MZOAB v Minister for Immigration
[2004] FMCA 119
•15 July 2004 by Hartnett FM
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZOAB & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 119 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant to the applicant a protection visa – whether the Tribunal fell into jurisdictional error in not separately dealing with the applications of the applicant’s children – whether the Tribunal denied the applicant procedural fairness under section 424A of the Migration Act in that it did not notify the applicant about relevant country information and whether the documents fall within the exception contained in section 424A(3) of the Act – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 91S, 424A, 424A(1), 424A(3), 424A(3)(a), 441A, 475A, 477, 478, 479
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001, Rule 21.15
SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1102
NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102
Re Minister for Immigration & Multicultural Affairs; ex parte "A" (2001) 185 ALR 489
Baig v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 380
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 186
VAAC v Minister for Immigration & Multicultural Affairs (2002) FCA 573
NARV & Others v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Parra v Minister for Immigration & Multicultural Affairs (2000) FCA 85
Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594
Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) FCR 287
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 90
Chin Shi Hi v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 201 CLR 293
Bushell v Repatriation Commission (1992) 29 ALD 1; 109 ALR 30
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
VBAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 205
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte S134/2002 (2003) 195 ALR 1
| Applicant: | MZOAB & OTHERS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 343 of 2003 |
| Completed on: | 2 July 2004 by Bryant CFM |
| Delivered on: | 15 July 2004 by Hartnett FM |
| Delivered at: | Melbourne |
| Hearing date: | 16 February 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms L Bird (pro bono) |
| Solicitors for the Applicant: | Arnold Bloch Leibler |
| Counsel for the Respondent: | Mr Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,250.
THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate in these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ343 of 2003
| MZOAB & OTHERS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a review of a decision by the Refugee Review Tribunal (the Tribunal) made on 12 February 2003 and handed down on 7 March 2003 (with a corrigendum dated 17 March 2003). The decision of the Tribunal declared that the applicant was not a refugee under the 1951 Convention relating to the status or refugees as amended by the 1967 Protocol and consequently the applicant was not entitled to a protection visa. The decision affirmed the decision of the Minister's delegate not to grant a protection (class XA) visa on
1 September 2000.
The application is made by a mother and her two young children who are nationals of Albania. They make application for orders pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (the Act). The applicant filed an application on 10 April 2003 and an amended application on 10 November 2003. The amended application seeks relief under ss.424A and 441A of the Act.
Background
The applicants arrived in Australia on 1 April 2000 travelling on the mother's false passport. The applicant mother is aged 35 years and the children are aged ten and seven respectively. Application was made for a protection visa on 12 May 2000. The applicant's husband had arrived separately in Australia and made his own application for a protection visa, however this was refused by a delegate of the respondent and then by the Tribunal on 21 June 2000. He made application to the Federal Court for a review of the Tribunal's decision and his application was dismissed by Sunberg J.
The applicants claims and the Tribunal hearing
The Tribunal had before it the Department's file and the delegate's decision record. The Tribunal also had regard to material referred to in the delegate's decision and other material available to it from a range of sources. The first applicant gave oral evidence to the Tribunal on 4 February 2003. Only the first named applicant (the applicant mother) made specific claims under the Convention. The mother arrived in Australia on a false passport. She listed her occupation as an agricultural economist and claimed that she had previously worked as an agronomist and a high school teacher.
The reasons that she gave for leaving Albania were that:
a)her daughter (J) was kidnapped in 1998 and held for ransom for three days. The applicant claimed that she was in constant fear that her children would be kidnapped again and held for ransom or sold for body organ replacement in other countries. She stated that her daughter may have been kidnapped because of the belief that her husband had money and would pay a large ransom or alternatively because of a blood feud against the family;
b)she also stated that she was at risk of persecution because of her husband's adverse political profile. She stated that her husband had been persecuted by the government and the police and many people were interested in making her life difficult in the hope that her husband would return and that they might gain "revenge". She stated the husband had failed to perform military service and feared that she may be held for ransom or raped to ensure her husband's return to Albania; and
c)the applicant also stated that she had no financial support in Albania and did not receive social welfare.
At the hearing the applicant reiterated the above claims and in some respects elaborated on them. She confirmed that she did not know why her daughter was kidnapped. She said that she had contact with someone related to the kidnappers who went to her house several hours after the kidnapping and told her to place US$10,000 at a certain location. She obeyed the instruction and was reunited with her daughter two to three hours after paying the money. She believed the kidnappers had not been apprehended. The applicant provided three possible explanations for the kidnapping. The first related to the fact that the applicant's husband had his own business and was assumed to have money. Because of this, she believed that the kidnappers targeted her family because they knew it had money and would pay the ransom.
Secondly, the kidnapping could have been a result of a family feud. She did not have any details of the feud because it concerned her husband's family. However she claimed to be aware that the husband's brother killed two officers and one soldier and was then also killed. She stated that no threats by relatives of the soldier or officers had been made to her and she had no evidence that the kidnapping was due to a blood feud and confirmed that she was only guessing in this regard.
The third explanation advanced was the adverse political opinion which she claimed was attributed to her husband. She claimed that at the time of the kidnapping there was major civil unrest following the appointment of a new government. As a result, serious crimes were occurring and Albania was a very unsafe place for everyone. She claimed that kidnapping was very common. When the police were called in relation to the disappearance of her daughter they attended at the kindergarten and made some inquiries. The applicant however stated that they did not investigate very thoroughly. She said that this was because there were far more serious offences being committed and that kidnapping was common.
When asked what she feared if she returned to Albania she stated that she feared a number of things:
a)She would not be able to economically support herself. It was put to her that she was a well educated and resourceful woman and she stated that she could provide for the children but that it would not be easy for her; and
b)She had problems with her religion. She is a Catholic and her husband is a Muslim. As a result of this she had been ostracised by her family.
She was unable to respond to the question about who she actually feared and then later stated that she would find it difficult to return because she had been away for over three years. She also said she feared her daughter might be forced to wear a veil if she returned to Albania. When it was put to her the country information showed a large degree of religious tolerance in Albania she stated that it was something that she could not explain further.
She further claimed that in relation to her husband's political opinion when a state of emergency was declared in March 1997 the government called on the people to perform military service. Her husband refused and as a result he may be imputed with an adverse political opinion. As a result of this she was declined social security. It was put to the applicant that during the state of emergency there was no compulsory conscription, which she denied.
Following the hearing, on the invitation of the Tribunal, the applicant forwarded a letter and further documents to the Tribunal. The letter stated that the details in the police report concerning the duration of the kidnapping were wrong, the kidnapping was around three hours, not three days. She also stated that she was scared of returning to Albania because:
The implication between my husband's family and the secret police is very high.
A document entitled "Call Up Number 77" to the applicant's husband dated 3 March 1997 and requesting the husband to attend for military service was attached. Newspaper articles referring to civil unrest in Albania and the mobilisation of people were also attached.
The Tribunal's reasons
The Tribunal found the applicant's account of the kidnapping was at times vague and inconsistent and she gave contradictory versions of how the kidnappers got in touch with her. The police report of the kidnapping stated that a child had been kidnapped for three days whereas it was for several hours. Despite these inconsistencies however the Tribunal accepted as genuine that the child was kidnapped by unknown persons for a total of approximately six hours. However, the Tribunal found the police report of the kidnapping was not genuine. The Tribunal found however, relevantly, that there was no Convention related reason for the kidnapping. The Tribunal noted that the applicant feared that one of she or one of her daughters might be kidnapped or physically harmed. This fear was based largely on the fact that J was previously kidnapped. The Tribunal noted that the applicant herself had suggested three possible alternative explanations for the kidnapping. The first, which the Tribunal said was more likely, was that given the high crime rate that according to the applicant prevailed at the time, the family was targeted because of the husband's perceived wealth. The Tribunal found that this explanation did not establish a Convention nexus. The Tribunal considered that even if the family was of a particular social group pursuant to s.91S of the Act, the fear of persecution for a non-Convention reason (such as the actual or perceived wealth of the husband) must be disregarded in determining whether the applicant had a well founded fear of persecution (SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1102).
The second suggested reason for the kidnapping was a family feud. The Tribunal found that the evidence given by the applicant regarding the family feud was very vague and non-specific and did not accept that she was a member of a family which was involved in a family feud. The Tribunal noted that although the onus of proof was not appropriate to administrative inquiries and decision making, the relevant facts of the individual case would have to be supplied by the applicant him or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. The Tribunal noted that no threats had been made or conveyed to her as a result of her brother-in-law's activities and that even if a family feud had existed in deciding whether she had a well founded fear of persecution pursuant to s.91S the Tribunal would be required to disregard the hostility between the families, unless it was Convention related, of which there was no evidence.
The applicant stated as the third alternative that the kidnapping may have been a result of an adverse political opinion that was imputed to her because of the fact her husband had refused to participate in the mandatory call up for the army when a state of emergency was declared in 1997. The Tribunal found that claim to be unfounded for two reasons:
i)first, there was no evidence the authorities or agents of the state had any involvement in the kidnapping. In fact the police investigated the kidnapping. Even though the applicant stated that they were not very fussed about the matter, on her evidence, this was a result of the fact that the police were tied up with more serious matters; and
ii)the Tribunal did not accept that the husband (and therefore the applicant) risked being imputed with an adverse political opinion because he refused to join the army in March 1997. This is because the Tribunal found there was no compulsion to join the army, the call up simply asking for volunteers. The Tribunal considered country information which showed that there was no call up of people such as the applicant's husband in March 1997. The Tribunal noted that that the applicant stated the call up resulted from the fact that a state of emergency was declared in March 1997. On consideration of country information the Tribunal found that it was apparent that the state of emergency legislation of 2 March 1997 did not require a call up of non-active military or reserve personnel and the enabling legislation was pre-March 1997 stated only that:
Nationals presently in military service will continue until the state of emergency ends.
The Tribunal considered the call up notice forwarded by the applicant following the hearing and noted that it was potentially corroborative of the fact that her husband was called up for military duty. However, the Tribunal rejected the genuineness of the notice. It did so for the following reasons:
a)it was a copy of a translation hence diminishing its probative value; and
b)further, many official documents from Albania are false (indeed the applicant arrived in Australia on a false passport). The Tribunal considered country information which indicated that widespread document forging was prevalent in Albania, particularly passports and official documents. For those reasons the Tribunal did not accept that the call up notice provided by the applicant was genuine and did not thus contradict the country information concerning the voluntary nature of the call up.
Thus the Tribunal opined that the applicant's husband did not breach a law by falling to join the army in 1997 and there was no basis for the claim that the applicant may be imputed with an adverse political opinion because of his failure to join the army. Thus the Tribunal concluded that as far as the kidnapping was concerned there was no evidence that it was for a Convention related reason. Accordingly, the fact of the previous kidnapping did not provide the applicant with a factual basis for fearing future persecution.
Finally, the Tribunal considered other matters that the applicant had referred to, namely a fear of persecution because of her religious beliefs, which the Tribunal found to have no basis because the behaviour complained of was a private family problem between the applicant and her mother-in-law. The applicant claims that she left work because people at work made comments about being married to a Muslim and that her daughter might be forced to wear a veil had no substance.
As to her claim that she might be mistreated because she had been absent from the country for some three years, the Tribunal found that to have been equally unfounded. It noted from country information that Albanians enjoyed unfettered rights to travel abroad.
Finally, the Tribunal considered her economic concerns, noting that the applicant had stated she would suffer economically if she returned to Albania. The Tribunal noted that she accepted that she could provide for herself and the children, although it would be hard. Thus the harm she feared did not constitute serious harm amounting to persecution and in any event, the Tribunal concluded any economic distress she may face was not Convention related.
As a result the Tribunal found that the applicant did not face a real chance of persecution for a Convention reason now or in the reasonably foreseeable future and was thus not satisfied that the applicant mother nor the other two applicants were persons to whom Australia has protection obligations. Thus they did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The Tribunal noted that no specific Convention claims were made on behalf of the applicant children and that there was no basis on which the Tribunal could be satisfied that they were refugees. The fate of their application depended upon the outcome of the applicant mother's application and as the Tribunal had found that her application did not satisfy the criteria for a protection visa the applicant children could not be granted a protection visa.
The applicant's grounds
Notwithstanding the amended application, Counsel for the applicant identified two discrete areas in which it is contended that jurisdictional error occurred. The first argues that the Tribunal fell into jurisdictional error in not separately dealing with the applications of the applicant's children. It is put that the Tribunal should not have simply rejected their application on the basis of findings in relation to their mother but rather dealt with the merits of their claim in their own right.
The second argument alleges a breach of procedural fairness and/or a breach of the obligations of the Tribunal under s.424A of the Act. This complaint relates to certain country information relied upon by the Tribunal but not formally notified or given to the applicant. It concerns in particular the manner in which the Tribunal dealt with the state of emergency in March 1997 and the call up notice issued to the applicant's husband. It is argued that the documents in question, which were relevant to the applicant's claim in relation to her husband's political profile, forms part of the reasons of the decision of the Tribunal. The applicant contends that the documents did not fall within any of the exceptions contained in s.424A(3). As a result, she and/or her children should have been given notice of their content and proposed use, and the opportunity to comment upon them. In the course of this argument it is put that the Tribunal asked itself the wrong question.
The legislative framework and relevant law
A decision of the Tribunal will not be a privative clause decision, as defined under the Act if it is affected by jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24; and Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte S134/2002 (2003) 195 ALR 1).
When determining whether a particular decision or conduct of a delegate or Tribunal amounts to jurisdictional error, it remains necessary to consider the possible affects of s.474 on the construction of the relevant provisions of the Act (see S157/2002 at [69], [70], [77], [78]). This process is described as one of "reconciliation" by the High Court and reveals that a particular provision or criterion is a condition precedent for valid action, or creates an imperative duty or inviolable limitation on restraint of the exercise of power. Whilst a breach of the common law rules of procedural fairness may constituted a jurisdictional error, not every breach vitiates the decision under consideration nor is any denial of procedural fairness necessarily sufficient to place a challenged decision outside the protection of s.474 (VBAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 205 per Ryan J at [23]). Where the Tribunal has been found to be in error in a particular case, relief will only be available to the applicant, if in the absence of error the decision could have been different (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [384]). And depending on the nature and extent of the error in question, it remains open to the Court to refuse to grant relief on discretionary grounds.
The Tribunal did not consider the claims of the applicant children
The applicant contended that the applicant children were entitled to have their own separate legal rights considered and determined under law by the Tribunal and that their interests should not have been subsumed to the identity and legal rights of the applicant mother. They had a right to have their separate and different considerations considered by the Tribunal and those issues were not put to the applicant mother during the Tribunal hearing. It is further contended that the Tribunal identified a wrong issue in making a decision that:
The fate of their applications therefore depends upon the outcome of the first named applicant's application
The applicant contends that the Tribunal should have identified the issue that each of the children had made a valid application under the Act and accordingly should have identified each of the applicant children's situation and set out the reasons why the situation of each applicant child did not satisfy the Convention criterion. In particular, the Tribunal did not address any issue of economic hardship or denial of access to basic services or denial of a capacity to earn a livelihood in relation to the subsistence of the children. Further, having accepted that as a finding of fact that one child was kidnapped by unknown persons the Tribunal failed to turn its mind to the merits of the application by the child applicant and to consider each application on its merits.
The applicant relied upon the decision of the Full Court of the Federal Court (Wilcox, Hill and Madgwick JJ) in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) FCA 247 and to the following passages (a) at paragraph [16]:
It is true that regard may be had to the weight of cases presented but not so as to relieve the RRT of the burden of considering the entire case (this is discussed in greater detail below). In second place, there were particular things about this Tamil in Sri Lanka that might mark him out as being more exposed to a real chance of persecution than some others. Such persecution might be by reason of imputed political opinion as well as or instead of his race.
Paragraph (b) - paragraph [18], (c) at paragraph [23]:
We adopt the following conclusions (authorities omitted), conveniently and aptly stated by Merkel J in Paramananthan at ALD 33-4; ALR 56-7, although not necessarily with each step of his Honour's reasoning supporting them:
"In general, an administrative tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration … and is entitled to have regard to the case put … However, ultimately the RRT is under a duty to fulfil its statutory obligation to "review the decision" before it and to do so according to s 420(2) which requires it to act according to the merits of the case. Unlike an adversarial proceeding, the parties do not appear and put a case, as such, to the RRT. As stated above, the RRT is required to determined whether it is "satisfied" that the applicant was a person to whom Australia has protection obligations under the Convention.
Material and evidence as well as arguments, may be presented to the RRT but its inquisitorial procedures of inquiry are not limited to or by any materials, evidence or arguments presented to it. In an appropriate case, the RRT may undertake its own inquiries and in some instances may be obliged to do so … Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant.
In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred is such that the RRT is required to determine the substantive issues raised by the material and evidence before it. That duty, which was recognised by Brennan J in Bushell v Repatriation Commission (1992) 29 ALD 1; 109 ALR 30, is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT.
The other authority relied upon by the applicant is Chin Shi Hi v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 201 CLR 293. Chin's case is entirely different from the present. In that case specific claims were made by or on behalf of the children. That is, they faced persecution as a result of being born to parents who had defied the "one child policy".
The applicant contends that the Tribunal wrongly categorised the children as having no independent claims when in fact they had both completed a form D application for a member of the family unit, in their own right. True it is that the children completed a separate form being an application for a member of a family unit. However neither the form nor any events presented to the Tribunal raised any material which might suggest that they had any independent claims beyond those made by their mother. Given that there were no separate claims advanced by the applicant's children there was no warrant for the Tribunal to consider their position separately. Once the Tribunal found that Australia did not have protection obligations to the applicant it followed as a matter of course that the children could not succeed. This could alternatively be described as the Tribunal not being required to make out the applicant's case. In SBBA v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 90 the Full Court of the Federal Court said at [8]:
It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) FCR 287 at 294; and Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 at [24]. It is however no part of the Tribunal's function "to make good a case, which the applicant has not articulated only because there is some evidence of elements of a claim". Parra v Minister for Immigration & Multicultural Affairs (2000) FCA 85 at [13].
In this case there was no evidence in support of a separate claim by either of the children. The Tribunal considered all of the claims put by the applicant mother which covered both by virtue of their application, and in fact, the children's claims. Nothing was advanced to the Tribunal independently of the mother's claim regarding the children and their claims were so inextricably linked with her claim that in any event they would fail on the same ground, even if the Tribunal were required to consider each of them separately. Absent any other material (of which there was none in this case) the children's claims must stand or fall with their mother's.
There was nothing readily apparent from which the Court could form a view that there was in this case an unarticulated claim that the Tribunal had not considered. Thus the absence of failing to set out the children's claims as being separately made, in a technical sense, as the applicant contends could not have made any difference to the Tribunal's decision.
Breach of procedural fairness under section 424A
The applicant contends that in breach of s.424A of the Act the Tribunal failed to give the applicant mother the opportunity to respond to the substance of the adverse information upon which the Tribunal intended to act in making a decision under the Act. Pursuant to s.424A(1) of the Act, subject to subsection (3), the Tribunal must:
(1)
Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)
The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)
This section does not apply to information:
(d)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
(e)that the applicant gave for the purpose of the application; or
(f)that is non-disclosable information.
It is contended that the applicant mother claimed she was at risk of persecution because of her husband's adverse political profile and accordingly she feared that she may be held for ransom or raped to ensure her husband returned to Albania.
The applicant's claim contends two failures, the first in relation to general country information and the second in relation to the call up notice. Most of the submissions of the applicant were directed to the latter.
As far as the general country information was concerned the respondent contends the Tribunal was under no obligation to provide to the applicant the material set out in her contentions which included a BBC report and Albanian news network report on emergency legislation in March 1997 and an Agence France Press report referring to volunteers reporting to defence ministry. The respondent contends that this falls within the exception referred to in s.424A(3) and in particular contends that the survey conducted by the Albanian Interior Ministry reported in the Albanian newspaper in May 1998 concerning prevalence of forgery of official documents was material of a general nature and was in a broad sense "just about a class of persons" of which the applicant's husband was a member, that is, persons who may be affected by or respond to the emergency at that time. The applicant relies upon the decision of the Full Court in NARV & Others v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 at paragraph [24] Ryan and Finkelstein JJ said:
The meaning of s 424A was recently considered by a Full Court in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 186, reasons in which were published after the present appeal had been heard. In that case there was a sharp difference of opinion on the meaning of s 424A(3)(a) between, on the one hand, Moore J and on the other Kenny and Downs JJ. In their separate reasons both Kenny and Downs JJ referred with approval to the observations of Grey J in Baig v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 380. In Baig, Grey J considered whether the information in new items from Agence France Press was information "just about" a class of persons of which the applicant was a member.
In Baig, Grey J found that the material concerned did not fall within the exception exclusion in s.424A(3)(a) because it was not just about a class of persons of which the applicant or any other person was a member. It was specifically upon the question of the applicant's involvement in campaigning in a by election.
VHAJ is a different case concerning the effect of the Italian law governing resident workers, by virtue of which the Tribunal found that the applicants were entitled to re-enter Italy. Accordingly, being able to avail themselves of the effective protection of a third party state they were not persons to whom Australia owed protection obligations. In that context Kenny J at paragraphs [52-56] expressed understanding of the effect of the reason in Baig and said:
… if the information is relevant only because it concerns classes of individuals who have an attribute in common with the applicant or any other person, then the information would 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 campaigning for a by election and is not just about a class of persons that included him.
Her Honour goes on to consider the contrast between Baig and VAAC v Minister for Immigration & Multicultural Affairs (2002) FCA 573. And says:
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 reside in India, where he would not have a well founded fear of persecution on a Convention ground. There is no relevant difference, it seems to me, between the information at issue in VAAC and the information in this case. … For the purpose of paragraph 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other categorisation) 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.
In NARV their Honours said further at paragraph [29]:
The touchstone, according to the majority in VHAJ, is the manner in which the information is relevant to the Tribunal's decision. In VHAJ the questions to which the information was relevant were, first, whether a general class of persons (certain permit or visa holders) have a right to re-enter Italy, and, secondly, whether the applicant was a member of that class. However, in Baig the information "falls significantly upon the question" of the applicant's claims; at [33] according to Kenny J, if the information "is relevant to the Tribunal's decision only because it is about this (the relevant) class of persons" then it is information which is "just about" that class of persons, and as a consequence of s 424A(3)(a) the Tribunal need not put it to an applicant for comment.
At [31] their Honours said:
However, information may come before the Tribunal which, while perhaps relating to a class of persons, may also go to another issue which is relevant to the reasoning process of the Tribunal. It is conceivable that information will not necessarily fit into either of the two categories contemplated by s 424A(3)(a). If the information is not specifically about the applicant or another person and is also not "just about" a class of persons of which the applicant is a member, then this information would be the reason or part of the reason for affirming the decision that is under review it ought to be disclosed.
[32] In the instant case, the information was clearly not specifically about the appellant or another person. Nor was it "just about" a class of persons, if such a class is capable of being identified. Instead, the information was about a "very high level of document fraud in Bangladesh". The information went directly to the reliability or authenticity of documents placed before the Tribunal by the applicant. It is true that it was open in the present case to characterise the information as being about "documents in the possession of - of Bangladeshi asylum seekers" but applying VHAJ, that does not mean that information regarding the documents is "just about" Bangladeshi asylum seekers in the sense of merely, or only being about that class of persons. The information also goes to a separate issue in the proceedings; the weight to be attached by the Tribunal to particular documents relied upon by the appellant. That is clearly a matter on which the appellant should be heard. As the country information upon which the Tribunal relied did not fall within the exception contained in s 424A(3)(a), particulars of it should have been provided to the appellant.
Most of the country information in this case falls within the exception of s.424A(3)(a). There are only two parts which is said not to be "just about" a class of persons, they are:
a)the country information regarding the state of emergency legislation of 2 and 3 March 1997 which enabled the Tribunal to find that a call up of non-active military or reserve personnel was not required; and
b)the country information which related to the prevalence of forgery of official documents in Albania.
In relation to the first there is no breach of s.424A(1) because this information was brought to the attention of the applicant at the hearing and she was given an opportunity to respond to it. The transcript of proceedings before the Tribunal which was filed makes it clear at page 28 that the Tribunal brought to the applicant's attention that in its view from country information the law did not require the husband to do compulsory military service. The applicant said that she had documents at home in the form of a newspaper which corroborated her story and was given an opportunity by the Tribunal to submit that information. She responded by providing the newspaper article referred to and the call up notice. Invalidity of the Tribunal's decision is not a necessary consequence of any failure to comply with subsection 424A(2) irrespective of the absence of any unfairness, whether of substantive or procedural kind, and thus failure to convey the relevant information by the correct method or vehicle is not jurisdictional (NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102 at [23]).
In relation to the second, the call up notice sent to the Tribunal and in response to its invitation referred to above, after the hearing was dismissed as not being genuine as a result of the country information in relation to official documents in Albania. Similarly to the information in NARV, this information was not "just about" a class of persons but went to a separate issue in the proceedings, namely the weight to be attached by the Tribunal to the call up notice relied upon by the applicant. In this respect, the information is on all fours with that in NARV and as the Full Court in NARV said, it is a matter on which the applicant should have been heard. In that sense it did not fall within the exception in s.424A(3)(a).
The respondent contended that notwithstanding a breach of s.424A the decision was clearly supportable on other bases. In NARV at paragraph [18] the majority said:
On the other hand, there will no doubt be cases where it is not clear what, if anything, the complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, the Court is unable to see how a complainant has suffered "practical injustice", then the complainant may be required to adduce evidence to explain why he has been unfairly treated. Another example may be found in the case of re Minister for Immigration & Multicultural Affairs; ex parte "A" (2001) 185 ALR 489 at 500-1.
The situation in NARV's case was somewhat different from the present. In NARV the appellant swore an affidavit deposing that if the Tribunal had said to him at the hearing, or otherwise:
That the independent evidence indicates that there is a very high level of document fraud in Bangladesh and that may be a reason for rejecting his claim, he would have gone to collect more genuine documents by writing to [KM] or calling him.
This affidavit was received in evidence. The Full Court in NARV opined for itself what other things the appellant could have done such as calling the writer to give evidence by telephone or video link, or inviting the Tribunal to contact the writer by telephone or facsimile. Another course was to seek to have the existence of the writer and truth of letter verified by evidence. The Full Court said at [19]:
The availability of these courses of action (and others as well) is apparent without the need for any evidence.
I agree with the contentions of the respondent that the facts in NARV are quite different from the present case. The applicant provided the call up notice following the hearing and as a result of an invitation by the Tribunal in response to country information. She did not seek to call on her husband to independently verify the call up upon which she was always relying as part of her claim, and it was he who had allegedly received the document. At that level it is hard to see how any practical injustice arose. Furthermore, because of the general nature of the comments regarding document fraud in Albania it is difficult to see how she would have been able to refute the country information and, as indicated, she had declined to call evidence from her husband at the hearing, which evidence would have fallen directly on this issue.
I also agree with the respondent's submission that the call up notice needs to be seen in context. It was an additional and unnecessary part of the decision. The applicant's claim was a fear of persecution for Convention reasons following the kidnapping of her daughter. The fear was that her daughters would be at risk of kidnap if she returned to Albania. The Tribunal independently rejected the kidnapping as having occurred for a Convention reason and the applicant herself was able only to speculate on why it might have occurred. The Tribunal accepted there was a kidnapping but said that the most likely explanation, and one proffered by the applicant, was because her husband was considered to be wealthy. The second reason advanced was because of a possible family feud which the Tribunal rejected, and clearly rightly so on the evidence. The third was the possibility of it being the result of an adverse political opinion imputed to her because her husband had refused to participate in the mandatory call up for the army. However, in the absence of any evidence to support a finding that the authorities or agents of the state had any involvement in the kidnapping the Tribunal was entitled to reject the kidnapping as having been Convention based. This finding stand alone and does not depend upon a rejection of the call up notice, or more broadly that the applicant's husband may have refused to participate in the mandatory call up as alleged.
The applicant appears to have relied upon an independent ground namely that she was at risk of persecution because of her husband's adverse political profile. At Court Book, page 84 she claimed that:
Her husband has been persecuted by the government and police and many people are interested in making her life difficult in the hope that her husband will return and that they may gain revenge.
She stated that her husband failed to perform military service and feared that she may be held for ransom or raped to ensure that her husband returned to Albania. The issue of the fact as to whether or not her husband was called up must be seen in the context of this claim. The applicant provided no evidence of persecution by the government or police of the husband or that her life had been made difficult for this reason. Although her husband had been living in Australia since mid-1997 and she and her two children did not arrive in Australia until April 2000 there was no evidence before the Tribunal that she was at risk of persecution because of her husband's adverse political profile even if the Tribunal had accepted the call up notice as valid. There were apparently three years in which she could have been affected as alleged and no evidence had been provided. This part of the applicant's case was nothing more than a claim to be at risk unsupported by any evidence that it was so (even if the Tribunal had accepted the underlying premise that the husband had been called up and had refused to do military duty).
I do not agree with the respondent's contention that the finding that the call up notice was a forgery "stood alone" of the country information. However, given the context of this information, the claims of the applicant, although the rejection of the call up notice was a part of the decision of the Tribunal it was, in my view, an unnecessary part and would not have created a practical injustice even if the applicant had been able to demonstrate that the call up notice was genuine.
The gravamen of the Tribunal's decision was that there was no evidence upon which it could conclude that the kidnapping, or the other claims by the applicant, were for a Convention related reason and thus was entitled to find that the applicant had not satisfied the criterion set out in s.36(2) of the Act.
For these reasons the application must fail.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 14 July 2004
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