MZWEL v Minister for Immigration and Multicultural Affairs

Case [2006] FCA 442

FEDERAL COURT OF AUSTRALIA

MZWEL v Minister for Immigration and Multicultural Affairs [2006] FCA 442

MIGRATION – application for extension of time to file notice of appeal - s 424A of the Migration Act 1958 (Cth) – whether contents of letter constituted “information” under s 424A – whether there was an alternative basis for Refugee Review Tribunal’s decision – extension of time granted and appeal allowed

Federal Court Rules, O 52 r 15(2)
Migration Act 1958 (Cth), s 424A

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 discussed
VAAC vMinster for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 referred to
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 referred to
SAAP Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 referred to

MZWEL v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 105 OF 2005

KENNY J
8 MAY 2006
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 105 OF 2005

BETWEEN:

MZWEL
APPLICANT/APPELLANT

AND:

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

8 MAY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Leave be granted to amend the notice of appeal in the form proposed at the hearing on 24 April 2006.

2.The application for an extension of time in which to file and serve the notice of appeal be granted.

3.The Refugee Review Tribunal be joined as a party to the appeal.

4.The appeal be allowed.

5.The orders made by the Federal Magistrate on 21 January 2005 be set aside, and in lieu thereof the Court orders that:

a)   The Refugee Review Tribunal be joined as a party to the application.

b)There be an order in the nature of certiorari to quash the decision of the Tribunal made on 20 January 2004 and handed down on 13 February 2004;

c)There be an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant;

d)The first respondent pay the costs of the applicant before the Federal Magistrates Court.

6.The first respondent pay the appellant’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 105 OF 2005

BETWEEN:

MZWEL
APPLICANT

AND:

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

KENNY J

DATE:

8 MAY 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant, who has been self-represented until the adjourned hearing on 24 April 2006, seeks an extension of time in which to file and serve a notice of appeal from a judgment of a Federal Magistrate pronounced on 21 January 2005.  The first respondent opposes the grant of such an extension.…

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Details
AGLC
MZWEL v Minister for Immigration and Multicultural Affairs [2006] FCA 442
Case
[2006] FCA 442
Decision Date

CaseChat Overview and Summary

In the case of MZWEL v Minister for Immigration and Multicultural Affairs, the applicant, MZWEL, sought to appeal against the decision of the Refugee Review Tribunal (RRT) which affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse a protection visa. The applicant sought leave to amend the notice of appeal and extend the time for filing and serving the notice of appeal. The court was required to determine whether the proposed new ground of appeal, which included the RRT's reference to country information, was a valid ground for appeal. The court also needed to determine whether the applicant's failure to object to the RRT's reference to country information was a breach of procedural fairness.

The court found that the RRT was not obliged to give particulars of the country information to the applicant since it was information about a class of persons and not specifically about the applicant. The court held that there was no breach of s 424A of the Act arising from the fact that the applicant was not given the country information referred to in the RRT's reasons before the RRT made its decision. The court also found that the RRT's reasons, taken as a whole, did not disclose any breach of the rules of procedural fairness involved in the RRT's reliance on this information.

The court granted leave to amend the notice of appeal in the form proposed at the hearing on 24 April 2006. The court also granted the application for an extension of time in which to file and serve the notice of appeal. The court allowed the appeal, set aside the orders made by the Federal Magistrate on 21 January 2005, and ordered that the RRT be joined as a party to the application. The court further ordered that there be an order in the nature of certiorari to quash the decision of the Tribunal made on 20 January 2004 and handed down on 13 February 2004, and an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant. The court also ordered that the first respondent pay the costs of the applicant before the Federal Magistrates Court.

Orders

Orders of the court

1. Leave be granted to amend the notice of appeal in the form proposed at the hearing on 24 April 2006.

2. The application for an extension of time in which to file and serve the notice of appeal be granted.

3. The Refugee Review Tribunal be joined as a party to the appeal.

4. The appeal be allowed.

5. The orders made by the Federal Magistrate on 21 January 2005 be set aside, and in lieu thereof the Court orders that:

a) The Refugee Review Tribunal be joined as a party to the application.

b) There be an order in the nature of certiorari to quash the decision of the Tribunal made on 20 January 2004 and handed down on 13 February 2004;

c) There be an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant;

d) The first respondent pay the costs of the applicant before the Federal Magistrates Court.

6.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

Since I could form no view on the prospects of success without hearing argument, I have heard counsel for the applicant and the respondent on the proposed new ground, without ruling on the application for leave. This argument covered both the significance, for these purposes, of the RRT’s reference to the standard letter (foreshadowed at the 10 March hearing) and the significance, for these purposes, of the RRT’s reference to the form and content of the applicant’s evidence to the delegate. The first respondent’s counsel did not oppose this course and, in particular, he did not submit that he was unable to deal with both aspects of the proposed new ground of appeal at the hearing of 24 April 2006. CONSIDERATION Section 424A of the Act requires the RRT to give the applicant, in the way the RRT considers appropriate, particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it: s 424A(1). The information and invitation must be given by a prescribed method: s 424A(2). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant and is just about a class of persons, or information that the applicant gave for the purpose of the application, or non-disclosable information: s 424A(3). I will deal first with the issue of country information, which the applicant raised on 10 March 2006. In its reasons for decision, the RRT referred to country information in support of its finding that, “in current circumstances and the foreseeable future”, “the applicant does not face a real chance of harm, or interest from either the LTTE or the Government because of his mixed ethnicity or the fact that he had moved to Colombo from Jaffna in 1983”. This country information referred to the ceasefires announced by the LTTE and the Sri Lankan Government, peace talks, and other changes in internal security in Sri Lanka. It is worth noting, however, that the RRT also recognized that, since the publication of the report containing this country information, “the ceasefire negotiations have continued although not without some violent incidents continuing and uncertainties on both sides of the conflict that have caused some concern about the long term viability of the process”. It is clear from the RRT’s reasons that the country information to which it referred was not specifically about the applicant and was just about a class of persons, however that class is defined. In consequence, by virtue of s 424A(3), the RRT was not obliged to give particulars to the applicant of such information. There was, therefore, no breach of s 424A of the Act arising from the fact that the applicant was not given the country information referred to in the RRT’s reasons before the RRT made its decision. Further, the RRT’s reasons, taken as a whole, do not disclose any breach of the rules of procedural fairness involved in the RRT’s reliance on this information. Even if there were, given the RRT’s cautious approach to the country information, it cannot be said that it might have reached a different decision had the applicant been able to submit (as he said he would have done) that there remained real risks, especially for the poor.