those activities being police informing. This formed part of the Tribunal’s conclusion that the Applicant did not have a well founded fear of persecution for a convention reason by reason of his having been a police informer under the Milosevic regime. In my view, it is clear that the country information was a critical factor in the Tribunal’s decision. Indeed it was the only evidence that was adverse to the Applicant and was used to counter his claims of a well-founded fear of persecution. Accordingly, the Applicant has been denied procedural fairness.

31                  It was submitted that the matter should not be remitted to the Tribunal for reconsideration because the present was a case where provision of the country information to the Applicant “could not possibly have produced a different result”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. At the hearing, the Applicant was given leave to file an affidavit in which he asserted that he would have led evidence to counter the conclusions of the independent country reports. Without making a finding as to the truth of the matters he raised in that affidavit, the fact that he might have been able to present evidence contrary to the country reports means that it is conceivable, and not beyond the realm of possibility, that giving the country reports to the applicant could have made a difference to the outcome. It follows in my view that the matter should be remitted to the Tribunal to be decided in accordance with law.

Appeal ground 3: the charges relating to a debt in Yugoslavia

32                  This ground was only argued on the basis that there was a breach of the Tribunal’s obligations under s 424A when it failed to provide to the Applicant particulars of the charges levied against him in Yugoslavia. The matter was not argued on the ground of natural justice. Accordingly, my comments in respect of this ground are limited to the statutory obligation under s 424A.

33                  Quite clearly, information concerning charges that the Applicant may or may not be facing is specific to the Applicant, and does not come within the exception provided in s 424A(3). This means that the Tribunal would have had an obligation to 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. If the Tribunal had utilised the information adversely to the applicant, for example, to bolster a finding as to the Applicant’s lack of credibility, then it might be said that the information was at the very least a part of the reason for affirming the delegate’s decision. However, the Tribunal utilised the information in an almost positive fashion from the point of view of the Applicant, because it only referred to it briefly to consider whether the charges themselves would found a well-founded fear of persecution. That is, the information was not used as part of the reason for affirming the decision. Rather, it was used to test an argument not advanced by the Applicant but favourable to the Tribunal rejected the argument by relying on country information which suggested that the rule of law now applied in Yugoslavia (see p25 of the Tribunal’s reasons), meaning thereby that the Applicant would likely receive a fair trial there. Accordingly, there was no breach of s 424A by the Tribunal in failing to give the Applicant particulars of the charges allegedly brought against him.

Conclusion

34                  For the foregoing reasons I would quash the decision of the Tribunal and direct that the matter be remitted to the Tribunal to be heard again by the Tribunal differently constituted and in accordance with law. The Minister is ordered to pay the Applicant’s costs of the Appeal.

Associate:

Dated: 26 March 2004