FEDERAL COURT OF AUSTRALIA
SZFLL v Minister for Immigration & Citizenship [2007] FCA 355
Migration Act 1958 (Cth) ss 57 and 424A
Jess v Scott (1986) 12 FCR 187
NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174
Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572
WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359
SZFLL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1842 OF 2006
GRAHAM J
23 FEBRUARY 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1842 OF 2006 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZFLL Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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GRAHAM J |
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DATE OF ORDER: |
23 FEBRUARY 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1842 OF 2006 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZFLL Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGE: |
GRAHAM J |
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DATE: |
23 FEBRUARY 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 This is an appeal from a judgment of Driver FM delivered in the Federal Magistrates Court of Australia on 24 August 2006. No Notice of Appeal was filed and served within 21 days after the date when the judgment appealed from was pronounced in accordance with Order 52 r15(1)(a)(i) of the Federal Court Rules (‘the Rules’).
2 However on 22 September 2006 the appellant, who has been identified for the purposes of these proceedings as SZFLL, filed an Affidavit sworn by him on 16 September 2006 which was, in effect, both an Application for an extension of time within which to file and serve a notice of appeal from the judgment of the learned Federal Magistrate and also a justification for such an extension of time. It may be observed that the Affidavit was sworn some two days after the time for filing a Notice of Appeal expired and it was filed six days after that.
3 Under Order 52 r15(2) of the Rules a Judge may ‘for special reasons’ at any time give leave to file and serve a Notice of Appeal.
4 In Jess v Scott (1986) 12 FCR 187 at 195 a Full Court of this Court said that the expression ‘special reasons’ was ‘intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case’.
5 The Full Court continued by describing the expression ‘special reasons’ as conferring ‘a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served’.
6 The Court drew a distinction between a case where there may have been an oversight of a day and one in which a neglect persisted during a prolonged period. Where a party was a few days late the Court said ‘something much less significant might justify leave’.
7 In this case an interesting argument in relation to the reach of s 424A of the Migration Act 1958 (Cth) (‘the Act’) has been advanced sufficient to justify departure from the general rule that time limits imposed under the Rules must be complied with.
8 When cross-examined in relation to his awareness of a 21 day time limit, the appellant conceded that he had been informed by the learned Federal Magistrate that such a time limit applied. However, the appellant, who was at the time attending to his affairs with the assistance of a migration agent, said that he did not receive the judgment until three days after the Federal Magistrate’s reasons were certified, i.e. not until 7 September 2006 or thereabouts.
9 In the circumstances it is perhaps surprising that the respondent Minister opposed an extension of time within which an appeal may be brought. Be that as it may, I have concluded that leave should be granted to the appellant to file and serve a Notice of Appeal, albeit strictly out of time.
10 On the hearing of the Application for such leave, which was heard in conjunction with the appeal on the premise that leave may be granted, the appellant, then the applicant, was represented by Dr Azzi of counsel. The Minister was represented by Mr Leerdam, a solicitor.
11 Dr Azzi read not only the Affidavit of the appellant sworn 16 September 2006 but also he relied upon a document entitled ‘Affidavit’ which was signed by the appellant and dated 9 February 2007. That ‘Affidavit’ was filed in the Court by the appellant on 12 February 2007. To it a ‘Draft Notice of Appeal’ was attached. On the second day of the hearing of the matter, namely 22 February 2007, leave was granted to the applicant to file in Court a Notice of Appeal signed by him and dated 9 February 2007. Such Notice of Appeal took the form of the draft which had been attached to the ‘Affidavit’ of 9 February 2007. It is that Notice of Appeal which is the subject of consideration in the balance of these reasons.
12 The Notice of Appeal contained two grounds each of which was argued on the hearing of the appeal. For present purposes it is unnecessary to identify the particulars which were provided under those two grounds. The grounds themselves were expressed as follows:
‘1. His Honour erred in dismissing the application for review of the Tribunal’s decision in circumstances where his Honour held the Tribunal did not overlook an “element or integer of [the applicant’s] claim” so that it “was not required to pursue the subtle questions of [Syrian] influence on the relevant Lebanese authorities” when considering the applicant’s claim to fear the Lebanese authorities “[b]ecause the applicant was not believed”.
2. His Honour further erred in dismissing the application for review of the Tribunal’s decision in circumstances where the Tribunal failed to afford the applicant procedural fairness in accordance with section 424A of the Migration Act 1958 (the “Act”)’
13 The appellant was born in Lebanon on 23 February 1978. He is a citizen of Lebanon who held a Lebanese passport issued to him on 21 December 2001. On 11 August 2002 he arrived in Australia, entering this country under a Visitor’s Visa issued to him in Beirut on 22 July 2002.
14 On 9 September 2002 the appellant applied for a Protection (Class XA) Visa.
15 That application was refused by a delegate of the Minister on 19 December 2002.
16 On 5 February 2003 the appellant filed an Application for Review of the Minister’s delegate’s decision with the Refugee Review Tribunal. It was part of the appellant’s case that ‘The Lebanese authorities will not protect anyhow. The record of the Lebanese authorities on offering protection to L.F. [Lebanese Forces] members and supporters is not very encouraging especially in light of the human rights abuses perpetrated against L.F. members and supporters in recent years. The Lebanese authorities would still persecute me for my ongoing L.F. students activities’.
17 The appellant gave oral evidence to the Tribunal on 27 August 2003. Thereafter, the Tribunal decided the Application for Review adversely to the appellant, affirming the decision of the Minister’s delegate not to grant the appellant a protection visa on 10 October 2003. That decision was handed down on 4 November 2003.
18 An Application for constitutional writ relief would appear to have been filed in the Federal Magistrates Court of Australia on 11 January 2005 which resulted in the decision of Driver FM of 24 August 2006 to which reference has previously been made.
19 On 24 January 2005 a Registrar in the Federal Magistrates Court ordered the appellant to file and serve an Amended Application with particulars. Apparently this order was not complied with, with the result that the Application which came before the Federal Magistrates Court contained a single ground of review which was referred to in the reasons for judgment of Driver FM as ‘that the RRT erred in a manner amounting to jurisdictional error in that it failed to consider every integer of the applicant’s claim of a well-founded fear of persecution’. The particulars given in respect of that ground were expressed by the learned Federal Magistrate ([2006] FMCA 1242 at [3]) as:
‘that the RRT failed to consider the claim of the applicant to a well-founded fear of persecution, first from the Syrian intelligence forces operating within Lebanon and, secondly, based on the inability of the Lebanese government to protect the applicant from serious harm at the hands of or at the instigation of either Muslim paramilitary groups or Muslim officials presently part of the Lebanese government.’
20 At [11] the learned Federal Magistrate said:
‘… the applicant’s problem was that he was in essential respects not believed. Because the applicant was not believed, the presiding member was not required to pursue the subtle questions of influence on the relevant Lebanese authorities that might otherwise have called for consideration. The applicant’s claims were considered in the terms that they were put and, in substance, rejected. The RRT did not err by overlooking any element or integer of the applicant’s claims.’
21 The Tribunal’s reasons occupied some 27 pages of typed script. Under the heading ‘claims and evidence’ the Tribunal recorded:
‘The applicant claims to be a student and a member of the Lebanese Forces Students (LF Students). He claims that as a result of his activities he was arrested on four separate occasions - in August 1998, September 1998, January 2000 and in 2002 after the death of Ramzi Irani- by the military intelligence. He claims that on each occasion he was forced to sign statements to the effect that he would not participate in political activities. He claims that ten days after his arrival in Australia he was told by his parents that the military intelligence had been asking about him.
He claims that he is still an active member of the LF Students and that he played an important role in LF Students’ activities. He fears being apprehended by the Lebanese authorities and being detained upon his return.’
22 Under the heading ‘FINDINGS AND REASONS’ the Tribunal ultimately concluded under the subheading ‘Fear of future harm’:
‘The Tribunal has considered if the applicant will be persecuted for the reason of his membership of LF if he returned to Lebanon now or in the reasonably foreseeable future.
The independent evidence referred to above suggests that only Lebanese who take political action that “might have repercussions on the ground”, for example, action that might lead to a security threat, face a real chance of serious harassment. The authorities are only interested in former LF members who are “wanted in connection with serious crimes, such as murders or bombings” or those involved in overt political activities. The authorities do not pursue members of LF rank and file (DFAT, Country Information Report, No. 1028/96, Lebanon: Treatment of Former Lebanese Forces, 9 December 1996, CX21238).
The Tribunal has found that the applicant was not a member of LF Students. He was an ordinary member of LF who had held no positions within the organisation. The applicant did not claim, and there was no evidence before the Tribunal to indicate, that he was involved in a serious crime. He described his activities as distributing flyers, attending demonstrations and educating the young. The Tribunal has rejected the applicant's claims that he was arrested and detained in the course of attending demonstrations in 1998 and 2000. The applicant did not claim to have been prevented from attending memorial masses for the martyrs held annually in the month of May or any the other demonstrations or to have been harmed in the course of, or as result of, participating in these activities. The Tribunal is satisfied that the applicant's low-level activities did not give him a profile that was of any real interest to the Lebanese authorities.
The above finding is reinforced by the applicant's ability to obtain a passport and depart Lebanon legally without experiencing any difficulties. The independent information cited above suggests that the Lebanese authorities would certainly have prevented the issue of a passport to any individual wanted whose crime was linked to his/her membership of LF (DFAT, Country Information Report, No. 1028/96, Lebanon: Treatment of Former Lebanese Forces, 9 December 1996, CX21238). The applicant had no difficulties in obtaining his passport in December 2001.
Overall, the Tribunal, based on the totality of the evidence before it, including the independent evidence cited above, is not satisfied that the applicant was involved in any political activity, held any positions or had a profile that brought him to the adverse attention of the authorities. The Tribunal is satisfied that if the applicant returned to Lebanon he would be able to express his views without experiencing unreasonable restrictions on his right of political expression. It is clear from the independent evidence that there is not a complete denial of civil and political rights in Lebanon. A level of public expression of political views is tolerated and simply expressing support for opposition parties without something more is not a cause of harassment. The Tribunal is satisfied that if the applicant returned to Lebanon and continued to engage in political activity and or criticism at the same level as he has in the past there is no real chance that he would face persecution as a result. The Tribunal does not consider that the applicant’s activities in Australia, namely visiting the LF office or attending meetings and receptions, raise his political profile beyond what it was prior to his departure from the country. The Tribunal, therefore, finds that if the applicant resumes his activities at the same level as he has in the past the chance that he will be persecuted by the authorities in the reasonably foreseeable future is remote.’
23 In dealing with ‘The Hearing’ in that section of its decision headed ‘CLAIMS AND EVIDENCE’ the Tribunal asked the appellant about the incidents said to have taken place in August 1998, September 1998, January 2000 and 2002. It also asked him about his education, including his assertion that he had been a student at the Holy Spirit University undertaking a course in ‘marketing’ in 1998, 1999 and 2000 before he ceased studying in what was said to be a five year course after three years. Given the appellant’s apparent lack of knowledge of the courses taught in the marketing degree, the Tribunal Member apparently indicated to the appellant that he had difficulty in accepting that he was a student at the Holy Spirit University in the years mentioned and asked him to provide evidence to support his claim in that regard.
24 In addition, the Tribunal informed the appellant that the Lebanese Forces website contained no record of any major demonstrations in August and September 1998. In addition it suggested that there had been no mention of a demonstration in January 2000 although the appellant had suggested that the January 2000 demonstration had been attended by 4,000 people. The Tribunal Member recorded that the appellant had no comments when these matters were drawn to his attention.
25 It would appear that in deciding the Application before it the Tribunal had regard to a search undertaken by it on the website of the Holy Spirit University (which revealed a number of course names which had not been mentioned by the appellant in his evidence when he was challenged as to his attendance at the University). The Tribunal was of the view that ‘the applicant has fabricated his evidence regarding his educational history’. It later continued:
‘The Tribunal is of the view that the applicant has fabricated his educational history in order to enhance his profile and the extent of his activities for or on behalf of the organisation. The fact that he demonstrated a palpable lack of knowledge about the structure of LF Students at his university reinforces the aforesaid view.’
26 The Tribunal proceeded to reject the appellant’s claim that he was arrested and detained in August and September of 1998. In rejecting the appellant’s claims in this regard the Tribunal had regard to the absence of any mention of the alleged incidents on the Lebanese Forces website and also in other internet records which might be expected to contain such information.
27 Similarly, the Tribunal was not prepared to accept that the appellant was arrested and detained in January 2000 in the course of attending a demonstration. Once again, the Tribunal relied upon the absence of any mention of the demonstration said to have taken place on a number of websites which one might expect would include mention of the demonstration, had it occurred.
28 In relation to the 2002 matter the Tribunal had ‘serious reservations regarding this claim’ for reasons which it proceeded to detail. These included:
‘… the applicant did not impress the Tribunal as a credible and truthful witness. In reaching this view the Tribunal has had regard to the applicant’s willingness to fabricate his evidence regarding his evidence (sic) regarding his educational history and his membership of LF students; and the fact that key portions of his evidence are completely unsupported by the country information before the Tribunal. In the Tribunal's view the totality of the applicant’s oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose.’
29 The Tribunal did not accept that the appellant had been arrested and detained in 2002 by the Lebanese authorities.
30 Ultimately, the Tribunal was not satisfied that the appellant had a well-founded fear of Convention-based persecution.
31 It may be observed that information taken into account as the reason or part of the reason for the Tribunal affirming the decision of the Minister’s delegate included the information obtained by the Tribunal from the Holy Spirit University’s website, in respect of the component parts of the marketing degree course, and the absence of Country Information supportive of the appellant’s allegations that demonstrations took place in August 1998, September 1998 and January 2000, it being assumed by the Tribunal that, had the incidents in question occurred, they would have been mentioned in the relevant Country Information.
The first ground of appeal
32 Counsel for the appellant acknowledges that insofar as the appellant claimed to have a well-founded fear of persecution from the Lebanese authorities on the basis that they were sympathetic to Muslim causes and against Christian movements such as Lebanese Forces and Lebanese Forces Students, these claims had been properly addressed by the Tribunal.
33 The appellant’s case is that the Tribunal failed to consider a claimed fear on the part of the appellant of persecution from Syrian forces operating within Lebanon in respect of which the Lebanese authorities failed to offer persons such as the appellant protection.
34 In support of the submission that the Tribunal failed to deal with a claim which had been put or which was evidently available to the appellant on the material before the Tribunal, the Court was invited to have regard to matters put to the Tribunal, certain Country Information referred to in the Tribunal’s decision and certain matters raised in the hearing before the Tribunal for which an unauthorised transcript was in evidence before the Federal Magistrate, to the extent to which it was not in conflict with the material contained in the Court Book. The material before the Tribunal included a written statement by the appellant accompanying the appellant’s Application for Review, in which the appellant stated:
‘I applYed for a visitor visa to Australia trying to avoid the contact with the military intelligence services. Nobody knew about my visa I was fear somebody will dumped me in - after 10 days from my arriving to Australia my parents called regards the military intelligence services came to arrest me, My parents told them we don't know where he is. When he is back home we will let him know that you want him. That is when I start to ask what can I do here to be away from them, and to be in a safe home and country. I am asking the Australian Government to give me a protection visa and a chance to have a new start in my life.’
35 The Country Information included material drawn from the Research Directorate of the Immigration and Refugee Board of Canada as follows:
‘The presence in Lebanon of the Syrian army and its security branches, with their hegemony over political life, impedes democratic practice in the country and destroys freedoms.
A 26 December 2001 AFP report states that:
Some 200 militants and workers for the FL [Lebanese forces] and the Aounist movement of anti-Syrian Christian leader Michel Aoun, who lives in voluntary exile in France, were detained and later released, some after four months in jail …
A 15 August 2001 AP report states that 13 “Christian activists” opposed to Syrian influence in Lebanon were handed one month prison sentences and fines of up to 200,000 Lebanese pounds (US$ 133) for having instigated riots and being part of unlicensed political organizations.’
36 The material drawn from the Department of Foreign Affairs and Trade (‘DFAT’) Information included:
‘Syria does not attempt micro-control and does not care that opposition politicians and entire districts seethe with loudly voiced anti-Syrian sentiment. Syrian forces are there essentially to protect specific Syrian interests which includes an interest in Lebanese political and security developments. (Cable DM39671 of 3 June 1993, CX6522.)
37 A further 1996 DFAT report included:
‘It is most unlikely that the Syrians would actively pursue individuals whom they regard as low-level “offenders”. The fact that low-level anti-Syrian activists have been briefly detained and then released is, according to the lawyer cited above, almost prima facie proof that those in question are not really wanted by the Syrians. (DFAT, Anti-Syrian activity, Country Information Report LBN3894 Cable BI 2221 of 11/11/96, 10 December 1996, CX21239)’
38 The material from the Research Directorate of the Immigration and Refugee Board of Canada also included:
‘The following information was provided during a 11 September 1998 telephone interview with the Director of the Centre for Lebanese Studies in Oxford, England.
The Director stated that the situation of members and supporters of the Lebanese Forces has improved significantly in the last two years. Members of the Lebanese Forces (LF) participated in the recent municipal elections and were very successful. The candidates officially represented the Lebanese Forces, a fact well-known by the Syrian and Lebanese security forces. None of the candidates were harassed or mistreated during the campaign. The Director added that there is no mass targeting of members or supporters of the LF.
…
… (Documentation, Information and Research Branch, Immigration and Refugee Board, Lebanon: Treatment of members and supporters of the Lebanese Forces (1994-1998), 17 September 1998, LBN29983.E)’
39 The passages in the unauthorised transcript of the Tribunal hearing included the following
‘Appellant: The Lebanese Forces have been sort of fighting for the last five, few years, five years, to keep the Christians, to maintain the Christian presence in Lebanon.
…
Appellant: … many are annoyed for this presence.
…
Appellant: We used to participate in meetings for the Lebanese Forces Students.
Appellant: And disturb the Government and they tried to sort of stop them.
…
Tribunal: Any other demonstrations that you participated in?
…
Appellant: Sometimes the Government would make decisions which oppose the welfare of the students and it was to always say that we should, we had to demonstrate.
Appellant: And we used to organise demonstrations calling for the withdrawal of the Syrian Forces from Lebanon.
…
Appellant: We organised demonstrations to oppose the presence of the Syrian Army in Lebanon.
…
Appellant: It was a very big demonstration and the army interfered.
Appellant: And they fought us.
Appellant: And I was arrested.
…
Appellant: I was taken to the office of the Intelligence Forces in Jbail.
…
Appellant: When we were first arrested, we sort of got bashed a lot.
…
Appellant: We had a, sort of came into contact with the Army, the Lebanese Army.
…
Appellant: They were hitting us at random with sticks, with their weapons.
…
Tribunal: … on this occasion how long were you held?
Appellant: This time we were there for about ten days because we were sort of attacked by the Army and we sort of attacked them as well.
Tribunal: Did you have to go to court?
Appellant: This time no …
Appellant: The Intelligence Forces feel it is so sufficient for them to spot a person, torture them and then release them.
Appellant: But this was not always the case. Sometimes people are imprisoned or they are referred to court.
…
Tribunal: In your application form you say that you departed Lebanon with assistance from Syrian soldiers.
Appellant: Yes.
Tribunal: How, how did this happen, describe to me what did you do?
Appellant: My relatives have relationship with one of them.
Appellant: He paid them money and he's the one who got me out of there.
…
Tribunal: Who was this person who helped you?
Appellant: He's a Major in the Syrian Army …
…
Tribunal: What was the rank of this person in the Syrian Army?
Appellant: He’s in charge of Intelligence Forces.
Appellant: Of the Syrian Forces department in Lebanon.
…’
40 It seems to me that the appellant’s submission that the Tribunal failed to deal with a claimed fear on the part of the appellant of persecution from Syrian forces operating within Lebanon in respect of which the Lebanese authorities failed to offer persons such as the appellant protection, is totally misconceived. It is abundantly clear that no such case was advanced before the Tribunal by the appellant, nor was it capable of being advanced on the material which was before the Tribunal. There is no doubt that Syrian forces were operating in Lebanon but there is no evidence to suggest that any harm was inflicted upon the appellant or threatened in relation to him by the Syrian forces.
41 Ground 1 in the notice of appeal fails.
The second ground of appeal
42 This ground of appeal raises for consideration once again the meaning and scope of s 424A(3)(a) of the Act. Section 424A relevantly provided:
‘424A(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; …
(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; …’
43 The appellant's case is that the results of the search of the Holy Spirit University's website in relation to the marketing degree course should have been disclosed to the appellant in accordance with s 424A(1)(a) of the Act and that the lack of Country Information to support the appellant’s claims of demonstrations and disturbances in the available Country Information should also have been drawn to the appellant's attention.
44 In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174, a Full Bench of the Court comprising Tamberlin, Weinberg and Allsop JJ had to consider the non-disclosure to the appellant of results obtained from an internet search of the appellant's name when ‘Google’ and ‘MSN’ searches were undertaken on the internet. Another matter to which the Tribunal had regard in that case was the omission from a Dr Nair’s report that were he to return and be placed in a confrontational situation the appellant would be likely to express his views against the regime.
45 In concluding that the Tribunal was not satisfied that he might react in this way regard was had to the fact that Dr Nair had said nothing about such a possible reaction. In this context Tamberlin J said at [6]:
‘… I agree with the reasoning of Allsop J that the fact of the [internet] search and the negative result was information which ought to have been disclosed to the appellant under s 424A to provide an opportunity for the appellant to make submissions in response.’
46 In the judgment of Weinberg J at [32], [39] and [43] his Honour said:
‘[32] One such difficulty is that there is no uniformity in the case law as to whether the term "information" in s 424A is confined to positive statements of fact, or whether as more recent judgments suggest, it can encompass omissions.
…
[39] It seems to me that each case must depend upon its own particular circumstances. There is no reason in principle why an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently when it comes to s 424A, than a positive statement. That is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case.
…
[43] In relation to the second s 424A issue, I also agree with Allsop J that the Tribunal failed to comply with that section by not informing the appellant of the fact that it had conducted internet searches, which, it appeared, had revealed no internet sites containing his name. In my opinion, that fact constituted “information” within the meaning of s 424A.’
47 In his reasons for judgment Allsop J said at [75], [76], [77] and [80]:
‘[75] In my view, the information which should have been the subject of a letter in compliance with s 424A was that Dr Nair had reported and did not state that the appellant might react in a way to express his views against the regime. The letter should have pointed out why this was relevant to the review - that it tended against the proposition that he might so behave.
…
[76] The primary judge said that the results of the searches were not part of the reason for the purposes of s 424A(1). I cannot agree. …
[77] The web search results were a part of the reason.
…
[80] Thus, I respectfully disagree with the primary judge in his conclusions that the information about the results of the internet searches did not require a s 424A(1) letter; and I reject the submissions of the Minister that relief ought be withheld for discretionary reasons.’
48 It must be observed that in the case of NBKS the report of Dr Nair upon which reliance was placed in the manner indicated was a report written specifically about the appellant in that case. It must also be observed that the internet search, and the nil result, upon which reliance was placed was again specifically about the appellant.
49 In his submissions counsel for the appellant urged that the Court should follow so much of the decision of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 at [33]-[34] where his Honour recorded the view that s 424A(3)(a) of the Act required the Court to address two separate criteria. This submission does not bear analysis. The wording of s 424A(3)(a) is not felicitous and the words ‘and is’ have given rise to some difficulty. However, that difficulty has been resolved and the law made clear in a series of judgments of this Court.
50 The matter was specifically addressed in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572. In that case Merkel and Hely JJ said at [132]:
‘Four factors have led us to conclude that by enacting s 424A (and s 359A) Parliament intended to substantially replicate the effect of s 57(1). …’
51 I will not take time to mention the specific factors relied upon. In [127] their Honours had quoted s 57 of the Act which relevantly provided:
‘(57)(1) In this section, relevant information means information … that the Minister considers:
…
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member.’
52 At [138] their Honours said:
‘[138] As is demonstrated by the differences of opinion within the Court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it….’ (emphasis added)
53 This approach to the construction of s 424A(3)(a) was identified as correct in the decision of a Full Bench of this Court in WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] where Nicholson, Jacobson and Bennett JJ said:
‘[44] This submission by the appellant is dependant on whether s 424A(3) contains two criteria. A recent decision of the Full Court, Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 ..., delivered on 23 September 2004, held that the only criterion is that the information is not specifically about the applicant or another person, and that the reference in s 424A(3)(a) to the class of persons is a provision designed to underline the specificity required by precluding an argument that reference to a class could be taken as a reference to all individuals falling within it, including an applicant.’
54 In relation to arguments that were advanced before the Court in WAJW their Honours said at [45]: ‘… they do not provide a foundation to depart from the effect of the reasoning in NAMW’.
55 Further assistance in relation to the true construction of s 424A(3)(a) is to be gained from the judgment of Gyles J in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [31] where his Honour said speaking of s 424A(3)(a):
‘The provision is … an exception, which it is accordingly necessary to construe in context. The governing provision of s 424A is s 424A(1)(a). The 'information' to be given to an applicant must be of a character 'that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review'. The decision under review is necessarily adverse to the visa applicant as the Minister's decision not to grant a visa has been upheld by the Tribunal. Thus, the information to be provided to the applicant is necessarily adverse to the applicant's case for granting of a visa. To be adverse in that sense the information must relate to the applicant. Otherwise it would be irrelevant. … Information can relate to an applicant in various ways. Most directly, information will relate to an applicant where he or she is expressed to be the subject of the information. Information adverse to an applicant can indirectly relate to an applicant because it expressly concerns an identified person with a relevant relationship with the applicant's case for a visa. In either of those cases, the information relates to a specific person (or persons). Information adverse to an applicant may also indirectly relate to an applicant because it relates to a class (or classes) of which the applicant is a member. Such adverse information is general in nature rather than particular. Information can not relate to the applicant in any other manner. If such information does not relate to the applicant it is not adverse to an applicant and does not come within the purview of s 424A at all.’
56 Sufficient has been said to indicate that the information obtained in this case from the Holy Spirit University website as to the content of the marketing degree course was not information specifically about a person or persons; it was information which was within the exclusion contained in s 424A(3)(a). That is to say it was information that was not specifically about the applicant or another person in the sense described by Gyles J.
57 This leaves for consideration the question of the reliance placed by the Tribunal on the lack of Country Information in relation to the demonstrations and disturbances in which the appellant says he participated. The matter was specifically addressed, albeit briefly, by Allsop J in SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359. The matter was dealt with under the heading ‘s 414A – Issue 3 – “the absence of country information issue” addressed in paragraph 12(e) of the appellant's written submissions’.
58 Unfortunately, the written submissions referred to were not appended to his Honour's reasons for judgment and I do not have access to them. However, sufficient may be gleaned from his Honour's consideration of the issue at paragraphs [13]-[15] where his Honour said:
‘[13] The Tribunal relied on the absence of independent country information to reject the appellant's fear of persecution because he was of Gujarat ethnicity or from the Gujarat state or because he is a member of a Pathan family caste. The knowledge of absence of country information was said to be "information" not caught by s 424(3)(a).
[14] On p 17 of its reasons the Tribunal stated:
"The Applicant claimed to fear persecution because he is of Gujarat ethnicity or from Gujarat state, however the Tribunal is not satisfied that the Applicant's fear of persecution is well-founded. This is because there is no independent country information before the Tribunal and none was submitted by the Applicant or his adviser to suggest that Gujaratis are persecuted by anyone for these reasons."
[15] I reject this submission. The conclusion here reached by the Tribunal is one about the state of country information. As such, it is encompassed by s 424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572, WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178’ (emphasis added).
59 No submission was put by the appellant that Allsop J had erred in deciding this issue in SZHFC in this way, although counsel for the appellant did indicate that he had some difficulty in addressing the matter, given the scant factual detail which was available.
60 It seems to me that where independent Country Information contains positive material or where independent Country Information is lacking in the sense that the available independent Country Information makes no mention of a particular matter, the same approach should be adopted. It cannot be said that the information or lack of it is specifically about an applicant or another person. Such independent Country Information, or lack of it, falls within the exclusion for which s 424A(3)(a) of the Act provides.
61 In the circumstances, the second ground of appeal also fails. Accordingly, the appeal should be dismissed.
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I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. |
Associate:
Dated: 14 March 2007
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Counsel for the Appellant: |
Dr J G Azzi |
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Solicitor for the Respondent: |
Mr L Leerdam of DLA Phillips Fox |
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Dates of Hearing: |
19 and 22 February 2007 |
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Date of Judgment: |
23 February 2007 |
