FEDERAL COURT OF AUSTRALIA
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
MIGRATION – procedural fairness – whether Refugee Review Tribunal complied with s 424AA Migration Act 1958 (Cth) – whether Tribunal failed to give particulars of information which might be the reason or part of the reason for the Tribunal to affirm the decision under review – information in question was country information – excluded from operation of s 424A by s 424A(3) – s 424AA did not oblige Tribunal to provide information prescribed in s 424A(3) – Tribunal provided particulars of such information regardless – no breach of s 424AA – application dismissed
Migration Act 1958 (Cth) s 424A, s 424AA, s 441A
Migration Amendment (Review Provisions) Act 2007 (Cth)
Migration Legislation Amendment Act (No 1) 1998 (Cth)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Jess v Scott (1986) 12 FCR 187 cited
SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 cited
SZLML v Minister for Immigration and Citizenship [2009] FCA 83 cited
SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 referred to
SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 cited
SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 cited
SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 cited
SZMMP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1957 of 2008
LANDER J
17 MARCH 2009
ADELAIDE (HEARD In sydney)
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1957 of 2008 |
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BETWEEN: |
SZMMP Applicant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGE: |
LANDER J |
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DATE OF ORDER: |
17 MARCH 2009 |
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WHERE MADE: |
ADELAIDE (HEARD IN SYDNEY)) |
THE COURT ORDERS THAT:
1. The application for an extension of time to file a notice of appeal be dismissed.
2. The applicant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1957 of 2008 |
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BETWEEN: |
SZMMP Applicant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGE: |
LANDER J |
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DATE: |
17 MARCH 2009 |
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PLACE: |
adelaide (heard in sydney) |
REASONS FOR JUDGMENT
1 This is an application for an extension of time to file and serve a notice of appeal.
2 The applicant, who is a citizen of the People’s Republic of China arrived in Australia on 12 December 2007. On 25 January 2008 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 12 February 2008 a delegate of the Minister refused to grant the visa. The applicant was notified of the decision on the same day. On 11 March 2008 the applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.
3 On 12 June 2008 the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
4 On 8 July 2008 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.
5 On 7 November 2008 Cameron FM dismissed the application for judicial review finding that the applicant had not established jurisdictional error on the part of the Tribunal. Counsel was present when Cameron FM published his reasons and made his orders. On 11 November 2008 counsel wrote to the applicant’s solicitor enclosing a copy of Cameron FM’s reasons for judgment and the orders.
6 Counsel wrote:
As to the appeal, this needs to be done as soon as possible. However it seems appropriate that the applicant be aware that payment of my fees for this application be settled before the appeal process can proceed. He will need to organise payment within the next 7 days so the appeal documents can be drafted.
Counsel enclosed a copy of his memorandum of fees for work done to that date.
7 The applicant’s solicitor deposes in an affidavit sworn on 9 December 2008 that the applicant provided him with funds for counsel’s fees on 2 December 2008. He said that as soon as he received the money he gave counsel instructions to prepare the appeal.
8 The applicant’s solicitor does not explain whether he brought to the applicant’s attention that O 52 r 15 of the Federal Court Rules requires the notice of appeal to be filed and served within 21 days after the date when the judgment to be appealed from was pronounced. No notice of appeal was filed within the time prescribed by O 52 r 15 but on 17 December 2008 the applicant applied for an extension of time to file and service the notice of appeal. The application was supported by the applicant’s solicitor’s affidavit to which I have already referred.
9 Order 52 rule 15(2) allows the Court, for special reasons, to give leave to file and serve a notice of appeal outside the period of 21 days specified in O 52 r 15(1)(a).
10 In Jess v Scott (1986) 12 FCR 187, the Full Court said that special reasons need to be shown why the appeal should be permitted to proceed. The Court explained that special reasons in that context was meant to distinguish the case under consideration from the usual course according to which the time is 21 days.
11 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Court indicated that there were five indicia which ought to be addressed in determining whether relief ought to be given:
(a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored.
(b) There must be some acceptable explanation for the delay.
(c) Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension.
(d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.
(e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.
12 The explanation for the delay is somewhat perfunctory and incomplete. As I have already noticed, it remains unclear whether the applicant was put on notice that the notice of appeal needed to be filed by 28 November. Counsel’s letter to the applicant’s solicitor put the solicitor on notice that there was a degree of urgency about the matter but that seems not to have been appreciated by the solicitor who swore his affidavit on 9 December 2008 but did not lodge the application for this extension until 17 December 2008. There is no prejudice to the respondent but as the Court said in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 the mere absence of prejudice is not enough to justify the grant of an extension.
13 It seems to me that whether or not an extension of time should be granted in this application will be determined by reference to the merits of the appeal to which I will now turn.
14 The applicant was born on 7 April 1974 in the Archeng District, Harbin City, Heilongjiang Province in China. He was educated between 1981 and 1993, having studied at a technical school in the last three years of his schooling. In March 1994 he was employed by Archeng Water Company and worked for that company for more than 13 years. During this period of employment he studied for Business Management at Harbin Economic Cadre Management College.
15 The Archeng Water Company is a State-owned enterprise and has the monopoly for water supply in the Archeng area. It has the responsibility of regulating the extraction of water so as to preserve ground water. The company established an inspection team to inspect water meter systems on a regular basis. In October 2006 the applicant was transferred to an inspection team. An inspector’s duties were not only to inspect water meters but also to verify whether or not the users have paid proper water rates. The applicant said that he discovered that a restaurant’s meter system had been modified without authorisation and that it was being charged at a residential rate rather than the higher commercial rate. He said that he brought those matters to the attention of the restaurant owner and then reported the matter to the leader of the inspection team. He said that the company did nothing about it but said that it would be addressed after another inspector, who was then in hospital, returned to work.
16 The applicant said that the restaurant was controlled by the family of Mr Yun Fei Wang who was the then President of the Political and Legal Committee in Archeng District which had the responsibility of supervising the Courts, the Procuratorate and the Public Security Bureau in Archeng District.
17 He said that in April 2007 he wrote anonymously to the Harbin Discipline Inspection Committee, Harbin City Anti-corruption Bureau, Harbin People’s Procuratorate and Harbin People’s Court revealing corruption in relevant government agencies in Archeng District urging those authorities to investigate the restaurant run by Yun Fei Wang’s family and the corrupt officials, including Yun Fei Wang and those in charge of the Archeng Water Company.
18 He said that the Harbin Municipal Government sent an investigation group into the Archeng District who spoke with him on three separate occasions inviting him to provide information to assist them in their investigation. He said that on 25 May 2007 the investigation group concluded that the restaurant, Yun Fei Wang and the leaders of Archeng Water Company were “clean”.
19 On the same day, at about 7.00 pm whilst he was having dinner with his wife and daughter, three police officers came to his house. They said that he was suspected of writing anonymous letters to damage Yun Fei Wang’s reputation, as well as other leaders of the Archeng Water Company and, as a result, he was to be detained under investigation. He was sent to Archeng No 1 Detention Centre.
20 He said that he was treated as a Falun Gong practitioner, notwithstanding that he was not. As a consequence, he said that he was subjected to persecution in the Detention Centre. He said that he was tortured, mistreated and humiliated every day and night and was forced to do punitive work.
21 Notwithstanding his treatment, he refused to confess that he had been the author of the anonymous letters. He was detained for six weeks. When he was released on 6 July 2007 he was unemployed because he had been dismissed as soon as he had been detained. In August 2007 he said he began work as a temporary construction labourer and became acquainted with Song Tao Mao who was a member of an underground political association known as “China Freedom and Democracy Party”. He said he was recruited to the Party by Mr Mao and thereafter secretly distributed promotional materials protesting against the communist dictatorship in China. He also assisted Mr Mao, he said, to recruit new members of the party. He said that in October 2007 an action group of the Party was established in the District under the leadership of Mr Mao. The action group had two objectives, namely the distribution of pro democracy materials and the recruitment of members.
22 The applicant said that he appreciated the dangers involved in his association with the China Freedom and Democracy Party and therefore asked a friend to arrange a trip overseas in case there was any threat to his safety.
23 On 1 December 2007 two members of the action group, the applicant said, were arrested by the Public Security Bureau. The applicant said that he had already obtained his visa and he arranged to leave the country as soon as possible. He said that Mr Mao was arrested on 20 December 2007, and another member of the action group arrested on 8 January 2008.
24 He said his wife had been questioned by the police five times since he left and his house searched on each occasion that she was questioned.
25 The applicant gave evidence before the Tribunal. The Tribunal concluded “that the applicant’s material claims lack credibility and cannot be accepted”. The Tribunal identified a number of matters of detail which it said rendered his evidence highly implausible. The Tribunal did not accept the details of his work history. Nor did the Tribunal accept that the applicant was ever arrested, tortured and detained by the police or any other interest group. The Tribunal found that his answers in relation to the China Freedom and Democracy Party’s guidelines were “rambling and non-responsive”. The Tribunal found that:
The applicant was not able to demonstrate any understanding of the goals or guidelines of the Party. This raises serious doubts as to whether the applicant did join the Freedom of Democracy Party and become an active member. It also raises serious concerns in relation to the credibility of the applicant.
26 The Tribunal concluded that the applicant had decided to leave China for Australia well before 1 December 2007. It did not accept that two members of the Party were arrested on 1 December 2007 or that, if they were, that drove the applicant to leave China.
27 The Tribunal found that the applicant was not a witness of truth and was prepared to fabricate his claims to give himself the profile of a refugee.
28 It rejected his account to which reference has been made and found that the applicant’s claims of fear and persecution were not well-founded. Specifically, the Tribunal found that if the applicant returned to China there was no real chance that he would be “arrested, detained, tortured, imprisoned or killed for writing anonymous letters of complaint to the authorities or for his membership of, or perceived membership of, and activities associated with the Freedom and Democracy Party”.
29 For those reasons, the Tribunal was satisfied that there was no real chance that the applicant would be persecuted if he were to return to China.
30 In his application to the Federal Magistrates Court the applicant complained that the Tribunal had fallen into jurisdictional error by contravening s 424AA of the Migration Act 1958 (Cth) (the Act) in that it did not ensure that the applicant understood why the country information put to him at the oral hearing was relevant to the review.
31 The Federal Magistrate identified the relevant passage in the Tribunal by reference to the applicant’s solicitor’s affidavit:
I want to talk to you about something that’s important. I’ll explain to you why it’s important first and then I’ll give you an opportunity to say anything you wish to say.
Something what you – some of the things you’ve told me is [sic] not consistent with the country information on China. This is important, because it could result in me forming the view that you are not a witness of truth. If I were for form that view, it could lead me to the conclusion that you are not a refugee. If I were to reach that conclusion, then I would have to affirm the decision made by the Department of Immigration. That would mean that you would not be entitled to a protection visa and your application would be unsuccessful.
Now, the Australia Department of Foreign Affairs and Trade, has – they have obtained information on China’s entry and exit laws. Those laws prevent certain people from leaving China. This includes people that the Chinese authorities consider to be harmful to state security or national interest.
So the information they’ve obtained is that people who’ve been detained by the Chinese authorities and who are suspected of being harmful to state security or to national interests may not be allowed to leave China.
Now we’ve got situation where, in 2007, you were arrested, you were detailed [sic] for six weeks, you were ill-treated during that time and they suspected you of being the person who wrote the anonymous letters. So, if you are deemed to be somebody who are – who is harmful to national interests, then this – the information is that you would not have been allowed to leave China. You would have been on a black list.
Now, do you want to say anything in relation to that? You don’t have to and if you wish to say something you can do so or you can ask some more time to respond [sic].
So this is the issue, that you left China on 10 or 11 December 2007, you were travelling with a passport issued in your own name and you had no problems leaving from the airport. Do you want to say anything about that?
32 In that passage, the Tribunal told the applicant that some of his evidence was inconsistent with country information which might mean that the Tribunal would form the view that the applicant was not a witness of truth.
33 The Tribunal then referred to the country information which was to the effect that the law in China prevented certain people from leaving China and those people include people that the Chinese authorities considered to be harmful to State security or national interests.
34 It was put to the applicant that if he had been arrested and detained for six weeks and suffered the ill-treatment of which he complained as a result of writing anonymous letters, the country information suggested that he would not have been allowed to leave China. He was asked to comment on that. He was also asked to comment on how it was that he was able to travel on his own passport and had no problems leaving from the airport.
35 It was contended before the Federal Magistrate that the information which was put to the applicant in that passage was information notified to him pursuant to s 424AA of the Act and that the Tribunal failed to ensure that, as far as reasonably practicable, the applicant understood the relevance of the criteria for preventing departure from China under Article 8V of the Chinese “Law of the Control of Entry and Exit of Citizens”.
36 The submission to the Federal Magistrate was:
13. The applicant submitted in particular that the Tribunal did not inform him that under that law:
a) a Chinese citizen would be prohibited from departing from China where that citizen “might cause danger to national security or cause extreme harm to national interests”;
b) a Chinese citizen would be prohibited from departing from China where the danger or harm he or she might cause is harm in question was harm that that person might cause “after departing the country” [sic]; and
c) the relevant judgment about possible harm to national security/interests was one that must be formed by the “relevant organs of the State Council”.
37 The Federal Magistrate concluded that the applicant’s submission was to particularise and expand on information which the Tribunal had paraphrased or summarised in what it put to the applicant. He concluded that whilst the Tribunal could have put what was said to be what should have been put, the Tribunal could not be criticised for summarising the information in the way that it did. For those reasons, the Federal Magistrate concluded that even if the Tribunal had an obligation to give information pursuant to s 424AA(b)(i) that it did not breach that obligation. However, the Federal Magistrate also concluded that the information in question was independent country information which the Tribunal had no obligation to notify to the applicant. He followed a decision of Cowdroy J in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 in which his Honour concluded that the exclusions contained in s 424A(3) applied with equal force to s 424AA. The Federal Magistrate concluded that that decision stood for the proposition that independent country information did not have to be provided to an applicant under s 424A(1) and s 424AA. The Federal Magistrate analysed for himself the two sections and came to the same conclusion as Cowdroy J and, in doing so, disagreed with a decision of Driver FM in SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 to the contrary.
38 In the applicant’s draft notice of appeal on this application two grounds are raised. They are:
(a) That the Federal Magistrate erred in holding that the exemption in section 424A(3)(a) of the Migration Act 1958 operated so as to exempt country information from the operation of section 424AA of the same Act.
(b) That the Federal Magistrate erred in finding that the Refugee Review Tribunal ensured as far as reasonably practicable that the applicant understood why the country information presented to him was relevant to the review by the RRT.
39 The grounds take issue with the two grounds upon which the Federal Magistrate dismissed the application for judicial review.
40 Section 424AA and s 424A are within Division 4 of Part 7 of the Act. Section 422B provides that that Division is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. The matter with which it deals is the manner in which the Tribunal must proceed on an application for review.
41 The legislative history of the two sections under consideration is worth recording. Section 424A was introduced into the Act by s 3 of Schedule 3 of Part 1 of the Migration Legislation Amendment Act (No 1) 1998 (Cth) on 11 December 1998.
42 Section 424A now reads:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to 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.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(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 for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
43 It is to be noted that s 424A(2A) was introduced into the Act by the Migration Amendment (Review Provisions) Act 2007 (Cth) (the second amending Act) on 29 June 2007 at the same time as s 424AA was enacted. The subsection and the section are complementary. Section 424A(2A) excuses the Tribunal from compliance with the obligations in s 424A(1) if the Tribunal proceeds in accordance with s 424AA. Section 424AA provides:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear 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) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
44 The sections are markedly different in their purpose. Section 424A is mandatory in its terms and imposes a procedural obligation on the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review. It also requires the tribunal to invite the applicant to comment on the information or to respond to it.
45 Section 424A(3) excises from the information that must be given to the applicant the particular information in the subsection. Section 424A(3)(a) specifically excludes country information from the information which must be given under s 424A(1). Section 424A(3)(b) excludes from the information that must be supplied by the Tribunal to the applicant, information that the applicant gave for the purpose of the application for review. Section 424A(3)(ba) which was first enacted in the second amending Act also excludes information that the applicant gave during the process that led to the decision under review other than information that was provided orally by the applicant to the Department.
46 The purpose of paragraphs (b) and (ba) of s 424A(3) is clear enough. It is to exclude from the information which must be given to the applicant information which the applicant himself or herself gave for the purposes of the application and the processes following the application. The Tribunal is relieved of the responsibility of telling the applicant that which the applicant told either the Tribunal or the Department in writing.
47 Because compliance with the natural justice hearing rule by the Tribunal requires the Tribunal to comply with any mandatory provision in Division 7, the Tribunal must comply with s 424A(1). The obligations in s 424A(1) can be discharged by giving the applicant the information and the invitation in one of the methods specified in s 441A or, if the applicant is in immigration detention, by the method prescribed for the purpose of giving documents to a person in immigration detention: s 424A(2).
48 Prior to the enactment of s 424AA and s 424A(2A), the Tribunal could only comply with the obligation in s 424A(1) by giving the information and invitation to the applicant in one of the ways prescribed in s 424A(2).
49 However, since the enactment of s 424AA and s 424A(2A), the Tribunal does not have to comply with s 424A(1) if the Tribunal proceeds in accordance with s 424A(2A).
50 Section 424A(2A) is engaged “if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under s 424AA”. Section 424A(2A) does not, on the face of it, require the Tribunal to comply with s 424AA(b)(i) before s 424A(2A) is engaged but I think, although it does not need to be decided on this application, that it is implicit in s 424A(2A) that compliance with s 424A(1) is not excused unless there is compliance in all respects with s 424AA.
51 Section 424AA is not cast in the mandatory terms of s 424A. At least s 424AA(a) is not. Instead, s 424AA(a) permits the Tribunal, where an applicant is appearing before it pursuant to an invitation under s 425, to orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. Section 424AA(a) is facultative. It permits the Tribunal to adopt a different procedure to the procedure which is mandatory under s 424A. It is entirely discretionary.
52 However, if the Tribunal resorts to using s 424AA(a), it must comply with s 424AA(b). So whilst s 424A(a) is permissive if it is invoked, the Tribunal must comply with s 424AA(b). That is why I have construed s 424A(2A) as I have.
53 Section 424AA(a) assumes that s 424A has not been complied with, at least in relation to the information which is orally given pursuant to s 424AA(a). There would be no point in the Tribunal resorting to s 424AA(a) if the Tribunal had already given the information to the applicant in accordance with s 424A(1) and by the processes in s 424A(2). Section 424AA does not, of itself, cast any obligation upon the Tribunal to provide to the applicant any of the information which the Tribunal does not have to provide under s 424A(3). That is because s 424AA does not oblige the Tribunal to give any information to the applicant. It merely permits it to do so.
54 The applicant contended that the absence of an equivalent of s 424A(3) in s 424AA means that the Tribunal must orally give the information in s 424A(3). That contention must be rejected. As already noted, s 424AA(a) is facultative. It permits the Tribunal to give the information in s 424AA(a) to the applicant. It does not oblige the Tribunal to give the applicant orally any information. Therefore, there is no obligation to give the information in s 424A(3) orally to the applicant. Because s 424A is not mandatory, there is no reason to exclude from the information which is to be given to the applicant the information in s 424A(3). There is no point in excluding any information when in fact no information has to be given pursuant to this section.
55 A failure to comply with s 424AA merely means that s 424A(2A) is not engaged and the Tribunal is not excused from compliance with s 424A. That then means the Tribunal must comply with s 424A. If the Tribunal is obliged to comply with s 424A it does not have to give the information in s 424A(3). Whichever way the Tribunal proceeds, whether under s 424A or s 424AA, the Tribunal does not have to give the information in s 424A(3). When the sections are understood that way, it can be seen that there was no reason to include the equivalent of s 424A(3) in s 424AA.
56 Moreover, why would Parliament require the Tribunal to give the information in s 424A(3) if the Tribunal were giving information orally pursuant to s 424A(a), but not give the information in s 424A(3) if the Tribunal were proceeding to give the information in writing in compliance with s 424A(1) utilising s 424A(2)? There is no reason for the distinction.
57 The applicant’s counsel, Mr Crossland, put as an alternative construction that the Tribunal when proceeding under s 424AA did not have to provide s 424A(3) information but if it so chose and then did not comply with s 424AA(b), that would amount to jurisdictional error.
58 That contention must be rejected for the reasons already given. A failure to comply with a section which permits the Tribunal to give information such as s 424AA cannot amount to jurisdictional error. A failure to comply with s 424AA merely means that the Tribunal must ensure that it complies with s 424A because s 424A(2A) cannot be relied upon to excuse compliance with s 424A(1) and (2).
59 Jurisdictional error will be demonstrated where the Tribunal does not comply with s 424A and that will occur if it does not give clear particulars of any information of the kind in s 424A(1)(a), ensuring as far as is reasonably practicable the applicant has the understanding addressed in s 424A(1)(b) and inviting the applicant to comment or respond to the information (s 424A(1)(c)), and in the manner prescribed in s 424A(2). However, the Tribunal’s obligation to proceed in that way ceases if the Tribunal proceeds in accordance with s 424AA.
60 Moreover, the contention, if accepted, leads to an absurd construction of the sections. If at the hearing the Tribunal did not give s 424A(3) information, that would not amount to jurisdictional error but if the Tribunal did provide information which it was not obliged to provide but did not conform with s 424AA(b), that would amount to jurisdictional error.
61 If the applicant’s contention were correct, the following would be the case. Tribunal 1 could conform with s 424A and would not need to provide any s 424A(3) information. Tribunal 2 could conform with s 424AA and not give any s 424A(3) information. Because Tribunal 2 had conformed with s 424AA, it would not need to give the information pursuant to s 424A(1): s 424A(2A). If Tribunal 3 however proceeded in accordance with s 424AA but gave, for example, country information which it was not obliged to give, its conduct would amount to jurisdictional error if it did not under s 424AA(b) explain the import of the information it was not obliged to give. That cannot be right.
62 In my opinion, s 424AA does not oblige the Tribunal to provide any of the information in s 424A(3) if the Tribunal proceeds in accordance with s 424AA(a) even if it considers that information to be the reason or part of the reason for affirming the decision under review.
63 The applicant’s contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.
64 Because there was no obligation upon the Tribunal to ensure, as far as reasonably practicable, that the applicant understood the country information presented to him because there was no obligation upon the Tribunal to provide the applicant with the country information, the second ground therefore does not arise but I shall nonetheless address it briefly.
65 The relevant passage, to which I have referred above, shows that the Tribunal explained to the applicant the relevance of the country information in question.
66 The applicant was put on notice that the Tribunal was concerned that the applicant’s story was inconsistent with the country information and that inconsistency might lead the Tribunal to disbelieve the applicant. The country information which was disclosed indicated that the law in the People’s Republic of China prevented persons who had been detained by the authorities or considered harmful to State security or national interests from leaving China. The applicant’s claim was that he was a person of that kind, yet he was able to leave China freely. The Tribunal made it clear that that inconsistency was a matter that would lead the Tribunal to disbelieve the applicant.
67 It follows therefore the second ground must fail because the Federal Magistrate did not err in finding that the Tribunal ensured that, as far as reasonably practicable, the applicant understood why the country information presented to him was relevant to the review.
68 In my opinion, there is no prospect of an appeal succeeding and, in those circumstances, it would be inappropriate to extend time for the filing of the notice of appeal. The application to extend time to file a notice of appeal must be dismissed.
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I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. |
Associate:
Dated: 17 March 2009
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Counsel for the Applicant: |
Mr A Crossland |
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Solicitor for the Applicant: |
City Law Solicitors |
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Counsel for the First and Second Respondents: |
Ms E Warner-Knight |
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Solicitor for the First and Second Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
27 February 2009 |
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Date of Judgment: |
17 March 2009 |
