VWDC v Minister for Immigration and Multicultural Affairs

[2006] FCA 728

FEDERAL COURT OF AUSTRALIA

VWDC v Minister for Immigration and Multicultural Affairs
[2006] FCA 728

MIGRATION – appeal – s 424A of Migration Act 1958 (Cth) – meaning of information given “for the purpose of the application”

WORDS AND PHRASES – “for the purpose of the application”

Migration Act 1958 (Cth), s 424A

Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 distinguished
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 discussed
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 cited
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 followed
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 followed
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 followed

VWDC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 113 of 2006

FINKELSTEIN J
2 JUNE 2006

MELBOURNE

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 113 of 2006

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:	VWDC Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	2 JUNE 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.

2.        The appeal be dismissed.

3.        The appellant pay the respondents’ 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 113 of 2006

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:	VWDC Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL Respondents

JUDGE:	FINKELSTEIN J
DATE:	2 JUNE 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This case comes to the Court on appeal from the Federal Magistrates Court.  There, the Federal Magistrate upheld the Refugee Review Tribunal’s decision affirming the denial of the appellant’s application for a protection visa.  The appellant is a citizen of Sri Lanka and is also the mother of two children.  She grew up in a family that had an active history in the United National Party (“UNP”).  At the age of twenty-one she became involved personally with the UNP and later went on to become President of the Women’s Front of the parliamentary seat.  In this capacity, she alleges she was actively involved in campaigning and fundraising for the party, often making donations of her own to the UNP.  She also alleges that she made frequent speeches on behalf of the UNP and the Women’s Front, some of which spoke out against rival political parties.

2. Following the UNP’s loss in the general and Presidential elections in 1994, the appellant alleges that she and her family were harassed and threatened by the winning party: the People’s Alliance (“PA”).  The appellant claims that her house and car were attacked and vandalised with stones, and that windows were broken.  Frequently she believed she was followed home by members of the PA or saw men loitering around the front of her house.  She also claims that threatening phone calls were made to her home and to the family business that threatened to “hurt” or “torture” her or her family if she did not cease participation in the UNP.  According to the appellant, these threats went so far as to threaten to kidnap her children and/or kill members of her family, and the appellant claims she was once accosted by men on motorcycles who repeated similar threats. She believes all these threats came from members or supporters of the PA. 

3. As I explained to the appellant, but I will repeat again, both the Federal Magistrates Court in its original jurisdiction and this Court on appeal have only limited power to review decisions made by government agencies.  The tribunal is the entity responsible for examining the facts that lie behind an application for refugee status and making findings of fact.  The Court’s function is merely to scrutinise the process through which the tribunal ascertained those facts, reached its conclusions, and then applied its findings to the relevant law.  Absent procedural error or error as to the law itself, the courts have no power to set aside the tribunal’s decision. 

4. In terms of legal error, this appeal presents one issue: whether the tribunal failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth). That section provides that the tribunal must give to the applicant particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision under review; must ensure that the applicant understands why the information is relevant to the review; and must invite the applicant to comment on it.

5. In fact it is not the appellant but the first respondent who has raised the possibility that the tribunal decision may have been based on information not provided to the appellant under s 424A. The first respondent’s counsel referred to decisions in the High Court to the effect that the tribunal must strictly comply with s 424A (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162). Thus, any finding that information was not properly provided would be a jurisdictional error and the tribunal’s decision would necessarily be vacated by this Court.

6. The first instance involves the dates on which the Sri Lanka Provincial Council elections occurred.  The tribunal states in its Findings and Reasons:

   “[t]he applicant had submitted in her protection visa application lodged in July 1999 that she had been recently involved in the Provincial Council election campaigns but stated at the hearing that she assisted with the 1996 Provincial Council elections.  There were, however, no such elections in 1996; rather these occurred in 1999, in the months before her departure for Australia.”

   The tribunal then went on to explain that this inconsistency was one consideration that led the tribunal to doubt the truth of the appellant’s story.

7. At first blush, it might appear that the tribunal was comparing written information from the appellant’s visa application with the appellant’s testimony at the hearing.  In its reasons, however, the tribunal explained that the appellant’s visa application was merely the medium that raised the issue for the tribunal:  see eg SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [49]-[50] per Moore J; at [244] per Allsop J. The inconsistency itself arose between the appellant’s testimony that she participated in 1996 Provincial Council elections, and the independent country information stating that the scheduled 1996 elections never occurred and were, instead, postponed until nearly 1999: see ibid. Thus, the information which is relevant for the purposes of s 424A is the independent country information and the appellant’s hearing testimony.

8. Section 424A(3)(b) provides that information given by an applicant for the purpose of the application is exempted from the disclosure requirements of s 424A. While some cases might call into question when, specifically, information is given “for the purpose of the application”, I think it is beyond question that testimony given by an applicant in a statutory hearing pursuant to s 425 of the Migration Act is given in support of, and therefore “for the purpose of”, the application.

9. Similarly, with regard to independent country information, s 424A(3)(a) exempts such general information from the requirements of s 424A when it is not specifically about the applicant or another person. This is established by numerous Full Court authorities: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 at 562-563 per Gyles and Conti JJ, at 564 per Allsop J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168. Thus, with regard to the first instance of possible error, I find no violation of s 424A by the tribunal.

10. The second possible error concerns the tribunal’s emphasis on the sequence of events surrounding a visit to Australia by the appellant and her husband.  In the appellant’s statutory declaration of 2003 in support of her application to the tribunal, she stated that she and her husband came to Australia for a visit in March 1999, during which time she learned that the lives of her children had been threatened.  Upon her return to Sri Lanka, in April 1999, she claims that she was stopped and threatened by men on motorbikes.  During the tribunal hearing, however, the tribunal noted that the appellant first testified that she came to Australia with her husband after the incident with the men on motorbikes.  When questioned by the tribunal about this discrepancy, the appellant changed her story and testified in accordance with her statutory declaration. 

11. The information relied upon by the tribunal, then, is comprised of the appellant’s testimony during her hearing, and the appellant’s statutory declaration (which is not to be confused with her original visa application made in 1999). Both the testimony and the statutory declaration were given directly to the tribunal by the appellant to assist the tribunal in its review of her application. Accordingly, under s 424A(3)(b), they are exempted from the disclosure requirements of s 424A, and there was no error on the part of the tribunal in noting and relying on evident inconsistencies.

12. Since I have determined that the “information” in question all qualifies under the statutory exemption in s 424A(3), it is not necessary to examine the specifics of whether and how the information was relayed to the appellant. I do note, however, that the High Court’s ruling in SAAP makes it clear that any information required under s 424A must be given to an applicant in writing: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 183 per McHugh J; at 196 per Gummow J; at 205 per Hayne J. This would be necessary even in a situation where the tribunal discusses adverse information with an applicant during the hearing and gives the applicant an opportunity to comment. Thus, were any of the information at issue in this case not subject to exemption under s 424A(3), the appellant might very well have succeeded in her appeal.

13. Finally, I wish to say a brief word about an authority cited by the appellant during the hearing.  Appearing on her own behalf, the appellant referred to one case in support of her argument.  The case, Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16, is one where the Full Court allowed an appeal on multiple grounds, including failure of the tribunal to comply with the requirements of s 424A. Unfortunately for the appellant, the case does not significantly advance her claims in the matter before me now.

14. In M164, the tribunal had noted and relied on inconsistencies between direct oral testimony of the applicant and conflicting testimony by the applicant’s husband. Though the husband’s testimony was given at the hearing and in the presence of the applicant, the Full Court found that, under a strict reading of s 424A, the applicant was to be given notice, in writing, of the tribunal’s intended reliance on discrepancies between the husband’s testimony and the applicant’s testimony: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97]-[100].

15. In the instant case, the hearing-testimony relied upon by the tribunal came directly from the appellant, herself, and was therefore exempted under s 424A(3)(b) as information that “the applicant gave.” There was no third party testimony cited or relied upon by the tribunal in reaching its decision.

16. The appeal will be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:            2 June 2006

First appellant in person.
Counsel for the First Respondent:	Ms S Burchell
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2006
Date of Judgment:	2 June 2006