NAOS v Minister for Immigration
[2004] FMCA 94
•24 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOS & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 94 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – denial of procedural fairness – decision-maker obliged to disclose adverse information that is credible, relevant and significant to the decision – evidence of adverse effect on applicants not a precondition to relief – jurisdictional error in failing to give particulars of information pursuant to s.424A of the Migration Act 1958 (Cth). WORDS AND PHRASES – “just about a class of persons”. Migration Act 1958 (Cth), s.424A VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 |
| Applicants: | NAOS & NAOT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1246 of 2003 |
| Delivered on: | 24 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 24 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicants appeared on their own behalf.
| Solicitor for the Respondent: | Mr Peek |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
BY CONSENT:
The Application is remitted to the Refugee Review Tribunal.
A writ of certiorari is to issue, quashing the decision of the Refugee Review Tribunal of 10 March 2003.
A writ of mandamus is to issue requiring the Refugee Review Tribunal to hear and determine the applicants’ application for a protection visa.
The Respondent is to pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1246 of03
| NAOS & NAOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision made by the Refugee Review Tribunal on 10 March 2003. The decision that was made was to affirm the decision of the delegate of the Minister to refuse to grant a protection visa to the applicants.
The background to this matter is that the applicants travelled to Australia from Sri Lanka. They sought the issue of a protection visa alleging a well-founded fear of persecution for a Convention reason. The Refugee Review Tribunal affirmed the decision not to grant a protection visa.
The applicants have argued that the Tribunal in arriving at this decision failed to comply with section 424A of the Migration Act. The failure to comply concerns a failure by the Tribunal to give particulars to the applicants concerning a politician named Richard Pathirana. On page 11 of the Tribunal decision, which appears at page 260 of the Court Book, information is provided relating to statements and actions by Mr Pathirana. It is the applicants' case that they were not given that information and therefore were not put into a position where they could respond to that which was put forward by Mr Pathirana. As the Tribunal relied, at least to some extent, on that information they say that the Tribunal has not complied with section 424A of the Migration Act.
Mr Peek for the Australian Government Solicitor has referred the Court to the decision of VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186. That is a decision of the Full Court of the Federal Court handed down on 15 August 2003. Mr Peek has also referred me to a later decision of the Full Court. This decision NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 which was not handed down until 24 November 2003. I note that the amended application had been filed on 14 October 2003, so neither the applicant nor the respondent were aware of the decision at the time these proceedings commenced. The decision of the Full Court in NARV can perhaps be seen as a modification of the earlier decision in VHAJ.
It is certainly clear that a decision maker is obliged under the provisions of section 424A to disclose adverse information that is credible, relevant and significant to the decision. It is not a precondition to relief that evidence should be given of that adverse effect.
The Full Court held that subsection 424A(3) contains an exemption to the operation of that section. There are two limbs of that section both of which must be satisfied in order to be exempt from the operation of the section. The Full Court held that the two limbs are:
(i)information that is not specifically about the applicant or another person, and
(ii)two, information that is just about a class of persons of which the applicant or other person is a member.
It is, however, a mistake to regard all information as falling into one or other of two mutually exclusive categories of information. The Full Court went on to hold (at paragraph 31):
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 section 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 if the information would be the reason or part of the reason for affirming the decision that is under review it ought to be disclosed.
The respondent has taken the view that the decision in NARV (supra) applies to the proceedings before me today. I am satisfied that the respondent's view is correct. It is for these reasons that I propose to allow the application.
I would also add that another issue has been raised by means of a notice of motion. The applicants sought an order to vacate the hearing date of this matter and gave notice of a constitutional matter pursuant to section 78B of the Judiciary Act 1903. I have had tendered to the Court this afternoon a letter from the Australian Government Solicitor on behalf of the Commonwealth Attorney General. The relevant parts of the letter are these, and I quote:
The Commonwealth Attorney General will not be intervening in this proceeding in the Federal Court nor will he be applying to remove the cause from that court to the High Court. If the proceeding is taken further on appeal or is removed to the High Court the Attorney General might decide to intervene at that stage. This would be considered upon the receipt of the appropriate notice under section 78B of the Judiciary Act 1903.
In view of the fact that the respondent has consented to an order allowing the application for review of the decision of the Refugee Review Tribunal there is no further need for the Court to consider the constitutional matter which was being raised. The only comment I would make about the letter from the Australian Government Solicitor is that, no doubt through a typing error, the letter refers to the Federal Court and not the Federal Magistrates Court. This proceeding, of course, is being heard in the Federal Magistrates Court. The meaning of the letter, however, is quite clear.
It is for these reasons that I make the Orders as set out at the commencement of this decision.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 27th February 2004
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