NATL v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1398

FEDERAL COURT OF AUSTRALIA

NATL v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1398

NATL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N909 of 2002

WILCOX J
SYDNEY
8 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N909 of 2002

BETWEEN:	NATL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	8 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N909 of 2002

BETWEEN:	NATL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) refusing an application for a protection visa.  The case is unusual in that the instant decision was the second decision made by the Tribunal, an earlier decision having been set aside in this Court.

2. The thrust of the applicant's case before the Tribunal was that he is an Iranian citizen who had converted to Christianity and would be in danger of persecution on account of religion if returned to Iran.  The reasons for the decision of the second Tribunal included lengthy reference to the information that was put before the Tribunal at its first hearing.  That hearing was conducted by a different member.

3. The reasons for the decision of the first Tribunal are not before the Court.  However, the reasons for the decision of the second Tribunal set out, at some length, various matters that were before the first Tribunal.  The second Tribunal referred to documents that had been received by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) and/or the Tribunal which contained allegations casting doubt upon the applicant's claim to have converted to Christianity.

4. One document was said to have been received from an unidentified Iranian community organisation. There was also a reference to a document said to have been received by an organisation referred to as the Australian Kurdish Friendship and Cultural Association (“the Association”).  There was also information said to have been provided by the proprietor of a martial arts centre at which, apparently, Islamic prayers were offered during the course of training sessions.

5. It is clear from the reasons of the second Tribunal, and this is accepted by Mr Nair, counsel for the applicant, that the substance of these allegations was canvassed at the first hearing.  However, it is claimed by the applicant that he was never informed of the identity of the Iranian community organisation which had sent the first document to which I have referred.  He also says that he was not provided with the Association’s contact details or the name of the proprietor of the martial arts centre, although the name of the centre was given to him.

6. The substance of the applicant’s complaint is that, as he did not have the above information, it was not possible for him to investigate the circumstances in which the documents were sent to the Tribunal, or effectively to challenge the claims that they made. 

7. I understand it would have assisted the applicant, in dealing with the matter at the first hearing, if he had had these pieces of information. It is another question whether the failure of the first Tribunal to provide that information constituted a breach of s 424A of the Migration Act 1958 (“the Act”). That section requires the Tribunal:

   “[To] 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 part of the reason, for affirming the decision that is under review.”

   The Tribunal is also required to “ensure, as far as reasonably practicable, that the applicant understands why it is relevant to the review” and “invite the applicant to comment on it”. 

8. I think the choice of language is significant. The Tribunal is to give particulars of the information. The Tribunal is not required to reveal the identity of the informant(s). A moment's reflection will indicate that this distinction is important. It must often happen that the Department, or the Tribunal, receives information from a person who wishes to remain unidentified, because of fear of reprisal, notwithstanding the information may be material to a claim. The weight to be given to information supplied by somebody who is not prepared to have his or her identity revealed is one matter. I think a decision-maker ought to be cautious about placing significant weight on information of that nature. However, the question of weight does not arise in this case; certainly not for the Court. The question is whether it was a failure to comply with s 424A to decline/fail to give particulars of the identity of the informant(s).

9. The Court does not have the transcript of either Tribunal hearing. Accordingly, the comment I have made is based on the assumption that it is correct that no information about the informant(s) identity was provided.  I do not find this as a fact because I do not have any material to rely upon.

10. I have pointed out the alleged failure occurred at the first Tribunal hearing.  It is not suggested that new material arose at the second Tribunal hearing.  This fact has some significance.  Even if the applicant was taken by surprise in relation to these documents at the first Tribunal hearing, he must have known of the substance of the allegations that were made against him before commencement of the second Tribunal hearing.  Yet it seems he took no action to investigate the matters about which he claims he would have made investigation.  Once again, I cannot state this as a fact because I do not have the transcript of the material but I assume in his favour that he was still ignorant of the identity of the informant(s) before the second hearing.

11. I have considerable doubt whether there was a failure to comply with s 424A of the Act. But I do not think it is necessary for me to reach a concluded view about that matter. In my opinion this ground is not available to the applicant because of the terms of s 474 of the Act. The section applies as the relevant decision was given after 2 October 2001.

12. It is clear beyond question that the view expressed by the majority in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228 would exclude a ground that was based upon s 424A of the Act. Von Doussa J dealt with this in express terms (see paras 631 and 633). Beaumont J agreed with Von Doussa J in respect of all matters.

13. The Chief Justice took a different view from those two judges in respect of the cases of Mr Wang and Mr Turcan. However, he did so on the basis that, in their cases, there were two separate decisions to be made. Both had a statutory requirement in respect of the provision of information before there could be a valid second decision. The ability of the decision-maker to make the second decision depended upon compliance with the statutory condition precedent. That is not the position in relation to s 424A. There, only one decision is required. The section imposes a procedural requirement in respect of making the visa decision but the jurisdiction to make that decision does not depend upon compliance with s 424A. It depends upon the applicant having invoked the Tribunal’s jurisdiction by filing an application for review. The Chief Justice's view in respect of Mr Wang and Mr Turcan would not go so far as to cover the situation which is argued in the present case.

14. French J and I took a view different from the majority in some respects, particularly in regard to procedural fairness. However, neither of us said anything about s 424A. I do not think the applicant’s argument gains support from the minority view. It does not matter whether or not this is correct. There is a clear view by three members of the Court that is antagonistic to the applicant’s argument.

15. It is fair to say that, in a technical sense, the views of the three members of the Court were obiter dicta. None of the five cases depended upon failure to comply with s 424A. However, the dicta was given in a case that was extensively argued by a number of counsel and in which the scheme of the Act was considered in detail. It would be wrong for me to reject the clearly expressed view of three members of the Full Court, simply on the basis that it was technically dicta. Accordingly, I cannot give effect to the submission of non-compliance with s 424A, even assuming that there is a proper factual basis for saying that there was a non-compliance.

16. The other ground raised on behalf of the applicant was a failure to provide procedural fairness.  However, Mr Nair readily acknowledged that this argument was not open, having regard to the fact that three members of the Full Court in NAAV expressly held that s 474 excluded procedural fairness. That holding was not dicta; it was directly relevant to the case argued on behalf of the appellant code-named NAAV.

17. It follows that I have no option but to dismiss the application.

18. The Minister seeks costs and Mr Nair accepts that there is no reason why I should depart from the usual rule.  Accordingly, the order of the Court will be that the application is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             8 November 2002

Counsel for the Applicant:	Mr R Nair
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2002