MZWEL v Minister for Immigration and Multicultural Affairs

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. For the reasons to be stated, I would grant the extension application and allow the appeal. 2 Under O 52 r 15 of the Federal Court Rules, the applicant was required to file and serve any notice of appeal within 21 days after 21 January 2005. That is, excluding the date of judgment and allowing until the next day the Court Registry was open, the relevant deadline was 14 February 2005. The notice of appeal was filed 2 days late on 16 February 2005. Order 52 r 15(2) provides that the Court or a Judge may, for special reasons, give leave to file and serve a notice of appeal. That is, the applicant is required to establish grounds of appeal sufficient in the circumstances to justify a departure from the prescribed time period. The appellant set out his case in his affidavit filed in support of his application. I refer to it hereafter. 3 In opposing an extension of time, the first respondent did not argue that she would be prejudiced by the two day extension. Instead, the first respondent submitted that the Court ought not to grant the extension because the applicant's prospects of successfully prosecuting this appeal were negligible. 4 The history of the matter is as follows. The applicant, a citizen of Sir Lanka, arrived in Australia on 11 January 2002. On 23 January 2002, he applied for a protection (class XA) visa on the basis that his life was in danger in Sri Lanka because of Sri Lankan government attacks due to his background as a half-Tamil who used to live in Jaffna. 5 A delegate of the first respondent refused his application on 10 May 2002. The applicant applied to the Refugee Review Tribunal ("RRT") for review of that decision. Before the RRT, the applicant claimed that he was at risk of persecution from both the Liberation Tigers of Tamil Eelam ("LTTE") and the Sri Lankan governmental authorities. The applicant told the delegate that he was considered suspect by the Sri Lankan authorities because of his mother's involvement with the LTTE. At the hearing before the RRT, the applicant claimed, for the first time, that he had also been involved with the LTTE. In a decision dated 20 January 2004, the RRT affirmed the decision of the delegate. The RRT did not find the applicant's account credible and concluded that neither the applicant nor his mother had been involved with the LTTE. 6 Prior to the RRT's hearing, there had been no suggestion by the applicant that he had any direct involvement with the LTTE. The applicant's claim that he had spied for the LTTE, and that he knew the LTTE leaders in his area and some of their secrets and the attacks they were plotting was a claim made for the first time, orally, before the RRT. 7 On 23 March 2004, the applicant filed an application in the Federal Magistrates Court for review of the RRT's decision. The applicant claimed that the RRT's decision was affected by jurisdictional error because the RRT asked the wrong question and identified the wrong issues when determining whether the applicant had a "well founded fear" of persecution. In a judgment delivered on 21 January 2005, a Federal Magistrate dismissed the application for review. His Honour concluded that the applicant's claims were simply a challenge to the RRT's credibility finding and amounted to an impermissible attempt to reargue the matter on its merits. 8 On 15 April 2005, the applicant filed an affidavit in support of his application for an extension of time. In that affidavit, he stated that he was not notified of the judgment date in the Federal Magistrates Court and was therefore not present when judgment was delivered. His evidence was that he was not aware of the judgment until 27 January 2005, when he received the Federal Magistrate's reasons for judgment by post. The applicant's evidence was that, on receiving his Honour's reasons, he was "dissatisfied with the order and intended to file an appeal". He did not have legal representation and, accordingly, performed internet research which indicated that he had 28 days for filing his appeal against the orders of the Federal Magistrate. His appeal was filed on 16 February 2005 (which was within 28 days of his Honour's decision). It was not until he received a letter from the respondent's solicitor on 28 or 29 March 2005 that he became aware that his notice had been filed out of time. 9 I accept that the applicant was late in filing his appeal on account of an inadvertent error and that there would be no relevant prejudice if an extension were granted. This circumstance can constitute special reasons for the purpose of the Rules. In determining whether an extension should be granted, however, it is also necessary to consider the prospects of the proposed appeal. If the applicant has no prospects of success, then the extension would be futile and should not be granted. parties' submissions 10 The first respondent has filed written submissions, arguing that an extension of time should not be granted because the appeal has no prospects of success. Before the hearing on 10 March 2006, the applicant had neither filed written submissions nor given any particulars of his grounds of appeal. 11 At the hearing on 10 March 2006, the applicant submitted as follows. (1) He was scared to go back to Sri Lanka because he had both a Tamil and Singhalese background. As such, he was regarded with suspicion by both the LTTE and the Sri Lankan governmental authorities. (2) His mother had sacrificed a great deal for him to come to Australia and he had lost contact with her. (3) The RRT had relied on country information in reaching its decision and, in breach of s 424A of the Migration Act 1958 (Cth) ("the Act"), the RRT had not told him about the country information before making its decision. (4) Sri Lanka remained a dangerous place, especially for poor people, including himself. 12 Also at the hearing on 10 March 2006, the first respondent's counsel addressed the country information issue referred to in the preceding paragraph. Counsel also addressed a further point, which, as he observed, would probably have been raised had the applicant been represented. This concerned the RRT's reliance upon a standard letter that the first respondent's department ordinarily sent an applicant for a protection visa ("the standard letter"). At the hearing before the Federal Magistrate, the applicant had challenged the RRT's reliance upon the standard letter upon the basis that he never received such a letter. 13 The first respondent's counsel submitted that the standard letter did not constitute information that s 424A of the Act required the RRT to give to the applicant before making its decision. Counsel further contended that the standard letter constituted only one of three separate bases for the RRT's rejection of the applicant's explanation for failing to mention his own LTTE involvement until the oral hearing before the RRT. Counsel also argued that the RRT's rejection of this explanation constituted one of two separate grounds stated by the RRT for rejecting the applicant's account of his association with the LTTE. In the first respondent's submission, even if the RRT's first ground disclosed error, an alternative ground remained to support the RRT's rejection of the applicant's account on credibility grounds. 14 After hearing the parties on 10 March 2006, the court adjourned upon the understanding that judgment would be delivered later that day. In the interim, however, the first respondent faxed further submissions, drawing attention to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216] per Allsop J and [155] per Weinberg J ("SZEEU"). As a result, a further hearing was rescheduled for 24 April 2006 to enable the applicant to obtain assistance from pro bono counsel on these further submissions. 15 At the hearing on 24 April 2006, pro bono counsel sought leave to amend the applicant's proposed notice of appeal to include the following ground of appeal: "The Federal Magistrates' Court should have found that the decision of the Refugee Review Tribunal was made in jurisdictional error in that the Tribunal failed to comply with s 424A of the Act when the Tribunal failed to provide particulars of information to the applicant, where this information was: i. part of the reasons for its decision; and ii. did not fall within the exception in s 424(3). Particulars The form and content of the appellant's evidence given to the Department. The assurance about privacy contained in the letter from the Department to the [Applicant] dated 18 February 2002." 16 Counsel for the applicant submitted that the RRT breached s 424A of the Act with respect to two pieces of information, i.e., with respect to (1) the form and content of the applicant's evidence given to the Department, particularly the omission in this evidence of certain claims the applicant made to the RRT; and (2) the assurance about privacy contained in the letter from the Department to the applicant dated 18 February 2002. She submitted that both pieces of information constituted "information" within the meaning of s 424A(1) of the Act; and were part of the reasons for affirming the decision under review. It followed, so she said, that the RRT breached s 424A when it failed to provide particulars of these pieces of information to the applicant in accordance with the Act. Further, counsel for the applicant contended that there was no alternate basis for the RRT's decision that was unaffected by the s 424A error. 17 As counsel for the applicant acknowledged, the proposed ground of appeal raised a basis for a claim of jurisdictional error on the RRT's part that had not been argued before the Federal Magistrate. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 ("VAAC") at 177 [26] per North, Merkel and Weinberg JJ. It is only at this late stage in this proceeding that the applicant has had the benefit of counsel and this provides part of the explanation for the applicant's failure to raise the ground earlier. There is also the further fact that SZEEU was only delivered on 24 February 2006. In addition to this consideration, whether or not leave ought be granted depends on such matters as the prospects of success of the proposed new ground, the prejudice to the first respondent in allowing the ground to be raised, the possible serious consequences to the applicant if the leave sought is refused, and the integrity of the appellate process: see VAAC at 177 [26]. 18 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 19 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). 20 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". 21 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. 22 I now turn to the arguments advanced by pro bono counsel on the applicant's behalf at the 24 April 2006 hearing. 23 The RRT's knowledge that the standard letter contained an assurance of privacy can be regarded as 'information' for the purposes of s 424A. The Court in SZEEU treated the discussion of the word 'information' in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 ("VAF") as a point of departure for its own consideration of the appeals before it. In VAF, Finn and Stone JJ said, at [24]: "[T] here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it: (i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC …; (ii) the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; approved [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29]." 24 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J, although Allsop J stated, at [208], that there were limits on the statement in VAF that 'information' did not encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the RRT in weighing up the evidence by reference to those gaps. 25 I accept that the RRT's knowledge that the standard letter contained an assurance of privacy constituted knowledge of relevant facts or circumstances communicated to or received by the RRT and therefore 'information' for the purposes of s 424A of the Act. It was common ground that the RRT had not given the applicant particulars of such information as s 424A of the Act would require. 26 On a fair reading of the RRT's reasons for its decision, the RRT's knowledge that the standard letter contained an assurance of privacy was knowledge that the RRT considered was a part of the reason it affirmed the decision under review. In SZEEU, Weinberg J discussed, at [163], the application of the expression "a part of the reason" in s 424A, observing that: "The strict view that the courts have taken in relation to breaches of natural justice can, in my view, inform the application of the expression 'a part of the reason' in s 424A. The cases suggest that this expression should be read benevolently, in favour of an applicant for review. If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of the applicant." 27 His Honour accepted, at [164], that "the similar claims information" in the case of SZBMI "played a part … in the Tribunal's conclusion"; and therefore constituted a part of the reason for its decision. Weinberg J explained, at [164], that: "The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention. Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than an element in the decision-making process, it does not follow that it did not play "a part" in its reasons for decision. … The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole." 28 Allsop J, in SZEEU at [216]-[217], explained the application of the expression "a part of the reason" as follows: "In my view, in the light of [SAAP Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162], in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in [Paul v Minister for Immigration and Multicultural Afairs (2001) 113 FCR 396]and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason. That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Pauland VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal's reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ." 29 The observations of Weinberg and Allsop JJ in SZEEU are helpful in this case, because, clearly enough, the standard letter played a part in the RRT's reasons for its decision, even if only a subsidiary part: see also SZEEU at [158] agreeing with Allsop J at [228] above. As previously noted, before the RRT, the applicant claimed that he feared persecution based on his own association with the LTTE, although he had not mentioned these claims until he gave evidence at the RRT hearing. 30 The RRT rejected this claim about his own involvement with the LTTE as "not credible", because, if genuine, the applicant would have mentioned the claim to the delegate or in his statement seeking review of the delegate's decision. The RRT rejected the applicant's explanation for his failure to mention the claim earlier on the joint bases of importance and confidentiality. In relation to confidentiality, the RRT referred to the assurances given both at the interview with the delegate and in the standard letter. The reference to the standard letter was apparently intended to take account of the fact that the applicant said that he could not recall being given such an assurance at the interview with the delegate. In effect, the standard letter was a part of the RRT's reasons for its decision because it provided a part of the reason for rejecting the applicant's explanation as to why he gave an account of personal involvement so late in the piece and thus for disbelieving this account. There were not, as the respondent maintained, three separate bases for the RRT's rejection of the applicant's explanation for failing to mention his own LTTE involvement until the oral hearing before the RRT. The matter of the standard letter was intertwined with the RRT's view that the applicant's explanation for his late claims should be rejected because of earlier assurances of confidentiality. 31 As noted earlier, the first respondent also contended that, even if there were a breach in this regard, the decision of the RRT was supportable on an independent basis that was not affected by the breach. This was that the RRT would have found the applicant's account not credible also on the basis that it did not find his evidence plausible. I reject this submission because, read fairly and as a whole, the RRT's finding that the applicant was not credible flowed from its determination that, if true, the applicant would have made his personal involvement claim earlier and its assessment that his evidence was vague, unresponsive and implausible. That is, the RRT treated these two considerations as supporting, together or cumulatively, its credibility finding. The RRT expressed the idea of cumulation when it said that it "also gives weight to the fact" that the applicant's evidence was general, unresponsive and implausible. Reading the RRT's reasons as a whole, it is plain enough that it relied on 'recent invention' and 'implausibility' as jointly founding its credibility finding. The RRT did not treat implausibility as a stand-alone basis for rejecting his claim on credibility grounds. 32 The effect of SAAP Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 is that s 424A of the Act requires the RRT, at the hearing stage, to give the applicant 'particulars' in writing of any information that would be the reason, or a part of the reason, for affirming the decision under review; and any breach of this requirement constitutes jurisdictional error. 33 In view of this conclusion, it is unnecessary to consider the applicant's counsel's further submission concerning the form and content of the applicant's evidence given to the Department. I observe that the first respondent's counsel noted, in argument, that he had no notice of this latter submission prior to the 24 April hearing, although no blame attaches to pro bono counsel for this apparent fact. 34 If leave to amend the notice of appeal were granted and an extension of time were granted, the appeal would succeed. The first respondent has not argued that, if the court so concluded, then it should not grant leave because of any countervailing considerations. Accordingly, I would grant leave to amend the proposed notice of appeal in the terms sought by pro bono counsel. I would also grant the extension of time the applicant sought and I would allow the appeal, with costs. 35 The Court is indebted to counsel for the first respondent and the applicant for their assistance in this case. Counsel for the first respondent acted through-out the case as befitted a model litigant in this Court. In this case as in other cases, pro bono counsel rendered to the Court and to litigants in person a very great service in agreeing to act without fee as counsel in the presentation of argument. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.