Hayelom v Minister for Immigration
[2018] FCCA 1010
•30 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAYELOM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1010 |
| Catchwords: MIGRATION – Judicial review – application for Other Family (Class BO) Remaining Relative (Subclass 115) visa – whether the Tribunal failed to comply with ss.359A and 359AA of the Migration Act 1958 (Cth) (“the Act”) – held that the information in question fell within the exception contained in s.359A(4)(a) of the Act – held no jurisdictional error – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA, 424A(3)(a) Migration Regulations 1994 (Cth), sch.2 cls.115.211, 115.221, sch.4 cl.4020 |
| Cases cited: Applicant S209 of 2003 v Refugee Review Tribunal [2006] FCAFC 181 SZNKW v Minister for Immigration and Citizenship [2010] FCA 55 |
| First Applicant: | KEBEDE GEBRU HAYELOM |
| Second Applicant: | BURUK GEBRU HAYELOM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 67 of 2016 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 November 2017 |
| Date of Last Submission: | 22 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Guo |
| Solicitors for the Applicants: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicants’ Amended Application filed on 21 November 2017 be dismissed.
The Applicants pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 67 of 2016
| KEBEDE GEBRU HAYELOM |
First Applicant
| BURUK GEBRU HAYELOM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated
14 December 2015, affirming a decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), dated 23 May 2014, refusing to grant the Second Applicant an Other Family (Class BO) Remaining Relative (Subclass 115) visa (“the visa”). The criteria for the grant of the visa are relevantly contained in cls.115.211 and 115.221 of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The Second Applicant, who is an Ethiopian national, applied for the visa on 3 April 2014. He was sponsored by his brother, the First Applicant. Under the relevant criteria, the visa can be granted to persons living outside Australia, whose “remaining relative” is an Australian citizen, Australian permanent resident or New Zealand citizen. The issue before the Tribunal was whether the First Applicant, as an Australian citizen, was the Second Applicant’s “remaining relative”, or whether other members of his family were alive and living in Ethiopia.
The Second Applicant claimed that his father, mother and sister had passed away in May 2009, February 2010, and March 2008 respectively. The Second Applicant also claimed that his only remaining family member was his brother (the First Applicant), who was living in Australia, and was an Australian citizen (Court Book (“CB”) 9, 15).
In support of his visa application, the Second Applicant did not provide any official death certificates. The Second Applicant provided two documents to the Tribunal. The first document was a translation of a statement dated 26 July 2013 issued by three judges of the 02 Kebele Social Court (a civil society entity in Ethiopia) (“the Kebele Court”), stating that his father, mother and sister had passed away, and each had been buried on the same day that they had died (CB 59-61). The second document was a letter from the St Mary Behan Oda Church (“the Church”) dated 4 July 2013, stating that his father, mother and sister had died, and were buried at the Church (CB 62).
On 25 April 2014, a delegate of the Minister (“the delegate”) corresponded with the Second Applicant regarding concerns with the Second Applicant’s evidence (CB 49-50), and invited him to comment. Relevantly, these concerns arose from:
a)the fact that the letter from the Kebele Court was produced at the Second Applicant’s request, and was not based on its own records, but on statements taken from three witnesses who could legally be friends or family of the Second Applicant;
b)the Church’s letter was also likely to have been written at the Second Applicant’s request;
c)that no death certificates had been provided;
d)it seemed unlikely that upon the death of each of his family members, they were able to have been buried that same day; and
e)the First Applicant (as the Second Applicant’s remaining relative in Australia) had stated in his permanent Partner visa application in June 2010 that their parents and sister were still alive, and living in Ethiopia.
The Second Applicant responded on 10 May 2014, stating that the documents he had provided were valid. He noted that it was part of the burial customs in his area that the deceased are buried immediately on the same day as they passed away (or the next day if the death occurred after 4pm). The Second Applicant further stated that the First Applicant had been a refugee in Sudan when their parents and sister died, and that the First Applicant did not know about those facts until later. The Second Applicant said that no further documents about the deaths or any illnesses could be provided, as they were not available (CB 54-55).
On 23 May 2014, the delegate refused to grant the Second Applicant the visa, because the delegate did not believe that his parents and sister were dead. The delegate also considered that the Second Applicant had provided false or misleading information to the Department in his application, and therefore did not meet Public Interest Criterion 4020 pursuant to reg.4020 of sch.8 to the Regulations (“PIC 4020”)
(CB 73-79).
The First Applicant applied for review of the delegate’s decision before the Tribunal on 23 July 2014 (CB 83-106). The following further material was provided to the Tribunal:
a)a letter from the First Applicant addressing parts of the adverse findings of the delegate (CB 114-115);
b)application forms for death certificates for the Applicants’ father, mother and sister (CB 116-121);
c)the name and information of a witness, handwritten by the First Applicant (CB 122-123); and
d)letters of support from the church attended by the First Applicant in Melbourne, Australia, and members of the Tigran Community Association in Victoria (CB 124-125).
The Tribunal held two hearings; the first was held on 19 June 2015, and the second was held on 20 November 2015. At both hearings, the First Applicant and witnesses gave evidence. The Applicants were represented by a migration agent, and further documents in support were provided to the Tribunal (CB 135-143, 155-158).
Tribunal Decision
The Tribunal affirmed the decision of the delegate on 14 December 2015. While the Tribunal found that the Second Applicant had not breached PIC 4020, and accepted that the burial customs were as he described, the Tribunal remained unsatisfied that the Applicants’ parents and sister were deceased as claimed. The Tribunal found that:
a)there was little verifiable evidence that the Second Applicant was not married, and did not have children. However, there was also no evidence to the contrary (CB 164 at [23]);
b)
the Tribunal did not accept the evidence of the First Applicant about his lack of contact with his family, including after he arrived in Australia in 2007, or about the way he said he had found out about the deaths of his parents and sister
(CB 165-166 at [26]-[36]);
c)the evidence from the First Applicant’s employer relating to the Second Applicant’s claims about how the First Applicant found out about the deaths was also suspicious (CB 167 at [39]-[40]);
d)both Applicants had provided little evidence, which was inconsistent in some respects, about the circumstances of their parents and sister’s deaths (CB 167-168 at [41]-[43]);
e)the Applicants’ claims about inheritance of land was implausible and inconsistent with general information found by the Tribunal about land rights in Ethiopia (CB 168-169 at [46]-[49]);
f)the letters of support provided by the Second Applicant were obtained and submitted for the purpose of the visa application, and did not represent contemporaneous information about the deaths of the family. Further, country information suggested that in Ethiopia, declarations of deaths had to be made and formal documents could be obtained from the local council. The First Applicant produced application forms for death certificates, but did not provide any official or independent documents verifying the deaths (CB 169-171 at [51]-[59]); and
g)the Tribunal gave some weight to the letters of support provided by entities in Australia, however the Tribunal retained its concerns about the implausibility of the surrounding narrative (CB 171 at [60]-[64]).
In respect of the evidence before it, the Tribunal stated that
(CB 172 at [68]-[69]):
68. The Tribunal’s concerns with the evidence outweigh any belated attempts to redress a lack of evidence at the time of application. Significantly the Tribunal is left unpersuaded that, had the visa applicant [the Second Applicant] been the remaining relative of [the First Applicant] they would not have made efforts to locate one another prior to Ms Abaha making a chance discovery of [the Second Applicant] in Ethiopia. The Tribunal’s concerns are also heightened because despite the presence of the Kebele, [the Second Applicant] has provided limited evidence that he has never married and does not have children or step-children by either a current or former partner.
69. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met and [the Second Applicant] does not meet the criteria for a Subclass 115 visa.
In light of the Applicants’ amended ground of judicial review, it is appropriate to extract the Tribunal’s reasoning which lead to its ultimate decision that it was not satisfied that there were no living “near relatives” of the Second Applicant, other than the First Applicant.
The first extract relates to the Tribunal’s consideration of country information that it had referred to regarding the maintenance of births, deaths and marriages records in Ethiopia. The Tribunal identified the country information and its contents as follows (CB 170 at [50]-[56]):
55. The Tribunal has referred to country information regarding civil maintenance of births, deaths and marriages records. The information shows that the Civil Code of Ethiopia outlines the regulations regarding death records and registrations and that Ethiopia has a system of local governments (being Kebele) which records births, deaths and marriages. The Civil Code at Art 106 provides that persons are bound to declare a death and that those living with the deceased or relatives are to make the declaration to the authorities. The MRT Research Response: ETH34802, Ethiopia, 4 May 2009, also indicates that death certificates are available from Municipal City Councils and in order to register the death under the civil laws any of the following are required:
· A death certificate/report from a hospital;
· A death certificate/evidence of burial from religion institutions or Labour and Social Affairs Bureau;
· A declaration signed by three witnesses in front of Kebele officials, confirming death.
56. When registering at the Municipal City Council, family members or others are required to produce one of the above, as well as the applicant’s Kebele card or passport. This same MRT Research response indicates that where a relative dies at home, officers (of the Department) should request the applicant to formally register the death with the city administration and that officers should not accept a testimonial issued by a Kebele social court as a formal death certificate. This is because testimonials are unreliable as they are issued based on verbal information provided by declarants without any verification of the information presented.
A copy of the “MRT Research Response: ETH34802, Ethiopia, 4 May 2009” (“the MRT Research Response”) referred to in the extracts above is contained in the Supplementary Court Book (“SCB”) at 5.
Having referred to this information, the Tribunal went on to state that it was not satisfied that the Applicants’ parents and sister are deceased as claimed on the basis of the letters from the Kebele Court or the Church, without government-issued death certificates (CB 170 at [57]). The Tribunal then stated, with respect to the First Applicant’s evidence at the hearing (CB 170 at [58]):
58. [The First Applicant] at hearing stated that because his family lived in a rural area of Ethiopia such documentation was not available. Given the Kebele issued [the Second Applicant] with a letter, the Tribunal queries why the Kebele would not issue formal death certificates, regardless of where [the Second Applicant] lived.
The second extract from the Tribunal’s decision record is in relation to a conference paper by Daniel W. Ambaye titled “Land Rights in Ethiopia: ownership, equity and liberty in land use rights”[1] (“the Ambaye Report”).
[1] Daniel W. Ambaye, ‘Land Rights in Ethiopia: ownership, equity and liberty in land use’ (Paper presented at FIG Working Week 2012, Rome, Italy, 6-12 May 2012)
The Tribunal considered the Ambaye Report in the context of the First Applicant’s evidence regarding Ethiopia’s private land ownership system (CB 168 at [46]):
46. …the Tribunal noted that when [the First Applicant’s] father died, he must have left documentation about who would inherit the land they worked on. [The First Applicant] stated that any family member could continue to reside on the land but that the government would confiscate it and give to some other random person because there was no individual ownership of land in Ethiopia. The Tribunal asked why [the Second Applicant] would not have had first right of refusal to work the land, and [the First Applicant] stated that his brother did not have the tools to do so. The Tribunal found this response perplexing given that he could have used his father’s tools; nonetheless, [the Frist Applicant] was asked whether there was any country evidence to indicate that when the father of the household died, the family was not entitled to any inheritance and that the land could be given to someone else. No such country information was submitted.
The Tribunal went on to state that it had conducted its own research into land rights in Ethiopia that was inconsistent with the First Applicant’s account (CB 168 at [47]):
47. The Tribunal has conducted its own research into land rights in Ethiopia and observes that the account submitted by [the First Applicant] is not consistent. Comprehensive research by Daniel W. Ambaye, Institute of Land Administration, Bahir Dar University, Ethiopia, confirm that the government owns land but that there are restricted inheritance provisions which enable a father to pass on property or more directly the yield of that property to children and that the system of ownership and land use in Ethiopia is not as opaque and undefined as indicated by the [First Applicant] [see: Land Rights in Ethiopia: ownership, equity and liberty in land use, Mr Ambaye in his research explains that while the current government embraces a free market, it has maintained the previous ideology of state ownership. It is also true that government restricts the sole power of selling land and mortgage, however, Tigray families may inherit land rights use or “holding rights”.
Following the Tribunal hearing, the Applicants submitted a letter from an administrator of “Kebele 02 BrehanOda” dated 11 July 2015
(CB 139). The Tribunal addressed the letter as follows
(CB 168-169 at [48]-[49]):
48. After the hearing the applicant submitted a letter from an administrator stating that after the demise of [the Second Applicant’s] parents the land was redistributed to another party according to the law of the land as [the Second Applicant] “did not have the means and necessary equipment to till and use the farmland”. While the letter dated 11 July 2015 appears to indicate that [the Second Applicant’s] parents are deceased, it makes no mention of whether [the Second Applicant’s] sister is alive or not and whether she may be living away from the farm area, particularly if she is married.
49. The Tribunal places some weight on this letter even though it does not have the means to verify its provenance. The Tribunal does note, however, that it’s research did not indicate that succession of land use rights would be forfeited if a relative did not have the means to till the land – a matter anyway the Tribunal finds difficult to accept given that there appears to be no reason why [the Second Applicant] could not simply use the tools his father had used.
The letter from the Kebele administrator relevantly confirmed that
(CB 139):
… the farm-lands of [the Second Applicant’s] families were allotted as per the law of the land in the following manner. Subsequent to the demise of [the Applicants’ father] on May 20, 2009 and [the Applicants’ mother] February 21, 2010, the farm land that they had been given and used to farm on were redistributed and given to [Mr G] and his families in 2009 and 2010 respectively. [The Second Applicant] the only immediate family entitled to use the land was unable to have it as he did not have the means and necessary equipment to till and use the farmland…
Judicial Review
The Applicants filed an application for judicial review on
13 January 2016. Subsequently on 21 November 2017, the Applicants filed an amended application.
The Applicants’ amended ground of judicial review is as follows:
1. The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.
Particulars
The Tribunal:
a. in respect of the information referred to at paragraph 55 of its decision, being the ‘MRT Research Response’ dated 4 May 2009, failed to comply with s 359A(1)(a)-(c) and/or s 359AA(1)(a)-(b);
b. in respect of the information referred to at paragraph 47 of its decision, being the ‘comprehensive research of Daniel W. Ambaye, Institute of Land Administration’, failed to comply with s 359A(1)(a)-(c) and/or s 359AA(1)(a)-(b).
(Underlining omitted)
Section 359A of the Migration Act 1958 (Cth) (“the Act”) relevantly provided:
(1) Subject to subsections (2) 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.
…
(3) 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 359AA.
(4) 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
…
Section 359AA(1) of the Act provided:
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(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.
The MRT Research Response
With respect to the Tribunal’s reliance on the MRT Research Response, the Applicants’ submission is that this information was information that the Tribunal considered would be a reason for affirming the decision under review. The Applicants argue that this is apparent from the Tribunal’s conclusion at [57] of its decision record that in the absence of government-issued death certificates, it was not satisfied that the Applicants’ parents and sister were deceased.
Counsel for the Applicants submitted that it is evident at [55]-[58] of the Tribunal’s decision record that it reasoned, by detailed reference to the steps required to register a death under Ethiopian civil law, that firstly, the process for obtaining a death certificate is straightforward, and secondly, given that the Second Applicant approached the Kebele Court for a statement regarding the deaths in his family, there was no reason why the Second Applicant could not also have obtained formal death certificates from the Kebele Court.
The Applicants submit that given that this was information the Tribunal considered would be a reason for affirming the decision under review, the Tribunal was obliged to give to the Applicants clear particulars of that information, either at the hearing or by written invitation. The Applicants submit that the Tribunal did not write to the Applicants inviting them to comment on this adverse information, and consequently, the Tribunal was obliged to give the Applicants clear particulars of this information at the Tribunal hearing.
The Applicants submit that the Tribunal failed to give the Applicants clear particulars of this information in a way that was consistent with s.359AA(1)(b)(i) of the Act. Furthermore, the Applicants submit that the Tribunal failed to invite the Applicants to comment on or respond to this information as required under s.359AA(1)(b)(ii) of the Act, and did not advise the Applicants that they may seek additional time to comment on or respond to the information as required under s.359AA(1)(b)(iii) of the Act.
The Applicants submit that at the Tribunal hearings, the only reference to the information contained in the MRT Research Response was during the second hearing on 20 November 2015, in which the Tribunal Member said to the First Applicant: [2]
[TRIBUNAL MEMBER]: …The country information, the research conducted by the department and the tribunal shows that the Ethiopian Government can provide death certificates when the deaths occur. Now, you got a letter from the Kebele office but not the death certificates from the Kebele…
[2] The Affidavit of Erskine Hamilton Rodan dated 17 November 2017, Exhibit B, 5.
The Applicants submit that this did not constitute the provision of clear particulars of the information upon which the Tribunal based its decision. Counsel for the Applicants submitted that it is apparent at [55]-[58] of the Tribunal’s decision record that the Tribunal’s line of reasoning was that there were clear and straightforward steps which could be taken to obtain a death certificate, and given that the Second Applicant had taken one step (namely, approaching the Kebele Court for a statement regarding the death of his parents and sister), there was no reason as to why he could not have completed the process by obtaining formal death certificates. Counsel for the Applicants submitted that the Tribunal’s line of reasoning is not reflected in the statement made by the Tribunal Member to the First Applicant (extracted above at [29]). Counsel for the Applicants submitted that the Tribunal Member failed both to refer to the particulars of the information contained in the MRT Research Response regarding the available steps under Ethiopian civil law to obtain a death certificate, and how that information might be relevant to its decision on review.
The Applicants rely on the decision of Flick J in SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 (“SZNKO”). In his Honour’s decision, Flick J noted that whilst
s.424A of the Act (the pt.4 equivalent of s.359A of the Act) once required the giving of “particulars”, it was amended to require “clear particulars” (SZNKO at [19]). The Applicants argue that SZNKO supports their submission that a generalised, indirect, and single-sentence reference to the availability of government-issued death certificates, when the information relied upon included the steps that were required to obtain such certificates, could not have amounted to “clear particulars”.
The Applicants also rely on the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 (“SZEOP”). Regarding the requirement under s.359AA(1)(b)(i) of the Act that the Tribunal must “ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review”, his Honour said (SZEOP at [36]):
36. When the matter was before the trial judge he took the view that it must have been apparent to the appellant, having regard to the course of the hearing and the terms of the letter, that the tribunal was contemplating a possible finding that it was not satisfied that he was a homosexual. But that approach does not deal with the strict requirements of s 424A(1)(b). It required the tribunal to ensure, as far as reasonably practical, that it identified to the appellant why he should have understood the information was relevant to the review. This is necessary to avoid an applicant for review being left to choose between uncertain inferences that might otherwise be available in the notification. The natural justice which the Parliament has said an applicant for review is entitled to receive from the tribunal in a situation such as the present includes, as far as is reasonably practical, that the applicant is told by the tribunal why the information is relevant to the review. The tribunal does not fulfil the obligation imposed by s 424A(1)(b) if it leaves it to chance that he ought to appreciate that relevance from the course of the hearing, or from other circumstances surrounding the way in which the review is being conducted.
The Applicants submit that the Tribunal needed to do more than simply put the proposition to the First Applicant that government-issued death certificates could be obtained. The Applicants submit that the obligation on the Tribunal was to positively explain to the First Applicant the relevance of the information.[3] The Applicants argue that the relevance of the information was not merely that the proof of the deaths of their parents and sister were in issue, but that the Tribunal would use the information in the MRT Research Response, which suggested that there were straightforward means to obtain government-issued death certificates, as the basis to reject the secondary evidence advanced by the Applicants about the deaths of their parents and sister.
[3] The Applicants’ Written Submissions filed on 21 November 2017 at [23].
The Applicants further submit that it is apparent from the transcript that the Tribunal did not inform the First Applicant that he could seek additional time to respond to the particulars that were put to him. Consequently, the Applicants submit that s.359AA(1)(b)(iii) of the Act was not complied with.
Counsel for the Minister accepted that the MRT Research Response contained information which the Tribunal considered could form part of the reason for affirming the decision under review. However, Counsel for the Minister submitted that the Tribunal Member put clear particulars of the information to the First Applicant, in a way that was consistent with s.359AA(1)(b)(i) of the Act.
Counsel for the Minister drew the Court’s attention to an extract of the transcript of the Tribunal hearing on 20 November 2015 which precedes the extract relied on by the Applicants. The Tribunal Member said to the First Applicant:[4]
[TRIBUNAL MEMBER]: …I have just a few other things to ask you… The country information says that it is possible to get a death certificate when the people pass away, and an official death certificate, but we don’t have that, so why is that?
[4] The Affidavit of Erskine Hamilton Rodan dated 17 November 2017, Exhibit B, 5.
Counsel for the Minister submitted that the key point of the MRT Research Report was that a death certificate was in fact available on application, and that this was put to the First Applicant. Counsel for the Minister further submitted that the observation made by the Tribunal at [58] of its decision record was based on the material that was before the Tribunal, and which did not depend on the country information.
The Ambaye Report
The Applicants submit that it is evident at [46] of the Tribunal’s decision record that proof of land transfer or reversion was significant for the Tribunal, because it went to proving their father’s death. Further, the Tribunal found that the information from the Ambaye Report did not support the Applicants’ evidence that “…succession of land use rights would be forfeited if a relative did not have the means to till the land…” (CB 169 at [49]).
The Applicants submit that this was information relied upon by the Tribunal in finding that it was not satisfied the Applicants’ father had died as claimed. The Applicants therefore submit that it was information that the Tribunal considered would be part of the reason for affirming the decision under review.
The Applicants submit that this information was not put to them, either in writing or orally, and consequently, the Tribunal failed to comply with its obligations under ss.359A and 359AA of the Act.
Counsel for the Minister concedes that the Tribunal did not put the information contained in the Ambaye Report to the First Applicant. However, Counsel for the Minister submitted that while the information contained in the Ambaye Report may be said to be broadly supportive of the view that the Tribunal took about the evidence that the First Applicant provided, it was not itself the reason or a part of the reason that the Tribunal affirmed the decision under review.
Counsel for the Minister submitted that the reason or part of the reason that the Tribunal affirmed the decision under review is apparent from an examination of the whole of the Tribunal’s consideration of land succession rights. Counsel for the Minister submitted that this commences at [45]-[46] of the Tribunal’s decision record. The Tribunal stated (CB 168 at [45]):
45. Even though the Tribunal cannot assist an applicant to make their case, the Tribunal did note that while Ethiopia may not have record keeping systems that are akin to those in Australia, it could be expected that some documentation would exist that would demonstrate that his parents and his sister were deceased.
Counsel for the Minister noted that the following paragraph of the Tribunal’s decision commences with the statement that
(CB 168 at [46]):
46. For example, the Tribunal noted that when the [First Applicants’] father died, he must have left documentation about who would inherit the land they worked on…
Counsel for the Minister then referred to the evidence given by the First Applicant in response to the Tribunal’s questions about this issue at the first hearing, which the Tribunal considered to be “perplexing”. The Tribunal stated that (CB 168 at [46]):
46. …the [First Applicant] was asked whether there was any country evidence to indicate that when the father of the household died, the family was not entitled to any inheritance and that the land could be given to someone else. No such country information was submitted.
Counsel for the Minister argued that the Tribunal considered the Ambaye Report (CB 168 at [47]) and the correspondence from the Kebele administrator (CB 168-169 at [48]) in this context. Counsel for the Minister argued that it is also in this context that the Tribunal reached its conclusions (CB 169 at [49]; extracted in full at [19] above).
Counsel for the Minister argued that the Tribunal noted that its research did not indicate that succession would be forfeited. Rather, Counsel for the Minister argued that the Tribunal said that this was a matter it found difficult to accept, given that there appeared to be no reason why the Second Applicant could not simply use the tools his father had used (CB 169 at [49]). Counsel for the Minister noted that the Tribunal then proceeded to deal with other documentary gaps in the evidence before it.
Counsel for the Minister submitted that in this context, the land information contained in the Ambaye Report, whilst generally supportive of the Applicants’ evidence, could not be said to be the reason or part of the reason the Tribunal affirmed the decision under review.
The Minister submits that therefore, the Tribunal was not under an obligation pursuant to s.359A of the Act to put that information to the First Applicant.
Consideration
The first question to be determined is whether the information contained in the MRT Research Response and/or the Ambaye Report was “information” that the Tribunal considered would be the reason or part of the reason for affirming a decision under review.
In my opinion, when regard is had to the Tribunal’s reasoning, there is no doubt that the failure of the First Applicant to obtain and provide the Tribunal with formal, government-issued death certificates for his parents and sister, was a significant reason for rejecting the Second Applicant’s claims that he had no remaining relatives other than the First Applicant.
I am satisfied that the Tribunal relied on the MRT Research Response for the purpose of satisfying itself that there was a process under Ethiopian civil law by which an applicant could obtain death certificates from municipal city councils. The Tribunal made it plain that the MRT Research Response indicated that there are various options available to register the death of a family member, including a “…declaration signed by three witnesses in front of Kebele officials, confirming death” (CB 170 at [55]). The Tribunal then queried why, if the Kebele had issued the Second Applicant with the letter, the Kebele would not issue formal death certificates (CB 170 at [58]). I reject the Minister’s submission that this statement by the Tribunal was not dependent upon the country information. In my opinion, the information referred to by the Tribunal was inextricably linked to this statement.
Accordingly, I am satisfied that the Tribunal considered that the information contained in the MRT Research Response would be the reason or part of the reason for affirming the Minister’s decision.
As the Tribunal did not write to the Applicant under s.359A of the Act, the Tribunal was obliged to comply with the requirements of
s.359AA of the Act.
I agree with Counsel for the Applicants’ submission that the First Applicant would not have understood from the Tribunal Member’s statement to the First Applicant at the second hearing about country information that the Tribunal considered that there were available steps under Ethiopian civil law for the Second Applicant to obtain death certificates, and further, that the Second Applicant could have taken these steps, given that he approached the Kebele Court for the statement about the death of their parents and sister.
Accordingly, I find that the Tribunal did not comply with
s.359AA(1) of the Act.
I am also satisfied that the Tribunal relied on the Ambaye Report in deciding whether the Applicants’ father was deceased as claimed. It is clear that the Tribunal reasoned that if the Applicants’ father had died, the succession of land use rights in Ethiopian as described in the Ambaye Report would enable his father to pass on property rights to his children. The Tribunal therefore anticipated that the Applicants would have relevant documentation about how their father had disposed of the land.
The Tribunal said that it gave “some weight” to correspondence from the Kebele administrator (CB 169 at [49]). However, I am satisfied that the Tribunal considered the information contained in the Ambaye Report would be part of its reasons affirming the decision under review. The Tribunal made it clear that, although the information contained in the Ambaye Report was silent on the issue of forfeiture of succession of land use rights in circumstances where a relative did not have the means to till the land, in any event, it did not accept the First Applicant’s evidence that the Second Applicant did not have appropriate tools to till the land (CB 169 at [49]).
In my opinion, as the substance of the statement from the Kebele administrator (see [20] above) was that the Second Applicant was unable to take advantage of the land succession rights because he did not have the necessary equipment to till the land, the Tribunal afforded the statement from the Kebele administrator minimal weight.
Accordingly, I am satisfied that the Ambaye Report was information that the Tribunal considered was part of the reason for affirming the Minister’s decision.
There is no dispute that the Tribunal did not, either in writing, or orally at the hearings, give clear particulars of this information to the Applicants.
Did the information fall within s.359A(4)(a) of the Act?
The critical issue before the Court is whether the information contained in the MRT Research Response and/or the Ambaye Report fell within the exception contained in s.359A(4)(a) of the Act.
The Applicants submit that the MRT Research Response and the Ambaye Report did not fall within the exception to the obligations under ss.359A or 359AA of the Act, as contained in s.359A(4)(a) of the Act, because the information, properly characterised, was not information “just about a class of persons of which the applicant or other person is a member”.
The Applicants submit that neither the MRT Research Response nor the Ambaye Report is information about “a class of persons”. The Applicants argue that rather, the information is about the functioning of the Ethiopian government as it concerns death certificates and land rights, respectively. Consequently, the Applicants argue that this information does not fall within the exception contained in s.359A(4)(a) of the Act.
Counsel for the Applicants relied on the majority judgment of Kenny J in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 (“VHAJ”) regarding the construction of s.424A(3)(a) of the Act. It is to be noted that ss.424A(3)(a) and 359A(4)(a) of the Act are expressed in the same terms.
In VAHJ, the majority held that information relating to the laws of Italy on entry rights of non-nationals fell within the exception contained in s.424A(3)(a) of the Act (Moore J dissenting). Counsel for the Applicants referred the Court to the following extracts from the judgment of Kenny J (VHAJ at [50]-[56]):
50. In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act: see, e.g., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O’Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and “W104/00A” v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 (“VEAJ of 2002”), at [36]-[38], and [43] per Gray J.
51. These decisions should be contrasted with the decision in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 (“Baig”). In Baig, Gray J held that information in Agence France Presse was not “just about” a class of persons of which the applicant or any other person was a member. At [33] his Honour said:
Section 424A(1)(a) is expressed in terms of the Tribunal’s subjective view: if the Tribunal ‘considers’ that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why [it is] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant’s claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election.
52. This passage illuminates the operation of par 424A(3)(a) by focussing on the relevance of the information in question to the Tribunal’s decision-making. His Honour’s analysis is premised on the assumption that whether or not information is “just about” a class of persons of which the applicant or any other person is a member depends on whether or not the information is relevant to the decision-making simply because it concerns this class. See also VEAJ of 2002, at [43]-[44]. If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be “just about” a class of persons of which the applicant or other person is a member. If, however, the information is relevant to the Tribunal’s review upon some other basis, then it will not fall within s 424A(3)(a), even though it does not specifically concern the applicant and it is about (but not just about) a class of persons of which the applicant or another person is a member. The information in Baig did not fall within s 424A(3) because, although it was not specifically about the applicant, it was relevant to his participation in a campaign for a by-election and was not just about a class of persons that included him.
53. Baig should be contrasted with VAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 573 (the facts of which are closer to the present case than Baig). In VAAC, Marshall J considered a number of issues, including an alleged contravention of s 424A. Although his Honour’s decision was ultimately reversed on appeal (on a ground that had not been argued at first instance) the Full Court endorsed his approach to par 424A(3)(a): see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74, at [20]. A comparison of the decisions in VAAC and Baig illustrates the difference between information that falls within subs 424A(3) and information that does not.
54. At first instance, Marshall J held that the Tribunal had not contravened subs 424A(1) by failing “to give the applicant particulars of the information it had concerning the ability of the Afghan government in exile to issue passports to Afghan nationals in Australia through its consular services located in Canberra”: see VAAC [2002] FCA 573, at [12] and [28]. His Honour held, at [26]-[27], that the information in question was not specifically about the applicant or another person, and “[was] just about a class of persons of which the applicant or another person [was] a member”. On appeal, the Full Court (North, Merkel and Weinberg JJ) agreed: see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74. Their Honours said, at [20]:
The information was just about a class of persons, namely, Afghan nationals who seek the issue of a passport. In relation to that class, the information was that there was a consulate in existence in Canberra which could issue such passports.
55. The information in VAAC was relevant merely because it tended to show that there was a class of persons, which included the applicant, who could obtain an Afghan passport from the Afghan consulate in Canberra. This information was significant because there was other material before the Tribunal showing that, if he had a passport, the applicant could enter and reside in India, where he would not have a well-founded fear of persecution on Convention grounds. There is no relevant difference, it seems to me, between the information at issue in VAAC and the Information in this case. In a sense, the Information in this case is about Italian law, but it is relevant only because it is also about holders of current Italian permits. As already noted, information does not cease to be information “just about” a class of persons merely because it can be characterised in more than one way. For the purpose of par 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal’s decision only because it is about this class of persons. The Information in this case was relevant only because it provided the basis for the Tribunal’s conclusion that the appellants could enter Italy and reside there. (The Tribunal’s decision assumed that if the appellant husband could reside in Italy, then so too could the appellant wife and appellant children.) Since there was evidence before the Tribunal that the appellant husband had a current permit, then it was open to the Tribunal to conclude that he was a member of the class of current permit holders who, by virtue of Italian law, could enter and reside in Italy. The Information was not relevant to the Tribunal’s decision-making on any other basis. The Information was, therefore, “just about a class of persons of which the applicant … is a member”.
56. It follows that the Information satisfies both elements of par 424A(3)(a) and falls within the exception in that paragraph. Accordingly, the Tribunal had no obligation under par 424A(1) to invite comment upon it. The appellant did not contend or suggest that, in the circumstances of the case, there might otherwise have been any breach on the Tribunal’s part of the general rules of procedural fairness.
(Emphasis in original)
Counsel for the Applicants relied on what he said was the emphasis of Kenny J in VHAJ that, as in the decision in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 (“Baig”), regard must be had to the way in which the information was used by the Tribunal. Counsel for the Applicants contended that if information were used in a particular way, as it was in Baig to undermine the credibility of an applicant, rather than describing circumstances confronting, for example, a particular social group or persons of particular ethnicity in a country, then the information does not fall within the exception contained in s.359A(4)(a) of the Act. Counsel for the Applicants argued that this is because the information is no longer about a class of persons. Counsel for the Applicants submitted that the information contained in the MRT Research Response and the Ambaye Report was information relied on by the Tribunal in its reasoning that lead to adverse credibility findings about the Applicants’ claims, and consequently, the Tribunal’s rejection of those claims. Counsel for the Applicants argued that for this reason, the information did not concern a “class of persons.”
Counsel for the Minister submitted that the Applicants’ approach to the question about whether the information fell within the exception under s.359A(4)(a) of the Act was misconceived. Counsel for the Minister argued that, having regard to the authorities which have considered the construction and application of s.359A(4)(a) of the Act, the information clearly fell within that exception.
Counsel for the Minister first submitted that there are two relevant propositions that could be drawn from the judgment of Kenny J in VHAJ. First, her Honour accepts that information that may fall within the reference to a “class of persons”, even though it may be characterised in different ways. Second, her Honour stated that information does not cease to be information “just about a class of persons” simply because it can also be characterised as information about religious practice, government elections, educational opportunities, or other matters.
Counsel for the Minister relied on the joint judgment of Gyles and Conti JJ in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559 (“VHAP of 2002”), where their Honours dealt with the construction of s.424A(3)(a) of the Act. Justice Allsop (as his Honour then was) delivered a separate judgment, agreeing with the construction of s.424A(3)(a) of the Act favoured by Gyles and Conti JJ. The information in question was described by the appellant as “…the situation in China and the behaviour of the authorities in relation to exit procedures from China, Christianity, 1989 Pro-democracy movement and Falun Gong…” (VHAP of 2002 at [5]).
Justices Gyles and Conti addressed an argument by the appellant that s.424A(3)(a) of the Act prescribed two criteria that must be met, as follows (VHAP of 2002 at [13]-[14]):
13. It is argued for the appellant that this prescribes two criteria that must be met, namely, that the information:
(1) is not specifically about the applicant; and
(2) is just about a class of persons
It is submitted that the information in question was general in nature, covering more than one class of persons, and so did not satisfy the second criterion.
14. In our opinion that argument must be rejected. The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree. The opinion of Ryan and Finkelstein JJ on this point in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 at [30]–[31] seems to be contrary to those authorities (whilst seeking to distinguish them) but, in any event, would not affect the conclusion of Finkelstein J in this case even if correct.
Counsel for the Minister submitted that a further explanation of the construction of the phrase “is just about a class of persons of which the applicant or other person is a member” was undertaken in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”). In his Honour’s judgment, Beaumont J relevantly said (NAMW at [67]-[70]):
67. In VHAP, Gyles and Conti JJ observed (at [12]) that there (as here) the information which (but for the limitation in subs (3)(a) reserved by subs (1)) would otherwise fall within subs (1), did not ‘expressly’ refer to, and was not ‘expressly about’, the first respondent (or any other relevant person). In other words, the information is not ‘specifically’ about the first respondent unless it is regarded as being about every person who may fall into a class which is the subject of the information. Yet subs (3)(a) excludes information that is not ‘specifically’ about the first respondent. Nor, for reasons given by Gyles and Conti JJ cited above, does the statement ‘and is just about a class of persons’ provide another criterion (which would pick up general information) to be met, if subs 3(a) is to be satisfied. As their Honours said (at [14]), this is ‘designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it’ (my emphasis).
68. It is true that in subs (3)(a) the word ‘and’ is interposed between ‘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’. Taken out of context, the insertion of the word ‘and’ could suggest that an additional ingredient is introduced. But one of the dictionary definitions of ‘and’ is ‘also’. In my view, it is used here in the sense of ‘even if’.
69. In my opinion, consistent with the views expressed in VHAP, it is this meaning which is consistent with the present context. Thus one would read subs (3)(a) as follows: ‘(3)(a) that is not specifically … [even if] just …’.
70. So construed, subs (3)(a) would have a purposive meaning which would preclude, as Parliament must have intended, a possible argument that reference to a class would be taken as a reference to all individuals falling within it.
(Emphasis in original)
Counsel for the Minister submitted that the critical proposition arising out of Beaumont J’s reasoning in NAMW is that one should read s.424A(3)(a) of the Act as including information that is not specifically about an applicant, even if it is just about a group or class of people. Counsel for the Minister further submitted that there need not be a specific identification of any particular class of persons, as the purpose of the phrase “is just about a class of persons of which the applicant or other person is a member” is to provide a counterpoint to the specificity of information about an applicant. Counsel for the Minister submitted that the kind of information that would necessarily fall within s.424A(3)(a) of the Act is more general information that is not specific to an applicant.
Counsel for the Minister submitted that this approach to the construction of s.424A(3)(a) of the Act was supported by Merkel and Hely JJ’s joint judgment in NAMW. Regarding the construction of s.424A(3)(a) of the Act, their Honours commenced by stating
(NAMW at [126]):
126. The second area of controversy relates to whether s 424A(3)(a) contains two criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, each of which must be satisfied. The alternative view is that the reference to the class of persons is not another criterion to be met but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it. The “two criteria” interpretation was adopted in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 (“VHAJ”) at 616-617 [25]-[29] per Moore J and 622-623 [46]-[48] per Kenny J; and NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 (“NARV”) at 509 [30] per Ryan and Finkelstein JJ. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP”) at [14] per Gyles and Conti JJ (with whom Allsop J agreed), VNAA at [32]-[33] per Gyles J, and is also favoured by Beaumont J at [68]-[71] in the present appeal.
Their Honours proceeded to consider the legislative history of the subsection (this being the former s.57 of the Act). Justices Merkel and Hely said (NAMW at [131]):
131. Counsel for the respondents submitted that the two criteria approach gives effect to the ordinary and natural meaning of the words used in s 424A(3)(a) and that if the legislature had wished to replicate s 57 it would have been a simple matter for it to do so. Although there is some force in that submission it is difficult to see any rationale for excluding from the operation of s 424A information which is just about a class of persons of which the applicant or the other person is a member, but not excluding such information if those persons were not members of the class. Yet, the two criteria approach has that anomalous result.
Their Honours concluded (NAMW at [138]):
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: see VHAP at [14]. It follows that the Magistrate was in error in failing to find that the relevant country information fell within the exclusion in s 424A(3)(a), and in finding that the RRT failed to comply with s 424A(1).
Counsel for the Minister drew the Court’s attention to two decisions of the Federal Court of Australia to demonstrate the type of information which a superior court has found falls within the scope of the exception contained in s.424A(3)(a) of the Act.
In Applicant S209 of 2003 v Refugee Review Tribunal [2006] FCAFC 181 (“Applicant S209 of 2003”), the Tribunal had regard to information that there was “a very high level of document fraud in Bangladesh”, with fraudulent documents able to be obtained with the assistance of the police, through the payment of bribes to officials, and the availability of lawyers who, for a fee, would provide a letter advising that it is unsafe to return to Bangladesh (Applicant S209 of 2003
at [10]). Justice Dowsett, with whom Ryan and Rares JJ agreed, approved the approach in VHAP (Applicant S209 of 2003 at [19]).In MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1271 (“MZXCV”), the Tribunal had considered country information to the effect that the 2004 elections in Sri Lanka were generally free and fair, and were conducted in a democratic manner (MZXCV at [10]). His Honour Middleton J said
(MZXCV at [20]):
20. … Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]–[14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42]–[46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20]–[30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178, at [15] to [16].
Counsel for the Minister submitted that in the present case, there was information of two kinds; neither of which was specifically about the Applicants. Counsel for the Minister submitted that the first kind of information concerned the steps that a person in Ethiopia can take to register a death, and then to obtain a death certificate, in circumstances where the Applicants had not produced such a document. Counsel for the Minister submitted that this information was relevant to the Tribunal in determining whether or not it was possible for the Second Applicant to produce death certificates, taking into account the general circumstances in Ethiopia going to the production of such documents.
Counsel for the Minister submitted that the second class of information concerned land use and succession, and the question of whether a person in Ethiopia whose parents had died could expect to inherit land. Counsel for the Minister submitted that this was also a question which was bound in the issue of whether or not the Applicants’ parents were in fact deceased, as claimed.
Counsel for the Minister submitted that as neither of these classes information was specifically about the Second Applicant, it was information that fell within the exception of s.359A(4)(a) of the Act.
Counsel for the Minister’s primary submission is that it is sufficient that the information is clearly not information specifically about the Applicants. However, if it is necessary to consider whether it was also information that is “just about a class of persons”, then the submits that it is information about the general legal situation in Ethiopia for people dealing with deaths in the family, and that is, on Applicants’ case, a class of people of which the Second Applicant was a member. Counsel for the Minister submitted that this was sufficient to bring the information within the exception contained in s.359A(4)(a) of the Act.
Consideration
For the reasons set out below, I find that the information contained in the MRT Research Response and the Ambaye Report falls within the exception contained in s.359A(4)(a) of the Act.
In SZNKW v Minister for Immigration and Citizenship [2010] FCA 55 (“SZNKW”), Kenny J observed that there were divergent views of the Full Court of the Federal Court about whether s.424A(3)(a) of the Act incorporates two criterion which must be met, or simply the one criterion that the information be “not specifically about the applicant or another person”, with the remainder of the subsection simply reinforcing the non-specificity required by this single criterion. Relevantly, Kenny J observed as follows (SZNKW at [46]):
46. Further, information about the status of homosexuals in Bangladesh is not within the ambit of section 424A’s disclosure requirements. Sub-section 424A(3)(a) exempts from disclosure any information “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”. There is some disagreement in the decisions of the Full Court of this court regarding the interpretation of the second clause of this provision: see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 (“VNAA”) at 417 [25]-[26]. Some decisions support the view that the phrase “and is just about a class of persons of which the applicant or other person is a member” provides a second criterion for exemption in addition to the requirement that the information be “not specifically about the applicant or another person”: see, e.g., VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 (“VHAJ”) at 88 [24]-[25] per Moore J and 94 [45] per Kenny J. Others support the view that the provision contains only one criterion – that the information “is not specifically about the applicant or another person” – and the “just about” clause serves simply to reinforce the non-specificity required by this single criterion: see, e.g., VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14] per Gyles and Conti JJ. As in VNAA, it is unnecessary to choose between these two constructions in the present case. Information about the status of homosexuals in Bangladesh generally is not specifically about the appellant or another person; and, as such information was only potentially relevant because of the appellant’s claimed membership in the class of homosexuals in Bangladesh, the “just about” clause is satisfied if that clause is treated as defining a separate criterion: see VHAJ at [55].
In SZOJP v Minister for Immigration and Citizenship [2011] FCA 93 (“SZOJP”), Jacobson J said the following regarding the construction of s.424A(3)(a) of the Act (SZOJP at [20]):
20. The exception contained in this section has been interpreted in a large number of decisions of the court. The overwhelming affect of the decisions of the Court is to interpret the relevant subsection as excluding information which is not specifically about an applicant or another person, and the reference in s 424A(3)(a) to the “class of persons” is a provision designed to underline the specificity required, and not a separate requirement. This was stated by Merkel and Hely JJ in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [138]. As I have said, there are a number of other authorities to the same effect with the only contrary authority being the decision in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 (see in particular [31]).
There is no doubt that the information contained in both the MRT Research Response and the Ambaye Report is information that is not specifically about the Second Applicant or another person. On the authority of VHAP and NAMW, that would be the end of the matter, and the Court would find that the information falls within the exception contained in s.359A(4)(a) of the Act.
Assuming that the use of the word “and” is intended by the legislature to operate so that the phrase “and is just about a class of persons of which the applicant or other person is a member” provides a second criterion for exemption, in addition to the requirement that the information be “not specifically about the applicant or another person”, I find that the information is about a class of persons of which the Second Applicant was a member for the following reasons:
a)I am satisfied that the information was generally about the Ethiopian civil law applicable to a class of persons whose relatives had died. In this case, the Second Applicant was clearly a member of the class of persons, as he claimed his parents and sister had died in Ethiopia;
b)the MRT Research Response was information about Ethiopian civil law in circumstances where a relative had died, including the issuing of death certificates to Ethiopian nationals (as well as the issuing of birth and marriage certificates to Ethiopian nationals). The relevance of this information to the Tribunal decision was that under Ethiopian civil law, there was a process available for obtaining death certificates. The information showed that there is a class of persons, of which the Second Applicant is a member, who could apply under Ethiopian civil law for the issuing of death certificates; and
c)the Ambaye Report concerned land succession rights in Ethiopia upon the death of a father. The relevance to the Tribunal was that the Applicants’ father was a farmer who owned property, and who the Second Applicant had claimed was deceased. The information was that there existed land succession rights that were applicable to families of Ethiopian nationals, under Ethiopian civil law. The information tended to show there was a class of persons, of which the Second Applicant was a member, who could benefit from these laws upon the death of the father.
I reject the Applicants’ submission that where information is used as a step in a tribunal’s reasoning which leads to adverse credibility findings, the information falls outside of the exception contained in s.359A(4)(a) of the Act as it does not concern a “class of persons”. This construction cannot be inferred from the ordinary words of s.359A(4)(a) of the Act. Such a construction would have the effect of placing much of the country information relied on by tribunals outside of the scope of ss.359A(4)(a) and 424A(3)(a) of the Act, and defeat the purpose of the sections: see NAMW at [29] per Merkel and Hely JJ; VHAJ at [74] per Downes J.
Accordingly, I find that the information contained in the MRT Research Response and the Ambaye Report is information that falls within the exception contained in s.359A(4)(a) of the Act. Therefore, the Tribunal was under no obligation to comply with ss.359A and 359AA of the Act in respect of this information.
Consequently, I find that no jurisdictional error arises from the Applicants’ amended ground of judicial review.
Conclusion
For the reasons set out in this judgment, I will order that the Applicants’ Amended Application for judicial review be dismissed. An order will also be made that the Applicants pay the Minister’s costs in a fixed amount.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 30 April 2018
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