FEDERAL COURT OF AUSTRALIA

S266/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 651

MIGRATION – Ministerial delegate refused protection visa to applicant – decision affirmed by Refugee Review Tribunal – application for order nisi – s 424A of the Migration Act 1958 (Cth) – claim that Refugee Review Tribunal did not have before it, and did not consider, the Part B documents referred to by the delegate

Held: the Refugee Review Tribunal did not err in law by (a) contravening s 424A of the Migration Act 1958 (Cth) or (b) failing to consider the Part B documents referred to in the decision of the delegate

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) s 424A

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

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

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 referred to

SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 referred to

SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 referred to

S266/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL AND PATRICK BURGESS, MEMBER, REFUGEE REVIEW TRIBUNAL

NSD 2491 OF 2003

TAMBERLIN J

SYDNEY

30 MAY 2006

THE COURT ORDERS THAT:

1.                  The application for an order nisi be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     On 30 April 1999, the Refugee Review Tribunal (“the Tribunal”) affirmed a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) on 3 June 1998 not to grant the applicant a protection visa under the Migration Act 1958 (Cth).

2                     The applicant filed an application for an order nisi in the High Court of Australia on 4 June 2003 requesting the respondents to show cause why constitutional writs should not be issued in respect of the decision of the Tribunal.  The applicant supported his application for an order nisi by an affidavit of Mr Sam Issa, solicitor for the applicant, sworn on 21 May 2003.

3                     The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal (2002) 190 ALR 601.

4                     By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing.  The applicant was invited to file written submissions on the question of whether the Court should make an order nisi.  On 7 December 2004, the applicant filed an amended application under the Judiciary Act 1903 (Cth), however, he has not filed any written submissions.

5                     I propose to deal with this application on the papers.

background

6                     The applicant is a citizen of Lebanon and arrived in Australia on 27 August 1996.  He claims a well-founded fear of persecution if returned to Lebanon.  The basis for this claim is the applicant’s statement that his truck was used to support General Michel Aoun against the Syrian and Lebanese authorities.

7                     The applicant did not attend the hearing before the Tribunal.  Therefore, in making a determination, the Tribunal had before it only the information contained in the written material, comprising the files of the Department and the Tribunal relating to the application and information that the Tribunal had obtained from independent sources about matters referred to in the application.  The applicant’s claims were set out in written submissions to the Department and written submissions to the Tribunal.

8                     In its reasons for decision at pages 4-5, the Tribunal notes that the applicant has only made bare claims about some kind of involvement with supporters of General Aoun and the use of his truck.  The Tribunal notes that the applicant has not provided details of the history of his involvement, what has happened to him as a result of any alleged persecution, what his family or domestic circumstances are and whether any threats are ongoing.  The Tribunal says that in order to be satisfied that the applicant has a well-founded fear of persecution for a Convention reason, it requires details of the actual persons whom he claims will harm him, why they would do so in the future and the nature of the harm he claims to fear.  The Tribunal says that it also needs further information concerning the viability of the applicant’s relocation within Lebanon.

9                     On the basis of the lack of detail in the written evidence, the Tribunal said that it was in a position where it was unable to establish the relevant facts.  Accordingly, the Tribunal was not satisfied that the applicant has fears of returning to his country, whether these are well-founded and whether they are based on a Convention reason.

discussion

10                  In the amended application filed on 7 December 2004, the applicant claims that the Tribunal’s decision was affected by an error of law because the Tribunal failed to properly discharge its obligations by putting to the applicant important information that it had obtained from independent sources.  The applicant says that if the Tribunal had put to him in writing the information on which it relied to make its decision, he would have provided a written response.  The applicant does not give any particulars in the amended application of precisely what information the Tribunal failed to put to him.

11                  By letter dated 21 January 1999, the Tribunal wrote to the applicant advising that it had considered all the papers relating to the application but was unable to make a favourable decision on that information alone.  The applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims.  The applicant advised the Tribunal that he wanted to give oral evidence and, on 4 February 1999, the Tribunal wrote to the applicant advising that the hearing would be held on 20 April 1999.  This letter advised the applicant that if he did not attend the hearing and a postponement was not granted, the Tribunal would assume that he no longer wanted to come to the hearing and that a decision could then be made without further notice to him.  The applicant did not attend the hearing before the Tribunal or contact the Tribunal to explain his failure to attend.

12                  Section 424A(1) is in the following terms:

            Applicant must be given certain information

            (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.

13                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, a majority of the High Court said that any failure whatever to comply with s 424A of the Migration Act 1958 (Cth), regardless of any conclusion of fact one could reach from the surrounding circumstances that the applicant had been accorded substantive procedural fairness, amounted to jurisdictional error vitiating the decision.

14                  Subsection 424A(3)(b) provides that s 424A does not apply to information “that the applicant gave for the purposes of the application”.  In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, a Full Court held that information to which ss 424A(3)(b) refers is information given by an applicant to the Tribunal for the purpose of the application for review and not to information given on the original application for a protection visa. 

15                  The reference to “information” in s 424A does not encompass a failure to mention a matter to the Tribunal.  An observation that an applicant failed to refer to a particular matter may constitute no more than an aspect of the Tribunal’s reasoning concerning a deficiency in his evidence.  In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], Finn and Stone JJ commented on the term “information”:

“ … the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps.”

See also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [9]-[15] per Hely J; SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [14]-[33] per Bennett J.

16                  In its decision, the Tribunal, in effect, states that the applicant has provided little detail in support of his claims and then goes on to identify a number of aspects of the applicant’s claims in regards to which the Tribunal required further information.  In the absence of this information, the Tribunal said that it was in a position where it was unable to establish the relevant facts.  According to the above authorities, the Tribunal’s reference to the lack of detail in the applicant’s written evidence and the examples that it provides of the deficiencies are not “information” that are required to be given to the applicant for comment under s 424A.

17                  A further ground of review is outlined in the applicant’s application to the High Court for an order nisi.  The applicant claims that the Tribunal misled him into believing that it had looked at all the papers relevant to his application, including the Part B documents, when in fact it had not done so and therefore he was denied an opportunity to bring the documents that favoured his application to the attention of the Tribunal.  The applicant says in the application that particulars of the relevant documents will be supplied to the Court. However, this has not been done.  The supporting affidavit of Mr Sam Issa filed on 4 June 2003 merely asserts that the justification for the order nisi is that the impugned decision is manifestly invalid and the Applicant’s life is demonstrably at risk.  These assertions have not been made good.

18                  This claim in form may be prima facie capable of attracting relief under the second limb of the Muin ratio decidendi, that is, that the applicant was misled into thinking that favourable country information had been considered by the Tribunal when in fact it had not.  However, the material contained in the draft order nisi and the affidavit in support merely amounts to a pleading or assertion of the right to relief.  There are no particulars or evidence of facts that would support the grant of the relief claimed.  None of the country information is identified.  For orders requiring the respondent to show cause why final relief should not be granted, the applicant must provide material showing that there is at least an arguable case for the grant of the final relief claimed.

19                  On the material before me, the applicant has not made out an arguable case that the Tribunal committed jurisdictional error.  The application for an order nisi should therefore be dismissed with costs.

Associate:

Dated:              30 May 2006