FEDERAL COURT OF AUSTRALIA

CJU17 v Minister for Immigration and Border Protection [2019] FCA 875

ORDERS

THE COURT ORDERS THAT:

1.    The time for leave to appeal be extended to allow the appeal to be filed and served.

2.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

1    On 7 June 2019, I made orders in this matter to the effect that the time for leave to appeal was extended to allow the appeal to be filed and served, but that the appeal was dismissed with costs. These are the reasons for those orders.

INTRODUCTION

2    In the matter before me the Applicants seek an extension of time in which to file a notice of appeal against a decision of a judge of the Federal Circuit Court dated 17 December 2018 and published as CJU17 & Ors v Minister for Immigration & Anor [2018] FCCA 3742. The Applicants filed their notice of appeal seven days out of time. In the decision the subject of the proposed appeal, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) to affirm a decision of a delegate of the First Respondent (the ‘Minister’) to refuse to grant the Applicants visas under s 65(1)(b) of the Migration Act 1958 (Cth) (the ‘Act’).

3    The Applicants’ draft notice of appeal contains one proposed ground of appeal to the effect that the primary judge erred in not holding that the Tribunal had made a jurisdictional error by failing to comply with s 424A of the Act.

4    It is relevant to note that this attack on the Tribunal’s decision was not originally raised by the Applicants before the primary judge. Instead it was the Minister who, in fulfilling his obligations as a model litigant, raised a possible issue as to whether the Tribunal had complied with s 424A but nevertheless submitted that no such breach had occurred. As is apparent, this submission was ultimately accepted by the primary judge.

5    In written submissions, the Minister indicated he was prepared to consent to the extension of time but contended that the proposed appeal should be dismissed with costs.

BACKGROUND

6    The Applicants’ claims were summarised at [23]-[24] of the Tribunal’s reasons (and recited at [5] of the primary judge’s reasons). In very short compass, the First Applicant (who is the mother of the Second and Third Applicants) fears that if they are returned to their home country of India, she and her children will be subject to harm from her ex-husband and his family who seek to gain control over the First Applicant’s mother’s property.

7    The Tribunal’s reasons were summarised at [7]-[24] of the primary judge’s reasons. Relevantly, the Tribunal was not satisfied that the Applicants faced a real chance of serious or significant harm at the hands of the ex-husband or his family. It accepted that the ex-husband had been abusive before their divorce in 2006, and that the police had made an order that the ex-husband should not disturb the First Applicant again, but that after that point, the ex-husband appeared to respect the police order not to disturb the Applicants.

SECTION 424A ISSUE

8    Before the Federal Circuit Court, the Minister identified a possible issue as to whether the Tribunal had complied with s 424A of the Act in respect of certain evidence given by a witness, assigned the pseudonym ‘AB’, who was the First Applicant’s older sister’s husband.

9    Relevantly, s 424A provides that the Tribunal must, save for in certain circumstances:

(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.

10    At [50] of its reasons, the Tribunal recorded that:

[AB] told the Tribunal that the applicant’s ex-husband’s family had a past history and that the applicant’s ex-husband's had a previous wife who was killed. He believed that the previous wife had lost her life because of dowry issues, but that at the time the applicant married she was not aware of this incident but someone informed her as a warning to her to take care.

11    Then at [74] of its reasons, the Tribunal recorded the First Applicant’s belief as the circumstances of the death of her ex-husband’s previous wife:

She stated that his first wife died six months after the marriage and while the reason given for her death was miscarriage, she had in fact been forced to undergo an abortion because her ex-husband did not want children.

12    The Tribunal noted the ‘discrepancy’ between the competing versions of events but ultimately concluded that it did not accept the First Applicant’s claim that her ex-husband’s family had a history of perpetrating harm on others as credible, and that therefore, it did not accept that the Applicants would face a real chance of serious or significant harm if returned to India. It does not appear as though the Tribunal put the information from AB to the First Applicant in accordance with s 424AA nor did it send a letter to the First Applicant under s 424A.

13    The issue for determination before me is whether the Tribunal was required to put the information from AB to the First Applicant under s 424A(1) of the Act.

CONSIDERATION

14    The principles applicable to the operation of s 424A may be summarised as follows:

(1)    the operation of the section is to be determined ‘in advance – and independently – of the Tribunal’s particular reasoning of the facts of the case’ (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (‘SZBYR’) at [17]);

(2)    in order for the section to be engaged in respect of particular information, the information should contain ‘in [its] terms a rejection, denial or undermining’ of the visa applicant’s claims to satisfy the criteria for a visa (SZBYR at [17]);

(3)    the relevant ‘information’ in the context of the section must be ‘related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence’ (SZBYR at [18]) – information that ‘merely [goes] to credibility is not within the section’ (MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [29]); and

(4)    ‘information’, within the meaning of the section, does not encompass ‘intermediate findings of fact’ and ‘any process of comparison between the applicant’s answers and the factual statements [of third parties] with which those answers were compared’, and nor do such ‘factual statements’ of third parties themselves, ‘shorn of the analytical context in which they played their part’, necessarily constitute ‘information’ for the purposes of the section (SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at [104] (Buchanan J, with whom Perram J agreed)).

15    Further, in a similar case, Judge Driver of the Federal Circuit Court identified in SZVSP v Minister for Immigration [2016] FCCA 1339 that:

[a] useful test for distinguishing the claims material and the mere credibility material is to ask whether, if the information were believed and looked at in isolation (i.e. apart from any inconsistencies or comparisons with other material), would it harm the applicant’s case? If the answer is no, it is not “s 424A information”.

16    Applying that test, and considering AB’s evidence ‘in isolation’ and ‘apart from any inconsistencies or comparisons’ with the First Applicant’s own evidence, it becomes apparent that it did not ‘harm’ the Applicants’ case. Indeed, AB’s evidence tended to in fact support the view that the First Applicant’s ex-husband’s family had a history of causing harm to others (and therefore may harm the Applicants).

17    The Tribunal’s recording of the ‘discrepancy’ between the accounts of the First Applicant and AB of the ex-husband’s previous wife’s death merely went to the credibility of their respective evidence. In other words, AB’s evidence was not therefore information that, in its terms, would be the reason (or part of the reason) for affirming the decision under review.

18    Accordingly, the Tribunal did not fail to comply with s 424A(1) of the Act by not inviting the Applicants to comment on the evidence of AB, and the primary judge was correct to so conclude.

DISPOSITION

19    For the reasons given, the Court will extend the time to appeal but the appeal should be dismissed with costs.

Associate:

Dated:    7 June 2019