Application to federal court
23 The appellant lodged a notice of appeal in this Court on 1 September 2010, providing a single ground for review:
1. The FM failed to find that the Tribunal's decision was in breach of s424A(1) of the Act and therefore fall under jurisdictional error.
24 The natural justice hearing rule is articulated in s 422B of the Migration Act and codified in Division 4 Part 7 of that Act. The natural justice rule is confined to the provisions in Division 4 Part 7 of the Migration Act: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. Division 4 includes s 424A.
25 Section 424A provides as follows:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
26 In substance, s 424A(1) provides that the Tribunal may obtain any information that it considers relevant in conducting the review, but that it must have regard to that information in the making of a decision. Section 424A also provides that a written invitation to provide information must be given to the appellant.
27 In MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 at [34], I dealt with the requirements imposed on the Tribunal by s 424A and also s 424AA. In that decision, I noted the policy and purpose of s 424A and s 424AA as expressed by the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415at [71]-[72]. Relevantly, the policy and purpose is that the Tribunal should be compelled to:
(a) put the visa applicant on fair notice of critical matters of concern to the Tribunal;
(b) ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
28 Further, the nature and content of the obligations upon the Tribunal under s 424A(1) were recently summarised by Flick J in SZMTJ v Minister for Immigration and Citizenship and Anor (No 2) [2009] FCA 486. I respectfully agree with his Honour's observations at [52] that each of the requirements of s 424A are not to be treated as though they were divorced one from the next. The greater degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant.
29 In relation to s 424A(1)(a), Flick J at [45] emphasised that a visa applicant is to be provided with "sufficient specificity" of the information to be relied upon. Language which fails to identify information with "sufficient specificity" and which fails to set out information "unambiguously" may fail to comply with s 424A(1)(a): see for example MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J.
30 In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A had referred merely to "particulars of any information". The requirement that "clear particulars" be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). As his Honour noted, that change in language cannot be ignored. The change came at the same time that s 424AA was introduced and thus the facility provided to the Tribunal to communicate orally its intended reliance upon "information", rather than in writing under s 424A. Although the language of s 424A(1)(a) was also brought into line with that of paragraph (a) of s 424AA, it may be inferred that the change from "particulars" to "clear particulars" was somewhat motivated by the concern that extra care be taken in the giving of particulars, especially as particulars could now be given orally.
31 As Flick J further noted at [44] of SZMTJ, s 424A(1)(b) imposes what has been said to be "strict requirements". His Honour referred to the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807, where Rares J said that
s 424A(1)(b) required the Tribunal to ensure, as far as reasonably practical, that it identified to the visa applicant why the information was relevant to the review. Such an identification is necessary to avoid the visa applicant being left to choose between uncertain inferences that might otherwise be available. The visa applicant needs to be told by the Tribunal why the information is relevant to the review. That obligation is not fulfilled if the Tribunal leaves it to chance that the visa applicant appreciates the relevance of the information from the course of the hearing, or from other circumstances surrounding the way in which the review was being conducted: SZEOP at [36].
32 In the present case, the Federal Magistrate held that the Tribunal did comply with s 424A. I can see no error in that conclusion. The s 424A letter put the appellant on fair notice of critical matters of concern to the Tribunal, ensured that the appellant understood the significance of those matters to the decision under review; and gave the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
33 There is just one aspect of the reasons for judgment of the Federal Magistrate that causes me some small concern. Paragraph [2] reads:
The grounds of the application are extremely familiar to the Court. They are the same, even as to spelling errors, as those provided in a number of recent cases. They were plainly not prepared by the applicant because she speaks no English.
While there is no express indication that the Federal Magistrate believes that the repetition of claims common to earlier cases goes to their validity, it is important that such an implication (if it is present) be rejected. It is clear that a non-English speaking litigant in person in a migration case might seek help from any and every possible source. It may be the case that many applicants seek assistance from the same source. That claims are stated in identical terms to those in earlier cases on a similar subject matter is thus not surprising. That situation should not, without more, be regarded as demonstrating some lack of bona fides. If the matter referred to by the primary judge has been taken into account in determining the substantive application before him, it may constitute error. However, I am not persuaded that paragraph [2] was anything more than a passing comment which played no part in the decision reached by the Federal Magistrate. As such I find no error.
34 I find that the appellant's ground for appeal is not made out. Accordingly, the appeal should be dismissed. I will make orders dismissing the appeal and requiring the appellant to pay the Minister's costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.