NAQY and NAQZ v Minister for Immigration
[2002] FMCA 355
•6 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQY & NAQZ v MINISTER FOR IMMIGRATION | [2002] FMCA 355 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – failure to put adverse country information to the application – whether s.424A breached – no reviewable error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474
Migration Regulations
NAAV v Minister for Immigration [2002] FCAFC 228
NASQ v Minister for Immigration [2002] FMCA 305
QAAD v Minister for Immigration [2002] FCA 1038
Re Minister for Immigration; ex parte A (2001) 185 ALR 489
W25201A v Minister for Immigration [2002] FCA 50
WAFA of 2002 v Minister for Immigration [2002] FCAFC 248
| Applicants: | NAQY NAQZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Nos: | SZ832 of 2002 SZ848 of 2002 |
| Delivered on: | 6 December 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 6 December 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr J Eyeson-Annan |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The applications are dismissed.
Each applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $2,000 in each matter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ832 of 2002
SZ848 of 2002
| NAQY, NAQZ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These ex tempore reasons relate to two applications which I have heard concurrently from a husband and a wife seeking review of two decisions made by the Refugee Review Tribunal (“the RRT”) on 18 June 2002 and handed down on 10 July 2002. In each case the RRT decided to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa. The applications as filed sought judicial review under s.39B of the Judiciary Act 1903 (Cth) but did not specify grounds. However, the applications were supported by affidavits filed on the same day that asserted that the procedures laid down by the Migration Act 1958 (Cth) (“the Migration Act”) and the Migration Regulations (“the Regulations”) were not observed by the RRT in making its decision, and that there was no evidence or other material to justify the making of the decision.
The first ground was pressed in written submissions prepared by Mr Eyeson-Annan, on behalf of the applicants. The second ground was not developed further. In his written submissions, Mr Eyeson-Annan asserts that the RRT breached s.424A(1) of the Migration Act by failing to give notice to the applicants of information relied on by the presiding member concerning the prevalence of fraudulent documents obtained from Bangladesh in support of protection visa applications. Mr Eyeson-Annan developed this argument in oral submissions. He asserts that not only was the section breached, but that the breach is not protected by the privative clause in s.474(1) of the Migration Act.
He also asserts that the applicants were not given a fair hearing, that there was a reasonable apprehension of bias on the part of the presiding member and that the RRT did not act in good faith on the basis that the information that should have been provided pursuant to s.424A was intentionally withheld. In response, Mr Bromwich, for the Minister, submits that no error of law has been disclosed and, in particular, that s.424A has not been breached because the exception in s.424A(3) applies. Mr Bromwich submits that, in any event, a breach of s.424A is protected by the privative clause, as is a breach of the rules of procedural fairness under the general law.
I dealt with this issue recently in the case of NASQ v Minister for Immigration [2002] FMCA 305. In that case, I held that there was an implication to be derived from a decision of the majority in NAAV v Minister for Immigration [2002] FCAFC 228 that the privative clause will protect a breach of s.424A. I also noted that her Honour Kiefel J, in the case of QAAD v Minister for Immigration [2002] FCA 1038 reached the same conclusion specifically. I found in NASQ that although s.424A had been breached, the breach was protected by the privative clause. Given that the High Court is presently considering the validity of the privative clause, it is appropriate that I should consider whether in fact s.424A has been breached in this case, even though I have already found in other proceedings that a breach is protected by the privative clause. That is so notwithstanding that I am bound by the decision of the Full Federal Court in NAAV that the privative clause is constitutionally valid. It is possible that within a short time the High Court may reach a different conclusion. It would be preferable if the parties were not required to return to Court to further litigate the matter.
Section 424A(1) provides that, subject to s.424A(3), the RRT must give to the applicant in the way that the RRT considers appropriate in the circumstances particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision that is under review and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and invite the applicant to comment on it.
Section 424A(2) deals with the manner in which information must be provided. Although there is no specific evidence before me, I have proceeded on the basis that information was not given to these applicants in accordance with s.424A(1) concerning the prevalence of fraudulent documents being obtained from Bangladesh. This is country information which is commonly resorted to by the RRT in relation to protection visa applications from Bangladeshis or persons claiming to be Bangladeshis. The first question is whether s.424A(1) applies. It does not apply if the relevant information was not the reason or part of the reason for affirming the decision that is under review.
In this case, the RRT found that the applicants were Indian nationals, notwithstanding that they were asserting that they were Bangladeshi nationals. It is clear from the reasons for decision in both of these matters that the presiding member formed the view that the applicants were Indian nationals on the basis that they held Indian passports which he accepted were genuine. At the same time the presiding member rejected as fraudulent documents advanced by the applicants to establish their Bangladeshi nationality. The matter was argued before me on the basis that it was not possible for the applicants to be dual nationals of India and Bangladesh. They would have to be nationals of one country or the other. It seems that they had spent some time in both countries and that as Bengalis they had ethnic links to both Bangladesh and West Bengal State in India. In such circumstances, nationality can be difficult to determine.
In the matter of NAQZ, at paragraph 73 of the reasons for decision (court book, page 301) the presiding member introduced the issue of document fraud in Bangladesh. He developed that issue in paragraph 74. I am satisfied that the issue of document fraud formed part of the reason for affirming the decision under review in that it assisted the presiding member in determining that documents relied upon by these applicants were fraudulent. It did not assist the presiding member in satisfying himself that the Indian passports held by the applicants were genuine. While the presiding member determined on the basis of those passports that the applicants were Indian nationals, he also determined that they were not Bangladeshi nationals. In my view, the country information was a relevant part of the latter determination. On that basis, I find that subject to s.424A(3), s.424A(1) applies to the country information relied upon by the presiding member.
Section 424A(3)(a) provides that the section does not apply to information that is not specifically about the applicant or another person or is just about a class of persons of which the applicant or another person is a member. Mr Bromwich took me to two decisions of the Federal Court which, in his submission, establishes that country information is information that is not required to be disclosed, pursuant to s.424A(3)(a). The first of those is a decision of His Honour Nicholson J in the matter of W25201A v Minister for Immigration [2002] FCA 50, decided on 5 February 2002.
In that case, at paragraph 13, His Honour states that s.424A(3) establishes that there is no obligation on the Tribunal to put country information to an applicant. That proposition was referred to without apparent dissent by the Full Federal Court in the matter of WAFA of 2002 v Minister for Immigration [2002] FCAFC 248 at paragraph 12. Mr Eyeson-Annan sought to distinguish those cases, but, in my view, they are persuasive authority for the proposition that country information is not required to be put to an applicant by reason of the operation of s.424A(3A).
I note that in the matter of Re Minister for Immigration; ex parte A (2001) 185 ALR 489, His Honour Kirby J, in what were apparently obiter comments, expressed some concern about the proposition that no country information was required to be put to an applicant under s.424A(1). It does not seem, however, that his Honour's comments have been adopted by other members of the High Court, or indeed in any decision of the Full Federal Court.
In NASQ, I drew a distinction between country information which forms part of the general body of information always available to the RRT which the RRT can access in any case, and information which is specifically sought by the RRT following a hearing in response to claims made by a particular applicant and which relates at least in part to that applicant. The information that we are dealing with in this case clearly falls into the first category.
In the circumstances, I find that by reason of the operation of s.424A(3)(a) there was no obligation on the RRT to put country information relating to Bangladeshi document fraud to the applicants. Having made that finding, it is unnecessary for me to consider whether the RRT failed to make a decision in good faith by failing to meet an obligation under s.424A to provide information to the applicants. As a matter of law, the RRT did not breach that obligation so it could not have shown a lack of good faith evidenced by such a breach.
Mr Eyeson-Annan also asserted that the decision of the presiding member in these cases established a reasonable apprehension of bias. I understood him to be drawing the assertion from the decision as a whole, not limited to the issue of the asserted breach of s.424A. Even if he could establish that proposition, and I am not persuaded that he can, a breach of the rule against bias on the basis of reasonable apprehension, which forms part of the rules of procedural fairness, would be protected by the privative clause on the clear authority of NAAV unless, possibly, that breach also constituted a breach of an inviolable precondition on the exercise of power by the RRT. Mr Eyeson-Annan submits that s.424A is itself such an inviolable precondition. I reject that submission for the same reasons as I did so in NASQ.
It may be arguable that for other reasons the proceedings before the RRT in this matter were unfair. It may be arguable that the presiding member failed to put properly to these applicants or at all that Bangladeshi documents that they were relying on were fraudulent. It seems from the reasons for decision of the RRT that the presiding member concentrated on the Indian passports in putting questions to the applicants and gave scant, if any, attention to the Bangladeshi documents in asking questions. He did, however, in his reasons for decision, place considerable emphasis on the fact that he regarded the Bangladeshi documents relied upon by the applicants as fraudulent. It is somewhat surprising that it is not apparent from the reasons for decision of the RRT in these matters that the issue of the status of the Bangladeshi documents was put to the applicants, especially as the delegate of the Minister and the RRT in a previous consideration of protection visa applications by these applicants had decided that the applicants were Bangladeshi nationals rather than Indians.
I do note that the Bangladeshi documents were before the RRT at the hearing and that they had been advanced by the applicants, but I am surprised at the dearth of discussion about those documents in the section of the reasons for decision dealing with maters that were put to the applicants. Nevertheless, I am not pursuaded that in general terms the proceedings before the RRT were procedurally unfair. Even if I were so pursuaded, it is clear from the decision of the Full Federal Court in NAAV that any such procedural unfairness would be protected by the privative clause. In the circumstances I will dismiss the applications.
On the question of costs, Mr Bromwich has sought an order for costs. In accordance with the general principle that costs follow the event the Minister is prima facie entitled to such an order. Mr Eyeson-Annan, for the applicants, did not contest that but asked me to take into account the limited means of the applicants and the importance of these proceedings to them. I do not regard the impecuniosity of an applicant as a reason for not making an order for costs, although it may be a reason for the successful party not to pursue recovery of those costs. That is a matter that could be appropriately discussed between the parties. I will make an order for costs. In accordance with my general practice in the migration jurisdiction, I will fix an amount of costs.
The amount of preparation required for these proceedings was significant in terms of the assembly of documents because of the long history of the applications made by these applicants. Nevertheless, the issues raised in the applications were relatively straightforward. Mr Bromwich was not required to prepare particularly complex submissions. The law in relation to s.424A and the application of the privative clause, while not completely settled, is somewhat more clear than the law relating to a number of other issues in relation to the privative clause. In the circumstances, I am not persuaded that an order for costs in excess of $4,000 in relation to both matters would be justified. In each matter, I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application which I fix in the sum of $2,000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 January 2003
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