FEDERAL COURT OF AUSTRALIA

SZLSM v Minister for Immigration and Citizenship [2009] FCA 537

MIGRATION – whether appellants’ father acted as common law guardian – whether information provided by appellants’ father was information for purpose of s 424A of Migration Act 1958 (Cth) – whether letter sent to appellants’ father was information provided to the appellants for purposes of s 424A(2) of Migration Act – whether jurisdictional error to provide information for purposes of s 424A(1) of the Migration Act if information not required to be provided

MIGRATION – whether Tribunal intended to use discretionary provision of s 424AA of Migration Act - whether ‘information’ is the same for s 424A and s 424AA of Migration Act – whether information had to be provided to appellants

MIGRATION – whether a further ground of review that was not expressly made was apparent on evidence before Tribunal

PRACTICE AND PROCEDURE – whether to refer an appeal from a migration decision of the Federal Magistrates Court of Australia to a Full Bench of the Full Federal Court – s 25(1AA)(b) of Federal Court of Australia Act 1976 (Cth)

Australian Citizenship Act 2007 (Cth)

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (UN)

Federal Court of Australia Act 1976 (Cth) s 25(1AA)(b)

Migration Act 1958 (Cth) ss 36(2)(b), 78, 91R(1), 189, 424A(1), 424A(2), 424A(3), 424(a), 424AA(b)(i), 424AA(b)(ii), 425

Migration Amendment (Review Provisions) Act 2007 (Cth)

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Man Chi Christine Chung v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal [2006] FCA 1317

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152

SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609

SZFSV v Minister for Immigration and Citizenship [2007] FCA 1860

SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506

SZIZO and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 152

SZJHJ v Minister for Immigration and Citizenship & Anor [2008] FMCA 1044

SZJZB and Another v Minister for Immigration and Citizenship and Another (2008) 105 ALD 226

SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036

SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193

SZLKY v Minister for Immigration and Citizenship [2008] FCA 1755

SZLQD v Minister for Immigration and Citizenship [2008] FCA 739

SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384

SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

Re Woolley and Another; Ex parte Applicants M276/2003 (2004) 225 CLR 1

Wettig v Langdon (1885) 11 VLR 530

SZLSM and SZLSN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1397 of 2008

COWDROY J

25 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellants pay the costs of the First Respondent in the amount of $2,600 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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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REASONS FOR JUDGMENT

1                          The appellants appeal from the decision of Federal Magistrate Nicholls delivered on 25 August 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 20 November 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellants.

BACKGROUND

2                          The appellants are two young children, a brother and sister, who were born in Australia on 20 March 1999 and 8 May 2005 respectively. Under the provisions of the Australian Citizenship Act 2007 (Cth) the appellants are not Australian citizens. The appellants’ parents are both Bangladeshi nationals who arrived in Australia in February 1992, and each of whom have unsuccessfully applied for protection visas in Australia. Pursuant to s 78 of the Migration Act 1958 (Cth) (‘the Act’) both appellants were granted Bridging E visas, as held by their parents, at birth. The appellants are included in their mother’s Bangladeshi passport, and are accordingly recognised as Bangladeshi nationals.

3                          On 4 June 2007 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused such application on 14 August 2007. On 5 September 2007 the appellants applied to the Tribunal for a review of that decision.

4                          The appellants claimed that their father, who arrived in Australia in 1992, was a well-known political activist in Bangladesh. They claimed that they feared harm if they were to return to Bangladesh because of their father’s involvement in politics. They claimed that although their father’s application for a protection visa had been refused, the situation in Bangladesh had changed ‘significantly’. They claimed that, given ‘the law and order situation’ in Bangladesh, the relevant authorities would be unable or unwilling to provide ‘security’ to the appellants. The appellants further claimed that they could not speak, read or write Bengali and that they would have difficulty in adapting to life in Bangladesh.

THE TRIBUNAL DECISION

5                          At the Tribunal hearing the father of the appellants gave evidence on their behalf. The Tribunal found that the appellants’ father was not a credible witness. The Tribunal found that his evidence was often confused and non-responsive. The Tribunal did not accept that the appellants’ father had been involved in politics in Bangladesh. The Tribunal therefore did not accept that the appellants had a well-founded fear of being persecuted in Bangladesh for a Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (UN) (‘Convention’) reason.

6                          The Tribunal accepted that the appellants may find it difficult to adapt to living in Bangladesh. However the Tribunal did not consider that any such difficulties would amount to ‘serious harm’ within the meaning of s 91R(1) of the Act or that any such harm would be for a Convention reason. The Tribunal accordingly affirmed the decision of the Minister not to grant the appellants Protection (Class XA) visas.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

7                          By application filed in the Federal Magistrates Court of Australia on 5 December 2007 and by amended and further amended applications filed in Court on 5 June 2008 the appellants sought judicial review of the Tribunal decision.

8                          Before Nicholls FM the appellants claimed that the Tribunal had breached s 424A of the Act. The appellants submitted that the Tribunal considered the appellants’ father to be their representative, yet he was not appointed by them as their representative and was therefore not able to lawfully represent them before the Tribunal. The appellants alleged that the evidence provided by the appellants’ father was not information provided by the appellants and accordingly was not excluded from the requirements of s 424A(1) of the Act by s 424A(3)(b). Accordingly the Tribunal was required by s 424A(1) of the Act to provide the appellants with details of ‘this adverse information’ and to invite them to comment upon it.

9                          Secondly, the appellants alleged that the Tribunal failed to comply with s 424AA of the Act as it relied on ‘independent information’ and ‘previous claims’ but failed to provide adequate particulars of such information to the appellants, failed to explain ‘why it was relevant’ and failed to provide an opportunity to the appellants to comment upon it.

10                        The appellants also claimed that the Tribunal failed to consider ‘all integers’ of their claims, particularly their claim to fear harm ‘due to them being children born outside Bangladesh’.

11                        Nicholls FM found in relation to the first ground that the Tribunal had not appointed the appellants’ father as their representative. Rather, the appellants’ father did this himself when he signed and lodged the Application for Review form. His Honour stated that the appellants’ father acted in his capacity as the appellants’ common law guardian, and was responsible for the entirety of the conduct of the review before the Tribunal. In the circumstances it was therefore correct for the Tribunal to have treated the appellants’ father’s evidence as being the evidence of the appellants. Such information was thereby excluded from the operation of s 424A(1) of the Act by s 424A(3)(b).

12                        Nicholls FM observed in relation to the second ground that ‘information’ for the purposes of s 424AA of the Act has the same meaning as ‘information’ in s 424A of the Act citing SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 at [18]. His Honour found that there was no obligation to give the independent country information to the appellants under s 424AA as that information, being information not specifically about the appellants, was excluded from s 424A(1) of the Act by reason of s 424A(3)(a) of the Act. His Honour noted that, in any event, the independent country information was put to the appellants’ father at the hearing. His Honour also found that neither the independent country information nor the appellants’ father’s ‘previous claims’ that he had made plans to leave Bangladesh were the reason or part of the reason for affirming the delegate’s decision.

13                        Nicholls FM then considered the appellants’ argument that the Tribunal failed to consider the appellants’ claim to fear harm ‘due to them being children born outside Bangladesh’. His Honour was satisfied that the Tribunal had clearly understood the extent of the appellants’ claims, both as expressly put, and as could be said to arise on the materials before it. His Honour found that there was no material before the Court that gave rise to any claim by the appellants to fear harm because they were children born outside Bangladesh, or because they were members of any particular social group.

14                        Nicholls FM found no jurisdictional error in the Tribunal decision and dismissed the application.

APPEAL TO THIS COURT

15                        On 5 September 2008 the appellants filed in this Court a Notice of Appeal from the decision of Nicholls FM. The appellants raise the following three grounds of appeal:

1.      The Federal Magistrate erred in finding that the Tribunal did not fail to comply with s 424A of the Act in circumstances where it was held that the appellants’ father’s evidence fell within the exception contained in s 424A(3)(b) of the Act. The appellants contend that there is no authority supporting the proposition that the common law guardian principle displaces or prevails over the statutory procedural fairness requirements.

2.      The Federal Magistrate erred in finding that the Tribunal did not fail to comply with s 424AA of the Act.

3.      The Federal Magistrate erred in finding that the Tribunal had ‘correctly applied the test of persecution and whether the appellants belonged to a particular social group – viz., Bangladeshi minors born outside of Bangladesh’.

16                        The judgment in this appeal was reserved pending the decision of the Full Bench of the Full Federal Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46. Following the handing down of that decision, the appellants and respondents were invited to make further submissions in light of that authority regarding ground two of the appeal. Both parties made submissions. The appellants submitted that the present appeal ought to be referred to the Full Bench of the Full Court so that it could be invited to reconsider the correctness of its decision in SZMCD.

FINDINGS

Ground 1

Common law guardian

17                        In the decision of the High Court of Australia in Re Woolley and Another; Ex parte Applicants M276/2003 (2004) 225 CLR 1at [103], McHugh J said:

Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision.

18                        Nicholls FM applied such principle to the circumstances of the appellants’ family, whilst observing that Re Woolley was decided in the context of s 189 of the Act. His Honour concluded that the appellants’ father undertook the role of guardian for the appellants when he signed the Application for Review form and lodged it with the Tribunal. His Honour also noted that the appellants’ response to the Tribunal’s s 424A letter was signed by the appellants’ father and that the Response to Hearing Invitation Form was also signed by the appellants’ father. Further, when the Tribunal hearing commenced the appellants’ father confirmed that ‘he was giving evidence on behalf of’ the appellants.

19                        His Honour found that at all times the appellants’ father acted in the capacity of the appellants’ common law guardian and was their ‘representative’.

20                        The appellants submit that Nicholls FM erred in characterising the appellants’ father as their common law guardian by relying upon the decision of the High Court in Re Woolley. The appellants submit that such authority does not apply as the common law principle of guardianship is overridden by the inconsistent provisions of ss 36(2)(b) and 424A of the Act. Section 36(2)(b) of the Act specifies the criteria for a protection visa and allows, inter alia, for dependants to apply for a protection visa in their own right and name, and s 424A refers to ‘an applicant’ without any qualification that such applicant must not be legally incapacitated. The appellants accordingly submit that ‘express evidence’ was required before Nicholls FM could characterise the appellants’ father as their common law guardian.

21                        The Court finds that the appellants’ submission represents a misconception of the provisions of the Act. The Court acknowledges that s 36(2)(b) of the Act provides that an applicant may apply for a protection visa in his or her own right, regardless of any legal incapacity. In this regard, the Act is ‘clear and valid’ (see Re Woolley at [194] per Kirby J) and overrides any common law principle requiring an infant to act through a guardian: see, for example, Wettig v Langdon (1885) 11 VLR 530. However, the Act does not purport to prevent an infant from acting through their guardian, nor do the provisions of s 424A restrict the operation of the common law principle of guardianship.

22                        The appellants rely upon the finding of McHugh J in Woolley at [101] in which his Honour said:

The parens patriae jurisdiction of the courts cannot be invoked to read down the legislative direction that children who are unlawful non-citizens must be detained in immigration custody.

23                        It is not apparent why this passage is cited, other than as an example of where the Act was shown to displace the common law. Regardless, the extract of McHugh J is not relevant to the issue of the guardianship of the appellants’ father, his capacity to make an application for a protection visa for the appellants, and to conduct the application for review on their behalf.

24                        The Court observes that there is no provision in the Act which overrides the common law principle that a guardian may be characterised as acting for his or her children where his or her conduct warrants such a characterisation. The first and second appellants were eight and two years old respectively at the time. The Court considers that the appellants’ father had clearly adopted the role of a guardian by signing the necessary application form, by corresponding with the Tribunal and by giving oral evidence on their behalf.

25                        Accordingly, the Federal Magistrate was entitled to consider whether the appellants’ father was acting as a common law guardian. The Court adopts the approach of Smith FM in SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036 at [28]-[30], in which his Honour found that an application brought by a mother for herself and her infant daughter should be treated as if the mother was the guardian of her child.

26                        In the absence of any evidence that the appellants were capable of conducting their appeal, the Court is unable to find any error in Nicholls FM’s finding that the appellants’ father was acting as their guardian and representative. His Honour’s application of Re Woolley was without error.

Information provided by the appellants’ father

27                        In view of the above finding that the appellants’ father was acting as the appellants’ common law guardian, any information provided to the Tribunal by the appellants’ father on their behalf was not required to be given to the appellants under s 424A(1) of the Act because of the exception contained in s 424A(3)(b). However, the Court will consider the appellants’ submission regarding the information provided to the Tribunal by the appellants’ father.

28                        The appellants submit that Nicholls FM, by relying upon the decision of the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [17]-[18], erred in finding that the evidence provided by the appellants’ father was not ‘information’ for the purpose of s 424A(1) of the Act.

29                        Section 424A(1) requires the Tribunal to give to an applicant ‘particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review’.

30                        In SZBYR at [17]-[18] the High Court found that a Tribunal’s disbelief of the appellants’ evidence is not ‘information’ for the purpose of s 424A, because the evidence ‘did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations’ (see SZBYR at [17]). The appellants seek to distinguish SZBYR from the current proceeding on the basis that in the present proceedings the Tribunal had made findings that the appellants’ father’s evidence was confused and non-responsive whereas the inconsistency considered in SZBYR arose from the evidence before the Tribunal compared to that provided in the protection visa application. The appellants claim that there is a distinction between the respective inconsistencies referred to by the Tribunals in each matter in reaching their decisions.

31                        The principle arising in SZBYR that inconsistencies, and the Tribunal’s reasoning, does not comprise ‘information’ within the meaning of s 424A(1), has been followed by this Court regardless of the specific nature of the doubts, inconsistencies or deficiencies in evidence that led the Tribunal to reach an adverse credibility finding. The reason the High Court in SZBYR excluded such things from the definition of ‘information’ in s 424A(1) was not based on the inconsistencies which the Tribunal relied upon to form an opinion on credibility in the appeal before it, but rather upon an awareness of the problems which would arise if adverse credibility findings and the Tribunal’s reasoning could be said to constitute ‘information’. As the High Court said at [18]:

…if the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but each step in its reasoning process.

Recent decisions of this Court have adopted such principle: see SZLKY v Minister for Immigration and Citizenship [2008] FCA 1755 at [30] and SZJZB and Another v Minister for Immigration and Citizenship and Another (2008) 105 ALD 226 at [18]. The appellants’ attempt to distinguish the circumstances in the current appeal from those in SZBYR is to demonstrate a misconception of the High Court’s reasoning and is rejected.

32                        Accordingly, any factual distinction drawn between SZBYR and the current proceeding does not preclude Nicholls FM from relying upon the principle articulated by the High Court in SZBYR at [17]-[18].

33                        The appellants further submit that their claim that their father’s evidence constituted information for the purpose of s 424A(1) is supported by the decision of SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506. In that decision the Court found that one of two appellants had not been provided with an opportunity to comment upon information which was relevant. In the present appeal, this consideration does not arise since the Tribunal’s letter forwarded to the appellants pursuant to s 424A(1) dated 21 September 2007 specifies the information upon which it might rely in reaching its decision to reject the appellants’ claims. The Tribunal’s letter was forwarded to the appellants’ father who was acting on their behalf, and the letter included the information provided by him to the Tribunal.

Breach of s 424A(1)(b) of the Act

34                        In support of the first ground of appeal the appellants further submit that the Tribunal’s s 424A letter failed to comply with s 424A(1)(b) of the Act because it failed to state explicitly the relevance to the Tribunal of the information concerning the fact that the appellants’ mother’s passport was issued by the Bangladesh High Commission in Canberra.

35                        The Tribunal’s s 424A letter relevantly included the following:

You provided with your application for the protection visa a copy of your mother’s passport, which indicates that the passport was issued by the Bangladesh High Commission in Canberra in May 2007.

36                        It explained that such information was relevant because ‘it may cause the Tribunal to find that [the appellants’ father] or [the appellants’ mother] did not have a genuine fear of persecution prior to their arrival in Australia or after their arrival in Australia’.

37                        The Court observes that the appellants provided a copy of their mother’s passport to the Department of Immigration and Citizenship for the purpose of their protection visa application.

38                        Section 424A(3) of the Migration Act relevantly provides:

(3)   This section [s 424A(1)] 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.

39                        The Court notes s 424A(3)(ba) of the Act only applies to applications for review lodged after 29 June 2007: see Migration Amendment (Review Provisions) Act 2007 (Cth). Such paragraph applies in this proceeding as the appellants filed their application for review on 5 September 2007.

40                        The passport was information provided ‘during the process that led to the decision that is under review’, namely the delegate’s decision made on 14 August 2007. Because of s 424A(3)(ba) of the Act the passport was excluded from the definition of ‘information’ for the purposes of s 424A(1) and was accordingly excluded from the operation of s 424A(1)(b). It was accordingly not necessary for the Tribunal to have referred to this issue in its letter issued under s 424(1)(a) of the Act.

41                        Further, no consequences flow from the fact that the Tribunal referred in its s 424A(1) letter to material which it was not obliged to supply. The Court respectfully adopts the findings of Nicholls FM in SZJHJ v Minister for Immigration and Citizenship & Anor [2008] FMCA 1044 at [81], [85]. His Honour held that the provision of material in a s 424A letter which is excluded from the operation of such section by s 424A(3) does not constitute a jurisdictional error on the part of the Tribunal.

Breach of s 424A(2) of the Act

42                        The appellants submit that the Tribunal’s s 424A letter failed to comply with s 424A(2) of the Act as such letter was addressed to the appellants’ father instead of being addressed to the appellants themselves when the appellants’ father had not been voluntarily appointed as the appellants’ representative for the purposes of the review application in the Tribunal. The appellants rely upon the decision of the Full Court in SZIZO and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 152.

43                        In view of the above finding, namely that the appellants’ father was their common law guardian, the appellants’ father’s nomination of himself as the authorised recipient must be deemed to have been a decision made by the appellants. It follows that the Tribunal was required to send all correspondence to the appellants’ father.

44                        The Court also considers that the present proceeding can be distinguished from SZIZO. In SZIZO the Tribunal was found to have erred because it did not forward its correspondence to the authorised recipient. In contrast, in this proceeding the Tribunal, as required by the Act, forwarded its correspondence to the authorised recipient. The appellants’ submission is accordingly rejected.

45                        The Court dismisses the first ground of appeal.

Ground 2: Failure to accord procedural fairness

46                        The appellants submit that Nicholls FM erred in finding that the Tribunal complied with s 424AA of the Act. The appellants submit that the Tribunal, by referring at the hearing to independent country information which suggested a strong link between Jamaat-e-Islami and the present government in Bangladesh, should have stated explicitly the relevance of such link to the appellants’ claimed fear of persecution in order to discharge its obligation under s 424AA(b)(i). That is, to ensure, as far as practicable, that the appellants understood why the information was relevant to the review. The appellants also claim that since they were not provided with an opportunity to comment upon such information as provided by s 424AA(b)(ii), this section was also not complied with.

47                        The appellants submit that ‘the fact that the Tribunal does not record that it explicitly stated the relevance of the independent information strongly suggests that it was not explicitly stated by the Tribunal at the hearing’. Having embarked upon a discussion of the country information, it is submitted that the Tribunal was obliged to explicitly state the relevance of that information to the appellants. The appellants challenge his Honour’s finding that the information was ‘clearly put’ to the appellants’ father at the hearing. Under this ground of appeal the appellants submit that it is such information, rather than the Tribunal’s adverse finding of the father’s evidence that is at issue. The appellants submit that Nicholls FM erred in finding that the ‘information’ set out in [47] above was not ‘information’ for s 424AA purposes.

48                        The Tribunal decision records the following:

The Tribunal noted that independent information suggests that there is a strong link between the current government and JeI [Jamaat-e-Islami] and it is in a much stronger position than the other parties. [The appellants’ father] said that maybe JeI made a link but personally he is against it. The Tribunal noted that [the appellants’ father] claims persecution because of his work for JeI and given the current political situation, the Tribunal may find that there is no real chance that he will face persecution if he returned to Bangladesh.

49                        Section 424AA of the Act applies to applications for review lodged after 29 June 2007: see Migration Amendment (Review Provisions) Act; see also SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [13]. Since the application for review was filed on 5 September 2007, s 424AA is operative to this appeal.

50                        Section 424AA provides that 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’: see s 424AA(a). Additionally, the Tribunal must ensure as far as is reasonably practical 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: see s 424AA(b)(i).

51                        The Court observes that it is uncertain whether the Tribunal intended to raise the independent country information with the appellants’ father with the intention of discharging its obligations under s 425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152) or alternatively whether by raising the independent country information with the appellants’ father at the hearing, the notification procedure provided in s 424AA of the Act was required.

52                        If the former were the case and the Tribunal did not intend to activate the discretionary notification procedure contained in s 424AA, the Tribunal was merely discharging its obligations under s 425: see SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589 at [24]. Section 424AA is engaged only where the Tribunal clearly elects to exercise its discretion by following the procedure specified in that section.

53                        In this instance the Court concludes from the Tribunal’s decision that it did not ‘orally give to the applicant clear particulars of the information’ as required by s 424AA. Rather, it merely invited the appellants’ comment upon independent country information. Pursuant to s 424A(3)(a), the obligation under s 424A(1) has no application in respect of independent country information. Accordingly, on this basis s 424AA of the Act did not apply.

54                        However, even if the Tribunal had engaged s 424AA of the Act, the Court observes that the exclusions contained in s 424A(3) apply with equal force to s 424AA: see SZLXI at [27]. Accordingly, as independent country information is excluded from the operation of s 424A(1) of the Act by s 424A(3)(a), such information is also excluded from the operation of s 424AA of the Act. The Tribunal was accordingly not required under s 424AA of the Act to provide the independent country information to the appellants’ father or to explain its relevance to the decision under review. There was accordingly no breach of s 424AA.

55                        In support of the finding that s 424AA has not been breached, the Court refers to the recent decision of the Full Bench of the Full Federal Court in SZMCD. In that decision Tracey and Foster JJ said at [103]:

(a)     The Tribunal has a discretion as to whether it will go down the path of providing oral particulars as contemplated by s 424AA;

(b)     Once the Tribunal invokes s 424AA, it is required to comply with the whole of the section (both sub-pars (a) and (b) of s 424AA);

(c)     The only consequence of non-compliance with all of the requirements of s 424AA is that the Tribunal does not get the benefit of s 424A(2A);

(d)     In that event, the Tribunal must then comply with the provisions of s 424A(1), compliance with which is still subject to subs (3); and

(e)     Subsection (3) exempts the Tribunal from having to comply with s 424A(1) if the relevant information is country information.

In this way, as we have concluded, s 424AA and s 424A work in a complementary manner--s 424A containing the obligatory requirements (subject to the stated exceptions) with which the Tribunal is bound to comply and s 424AA making available to the Tribunal a means of not having to comply with those requirements provided that it elects to invoke s 424AA and it complies with the various conditions specified in that section.

We reject the notion that the principles developed in this Court in respect of s 424 can be applied by analogy to s 424AA. The subject matter and purpose of s 424 are very different from the subject matter and purpose of s 424AA.

56                        The decision in SZMCD is an authorative determination that the exceptions to s 424A(1) apply if s 424AA is engaged and it is binding on this Court. It follows that even if s 424AA was engaged, the information which the appellants claim was not submitted to them was country information.

Should the matter be referred to the Full Bench of the Full Federal Court?

57                        The Court notes the further submissions of the appellants requesting the Court to submit this issue for reconsideration by the Full Bench of the Full Federal Court. The relevant provision is s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth)which provides that an appeal from a migration judgment of the Federal Magistrates Court can be heard by a Full Bench where ‘a judge considers that it is appropriate for the appellant jurisdiction of the Court…to be exercised by a Full Court’.

58                        The relevant inquiry is whether it is ‘appropriate’. Some examples of decisions in which it was considered appropriate were SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193, SZFSV v Minister for Immigration and Citizenship [2007] FCA 1860and Man Chi Christine Chung v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal [2006] FCA 1317. In SZKJI, Gyles J referred the appeal to the Full Bench because a previous Full Bench decision had been brought into question as a result of changes in the Act and subsequent decisions of other judges of the Federal Court. In those circumstances his Honour considered that the Full Bench decision needed to be reviewed and the appropriate mechanism was by way of another Full Bench decision.

59                        In SZFSV Gray J referred the appeal to the Full Bench because an important question of law arose, there was conflicting single judge authority and there was no clear Full Court or High Court guidance on the question. In Chung Tracey J referred the matter to the Full Bench because it involved a novel question of law.

60                        The present appeal stands in stark contrast to the authorities cited. The decision of the Full Bench in SZMCD has confirmed authorities of seven different judges in this Court concerning the interpretation of s 424AA of the Act and its relationship to s 424A (see [99]). The decision of the Full Bench was unanimous and the decision was handed down only a little more than a month ago. There is simply no valid reason for this Court to find that it is appropriate to refer the matter to the Full Bench.

Ground 3

61                        The appellants submit that Nicholls FM erred in finding that the Tribunal correctly applied the test for persecution. The appellants claim that his Honour did not properly consider the particular attributes of the appellants, namely that the appellants are members of a minority group, being children born outside of Bangladesh, and that they would therefore not be able to obtain effective protection from the authorities. For convenience such claim will be hereafter referred to as ‘the additional claim’.

62                        It was not apparent to Nicholls FM that the additional claim had been articulated before the Tribunal as a separate claim. His Honour observed that the assertions that appellants feared harm because their father had been involved in a political movement were included in the appellants’ claim.

63                        The Tribunal decision records the appellants’ claim that ‘they [the appellants] were born in Australia, they are not familiar with Bangladesh, its language and culture and…they will be unable to settle there’. The Tribunal concluded that any difficulties encountered by the appellants in settling in Bangladesh would not amount to ‘serious harm’ within the meaning of s 91R(1) of the Act and that any ‘such harm would not be for a Convention reason’. The Court considers that such finding is without error.

64                        The appellants alternatively submit that the additional claim extends beyond the scope of the Tribunal’s consideration. The appellants submit that by reason of their being born outside of Bangladesh they would be unable to access effective protection from the authorities in Bangladesh. The appellants rely upon the decision of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] in submitting that the Tribunal should have discerned and considered the additional claim even though it was not explicitly raised before the Tribunal. However, the appellants do not point to any material that was before the Tribunal which the Federal Magistrate did not consider in his assessment and rejection of the appellants’ submission before him that such a claim was apparent before the Tribunal.

65                        While the exact standard of ‘apparentness’ which is necessary before a Tribunal must consider a claim is not clear, the Court observes that the Tribunal is not required to make the appellants’ case for them: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 at [40]. The Tribunal’s role is to address the issues put before it: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78] per Kirby J. It is for the appellants to advance their arguments and evidence to support their contention that they have a well-founded fear of persecution: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.

66                        The Full Court in NABE at [58] said that an unarticulated claim will only attract the review obligation of the Tribunal when such claim is ‘apparent on the face of the material before the Tribunal’. The Full Court in NABE at [60] also said that ‘[i]t [the Tribunal] is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it’.

67                        Nicholls FM found that there was no available material that gave rise to this additional claim. In the absence of any evidence from the appellants that there was material that the Federal Magistrate failed to consider, this Court also considers that the additional claim was not apparent on the material before the Tribunal. As referred to above, the only identifiable claim that arose from the appellants’ claim that ‘they were born in Australia’ was considered and determined by the Tribunal without error.

68                        The Court concludes that neither the Tribunal nor Nicholls FM was in error.

CONCLUSION

69                        It follows from the above that the appeal must be dismissed with costs.

Associate:

Dated:         25 May 2009