FEDERAL COURT OF AUSTRALIA

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744

MIGRATION – Appeal from Federal Magistrate – protection visa – Refugee Review Tribunal (“the RRT”) failed to give appellant particulars in writing – whether information provided by applicant on protection visa application – whether converted to information given by applicant for purpose of application for review by RRT – whether exception in s424A(3)(b) of Migration Act 1958 (Cth) enlivened – whether breach of s424A amounts to jurisdictional error that invalidates decision of RRT

PRACTICE AND PROCEDURE  –  joinder of RRT

Migration Act 1958 (Cth) – s424A

Branir v Owston Nominees Pty Limited (No 2) (2001) 117 FCR 424 referred to

M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 considered

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 applied

NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 291 referred to

NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264 referred to

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 referred to

Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 referred to

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 24 applied

SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393 referred to

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

SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 759 referred to

SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 referred to

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 referred to

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 206 ALR 471 referred to

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 referred to

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL

NSD 471 of 2005

JACOBSON J

23 JUNE 2005

SYDNEY

On Appeal from the Federal Magistrates Court

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The Orders of Scarlett FM made on 10 March 2005 are set aside and in their place order that:-

(a)                there be an order in the nature of certiorari to quash the decision of the RRT handed down on 11 December 2003.

(b)               There be an order in the nature of mandamus requiring the RRT to review according to law the decision made by a delegate of the Minister on 12 March 2003 to refuse a protection visa.

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

On Appeal from the Federal Magistrates Court

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment and orders of Federal Magistrate Scarlett delivered on 10 March 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 11 December 2003.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa.

2                     The only substantial issue which arises on the appeal is whether the RRT was bound to comply with the provisions of s 424A(1) of the Migration Act 1958 (“the Act”) by giving written particulars of certain information which formed part of its reasons.  This issue was not raised by the appellant on the application before the Federal Magistrate or on the appeal.  However, the appellant was unrepresented and the issue was properly and fairly raised before me by Counsel for the appellant as a result of a recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 24 (“SAAP”).

3                     The information which formed part of the RRT’s reasons, and in respect of which the RRT may have been required to give written particulars, was a statement made by the appellant in answer to a question in his form of application for a protection visa.  The RRT referred to an inconsistency between the answer to the question and the appellant’s oral evidence to the RRT as one of the reasons for rejecting his claim to have a well-founded fear of persecution. 

4                     The RRT put this inconsistency to the appellant orally in the course of the hearing.  Accordingly, there can be no question of a failure to comply with any common law duty of procedural fairness.  However, the suggestion that no breach of s 424A occurs if an applicant has otherwise been given procedural fairness was rejected by a majority of the Justices in SAAP.  Their Honours pointed to the imperative nature of the section and the mandatory obligation to provide written particulars of adverse material as well as an opportunity to comment on it.

5                     The Minister’s counsel submitted that in the present case the obligation to give particulars under s 424A(1) was not enlivened because the information, namely the answer to the question in the protection visa application, was given by the applicant for the purpose of the application for review by the RRT.  Thus, it was submitted that the information fell within the exception in s 424(3)(b) of the Act.

6                     In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”), a Full Court held that the information to which s 424A(3)(b) refers is information given by an applicant to the RRT for the purpose of the application for review, and not to information given on the original application for a protection visa; see at [17] per Ryan and Conti JJ; [35] per Merkel J.  Al Shamry has been followed by other Full Courts; see SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393 at [33] per Tamberlin, Mansfield and Jacobson JJ and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 206 ALR 471 (“VAF”)  at [18] – [22] per Stone and Finn JJ.

7                     It would seem to follow from Al Shamry that the information in this particular case does not fall within the exception in s 424A(3)(b).  Nevertheless, Counsel for the Minister sought to distinguish Al Shamry  because, here, the appellant had referred to the protection visa application form when asked about it by the RRT and had said that the information in it was true and correct. 

8                     Counsel for the Minister relied upon a decision of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (“M55”) .  M55 is authority for the proposition that where an applicant expressly relies upon the terms of the protection visa application in the application for review by the RRT, the information assumes the character of information given for the purpose of the application for review under s 424A(3)(b).

The RRT’s Decision

9                     The appellant is a citizen of India.  He is of the Muslim religion.  He claims to have a well-founded fear of persecution, apparently on political grounds, by reason of his activities and membership of the Madras Rotary Club (“MRC”).  He claimed that, through his membership of the MRC, he had caused embarrassment to local political figures by seeking financial assistance for poor people.  He claimed that these activities had led him to be arrested, detained, tortured and convicted of an offence under Indian law. 

10                  The appellant also claimed that he was a member of the Communist Party of India.  This seems to have been put forward as a part of his primary claim that he had been persecuted as a result of his activities with the MRC.

11                  The RRT recorded that the appellant gave oral evidence on 6 November 2003.  It referred to his evidence about the protection visa application in the following passage:-

“The Tribunal noted that the Statutory Declaration on 10 February 2003 is written in English and that the applicant is not fluent in English.  The Tribunal asked the applicant how this document and Forms B and C of the protection visa application were prepared.  The applicant said that a friend of his assisted him.  The applicant said that the friend went through the questions in Forms B and C and asked the applicant for his responses.  The friend filled in the forms.  The applicant said “I have filled the forms correctly’ and confirmed that the information contained in the forms is true and correct.”

12                  The appellant relied on two principal claims before the RRT.  The first was that he said that he and other members of the MRC were attacked and beaten at the MRC’s premises in December 1999.  The second was that he claimed to have been arrested on 18 February 2000 and charged and convicted under the “anti-conversion” law.

13                  The RRT put to the appellant that his claim to have been convicted of an offence was inconsistent with what he said in his protection visa application.  The RRT said:-

“The Tribunal put to the applicant that his response to question 6 of Form B is then incorrect.  The Tribunal noted that the applicant had replied ‘No’ to the question ‘Has any person named in question 1, ever, been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?’  The Tribunal explained to the applicant that if he was charged and convicted under a law that has a general application, then that would not constitute persecution.  Further, the Tribunal put the applicant on notice that the inconsistency in the information that he has provided could mean that the Tribunal might find that this claim was fabricated.  The applicant said he had told the truth but the problem is as a result of ‘translation’.”

14                  In coming to its findings the RRT expressed doubts as to whether the appellant was a member of the MRC but it proceeded on the assumption that he was.  It was also prepared to assume he assisted poor people.

15                  However, the RRT rejected the appellant’s claim that he had approached leading political figures at their homes and that he had been targeted as a consequence.  The RRT therefore rejected the appellant’s claim to have been beaten at the MRC’s premises in December 1999.  The RRT said, for the same reason, it did not accept the appellant’s claim that he was arrested on 18 February 2000 and charged and convicted.  Nor did it accept his claim to have been tortured.

16                  The RRT gave a further reason for rejecting the applicant’s claim that he was convicted of an offence.  It said:-

‘As previously alluded to, the Tribunal noted the applicant’s response to question 6 of Form B, namely “No” to the question “Has any person named in question 1, ever, been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?”.  The Tribunal asked the applicant to explain the inconsistency and he said it is a result of “translation”.  The Tribunal is not persuaded by this explanation given the applicant’s earlier evidence that all the information contained in Forms B and C, is true and correct.’

17                  The RRT also rejected the appellant’s other claims including his claim to have been a member of the Communist Party of India.  It regarded this as a peripheral claim.  It rejected a claim of anti-Muslim violence as a ground of persecution on the basis of independent country information.

18                  Accordingly, the RRT was not satisfied that the appellant is a person to whom Australia owes protection obligations under the Convention.

The Federal Magistrate’s Decision

19                  Only two substantial grounds of review were relied upon by the appellant.

20                  The first ground was that the RRT “ignored relevant considerations” which were said to have been made relevant by s 424 of the Act, namely that independent country information suggested that there were incidents of anti-Muslim violence in India.

21                  The second was that the RRT was said to have failed to give reasons for its decision in a written statement in compliance with s 430 of the Act.

22                  The learned Magistrate rejected the first ground because he came to the view that the RRT had taken the country information into account.

23                  His Honour rejected the second ground because he was of the view that RRT had provided a written decision which set out the reasons for the decision, the relevant findings of material fact and references to the evidence on which the findings were based.

Joinder of the RRT

24                  In SAAP a majority of the Court observed that where relief is sought under s 39B of the Judiciary Act 1903 (Cth), it is necessary to join the RRT as a party to the proceedings; McHugh J at [43], Gummow J at [91], Kirby J at [153] and Hayne J at [180].  See the comments of the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [84] and SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 759 at [5] (Branson J).

25                  Accordingly, the Minister’s Counsel sought leave to join the RRT as a second respondent to the proceedings.  He informed me that his instructing solicitor had instructions to enter a submitting appearance on behalf of the RRT.  He undertook, on his solicitor’s behalf to enter such an appearance within the next few days.  I therefore made the appropriate order adding the RRT as a respondent.

Discussion

26                  There is no error in the Magistrate’s reasons.  The question which arises is, as I have said, whether the RRT was bound to give particulars under s 424A in accordance with the majority view in SAAP.  Since this point was raised by the Minister I do not need to consider the question of whether I ought to grant leave to raise it on the appeal; cf Branir v Owston Nominees Pty Limited (No 2) (2001) 117 FCR 424 at [34] – [38] per Allsop J.

27                  In any event, I am satisfied that the point has “clear merit” as a result of the views of the majority in SAAP; see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] – [48].

28                  The Minister did not contend that the information in the form of the answer to question 6 in the protection visa application and its inconsistency with the appellant’s oral evidence was not “information” for the purpose of s 424A(1).

29                  Nor did the Minister contend that the information was not a reason of part of the reason for the RRT's affirming the decision of the delegate.  In any event, it is clear that when the RRT’s reasons are evaluated to determine the application of s 424A(1), the inconsistency between the answer to question 6 and the appellant’s oral evidence was an integral part of the RRT’s reasons; see VAF at [29] per Finn and Stone JJ; see also NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264 at [114] – [116] per Merkel and Hely JJ.

30                  It is also plain from what the majority justices said in SAAP that s 424A(1) was enlivened unless the information fell within the exception in s 424A(3)(b); see McHugh J at [68]; Kirby J at [184] – [185]; Hayne J at [208]. 

31                  NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 291 (“NAHV”) was authority for the proposition that failure to observe the requirements of s 424A(2) do not amount to jurisdictional error where there was no unfairness or failure to accord procedural fairness.  In SAAP, McHugh J said at [77] that the decision of a Full Court in NAHV “should not be accepted”.  Kirby J and Hayne J did not expressly overrule NAHV but this must be taken to be the effect of their reasons; see SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 at [45] (Sackville J)

32                  In Al Shamry Ryan and Conti JJ said at [17] that the word “applicant” in s 424A means an applicant for review by the RRT of a Ministerial decision and “application” has a corresponding meaning.  Their Honours, at [20], agreed with Merkel J that the beneficial nature of the provision, and a purposive approach to it, supported the interpretation given by Madgwick J as the primary Judge.  Madgwick J’s reasons were set out in detail by the Full Court at [9].  His Honour said that s 424A required that applicants be provided with all adverse information “relevant to the claim that they have not themselves provided in connection with the current review application before the RRT”. (emphasis added).

33                  Merkel J said at [40] that:-

‘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. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, 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 of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-63.’

34                  It follows from what was said by the judges in Al Shamry that, examined in isolation, the answer to question 6 on the protection visa application was not information that the appellant gave for the purpose of the application for review by the RRT.  Thus, the exception in s 424A(3)(b) is not enlivened unless it can be said that the appellant’s evidence in the RRT somehow converted the information supplied to the Department to information which the appellant gave to the RRT for the purpose of the application.

35                  The Minister called to aid a passage at [25] from the judgment of Gray J in M55 to support the submission that the protection visa information changed its status so as to fall within the s 424A(3)(b) exception.  The passage is as follows:-

‘That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal´s obligations pursuant to s 424A(1) and (2).’

36                  Gray J’s approach appears to draw comfort from what was said by their Honours in Al Shamry.  If applicants for review by the RRT themselves put forward to the RRT information taken from the protection visa application then such information is “information… that the applicant gave for the purpose of the application” in the RRT.  It then falls within the exception in s 424A(3)(b).  Such information would be information “the significance of which the applicant may be unaware”; per Merkel J at [40].

37                  Thus, on Gray J’s approach information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the RRT falls within the exception in s 424A(3)(b).  In effect it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information.

38                  There was no transcript of the RRT hearing in evidence.  Counsel for the Minister submitted that the proper course was to determine the question by reference to what was contained in the RRT’s reasons.

39                  In my view it cannot be said that the appellant himself provided the information in the protection visa to the RRT as part of his application.  The passage set out at [11]indicates that the RRT raised the issue of the protection visa application form and the answers contained in it during questions asked of the applicant in the course of the hearing.  The RRT then put the inconsistency in the information to the appellant as a possible basis for a finding that the claim had been fabricated; see the passage at [13]. 

40                  It follows in my opinion that the exception contained in s424A(3)(b) was not enlivened.

41                  Counsel for the Minister did not argue that if there was a breach of s 424A(1), compliance with the obligations could not have made any difference to the outcome; see Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [131] – [132]  per Kirby J; see also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.  Nor was it submitted that there were discretionary grounds for refusing relief.

Conclusion and Orders

42                  It follows in my view that the appeal must be allowed.  This follows inexorably from the reasons of the majority justices in SAAP.  Accordingly, the orders I will make are as follows:-

            (1) Appeal allowed.

(3)   Set aside the Orders of Scarlett FM made on 10 March 2005 and, in their place order that:-

(a)                there be an order in the nature of certiorari to quash the decision of the RRT handed down on 11 December 2003.

(b)               There be an order in the nature of mandamus requiring the RRT to review according to law the decision made by a delegate of the Minister on 12 March 2003 to refuse a protection visa.

Associate:

Dated:              23 June 2005