MZYJF v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-16|Before: Bromberg J

INTRODUCTION 1 This is an appeal from a judgment of the Federal Magistrates Court handed down on 13 December 2010: MZYJF v Minister for Immigration & Citizenship & Anor [2010] FMCA 935. The sole ground of appeal before me is that the learned Federal Magistrate erred by not determining that the second respondent ("the Tribunal") failed to comply with s 424A of the Migration Act 1958 (Cth) ("the Migration Act"). For the reasons which follow I have determined to dismiss the appeal.

BACKGROUND 2 The appellant is a national of India who arrived in Australia on 9 July 2008 on a subclass 676 tourist visa. On 3 August 2009, the appellant lodged an application for a protection (Class XA) visa. A delegate of the first respondent ("the delegate") refused that application on 13 August 2009. The delegate's decision was the subject of a letter to the appellant dated 13 August 2009. 3 On 7 September 2009, the appellant applied to the Tribunal for a review of the delegate's decision. 4 In the RRT, the appellant's claim centred around him being a Christian and an active member of the group, Catholic Yuva Dhara (CYD). The appellant claimed he was "harassed and tortured" on a number of occasions by members of extremist Hindu groups, specifically Bajran Dal (BD) and Vishwa Hindu Prashid (VHP). The appellant claimed that as a result of his active involvement with CYD he was made an "office bearer" of the organisation and was consequently the target of BD and VHP attacks. 5 More specifically, the appellant claimed he was threatened and physically attacked by Hindu extremists on three occasions; that he was threatened and physically attacked by members of BD in Sansarpur in April and June of 2008 and that he was threatened and physically attacked by members of BD when he attended a rally at Parliament House in New Delhi in May 2007. The appellant also made more general claims that he feared harm because he is part of a "backward class" of society, however, the appellant made no specific allegations regarding this claim. 6 In a decision handed down on 30 June 2010, the Tribunal affirmed the delegate's decision not to grant a protection visa to the appellant. 7 The appellant filed an application in the Federal Magistrates Court on 22 July 2010 for review of the decision of the Tribunal. The application before the Federal Magistrates Court was based on the following grounds: 1. That the Tribunal's decision was in breach of s 424A(1) of the Migration Act 1958 (Cth); Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review (b) The Tribunal did not disclose the information in accordance with section 424A(1). 2. That the Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error. 3. That the Tribunal made denial of natural justice. Because it failed to provide further opportunity before the Tribunal. 8 The learned Federal Magistrate invited the appellant to make submissions in support of his application but he declined to do so. The Federal Magistrate held that the decision of the Tribunal was a privative clause decision and was not infected with jurisdictional error. 9 I need not deal with grounds (2) and (3) of the application before the Federal Magistrate as any decision in relation to those grounds is not under challenge in this appeal. 10 As to the challenge based upon the alleged breach of s 424A(1) of the Migration Act, the Federal Magistrate found that the Tribunal had complied with the requirements of that section and that any adverse information relied upon was country information and was excluded from the scope of s 424A(1) by reason of s 424A(3).

APPEAL TO THE FEDERAL COURT 11 On 13 December 2010 the appellant filed a notice of appeal in this Court, appealing from the whole of the judgment of the Federal Magistrates Court. The appellant is self represented. The ground of appeal specified in the notice of appeal is: 1. The FM failed to find that the tribunal's decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error. (a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1). 12 On 20 December 2010 directions were made for the filing of written submissions. The appellant did not file any written submissions. Written submissions were filed by the first respondent ("the Minister"). At the hearing the appellant was assisted by a Punjabi / English interpreter. He was given an opportunity to consider and respond to the Minister's submissions. A short adjournment was offered to the appellant for that purpose, however, the appellant declined to respond. Despite the opportunity given, the appellant did not make any oral submissions of any substance.

THE LEGISLATION 13 The principal provision of the Migration Act relevant to this appeal is s 424A which is in the following terms: 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 nondisclosable information.

the submissions of the minister 14 In response to the single ground of appeal in this Court, the Minister submitted that the Federal Magistrates Court was correct to dismiss the application and to conclude that the Tribunal's decision was a privative clause decision for the purpose of ss 474 and 476 of the Migration Act. The Minister contended that in determining the review adversely to the appellant the Tribunal had relied mainly upon the appellant's own account of events, and significant inconsistencies in those accounts which had been provided in writing, as a statement attached to the appellant's visa application, and orally, at the Tribunal hearing. That information, contended the Minister, fell within the exceptions provided by ss 424A(3)(b) and 424A(ba). To a lesser extent, the Minister contended that the Tribunal took into account relevant country information in order to make findings that were adverse to the appellant; such information falling within the exception provided by s 424A(3)(a). Therefore, the Tribunal was relieved of any obligation under s 424A(1) to identify to the appellant the adverse information it relied upon in affirming the decision under review and provide opportunity for comment. The Minister also submitted that gaps, deficiencies and inconsistencies do not constitute "information" for the purpose of s 424A (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609) and that in any event the appellant had not identified the particular adverse information used by the Tribunal to affirm its decision, either before the Federal Magistrate or in the appeal before this Court.

REASONING 15 The Federal Magistrates Court has no jurisdiction to judicially review a decision of the Tribunal, if the decision in question is a privative clause decision. That constraint arises by operation of s 474 and s 476 of the Migration Act. However, where a decision of the Tribunal is infected with jurisdictional error, the decision of the Tribunal is not a decision made "under the Act" and not within the exclusionary scope of the protection of the privative clause provisions of the Migration Act: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 16 The Federal Magistrate concluded that he had no jurisdiction to interfere with the Tribunal's decision because that decision was not infected with jurisdictional error. For the appellant to succeed on this appeal, I need to be satisfied that the Federal Magistrate erred in arriving at that conclusion on the basis of the contention made in the appellant's ground of appeal. 17 The appellant's ground of appeal is that the Federal Magistrate failed to identify that the Tribunal had breached s 424A and that, consequently, its decision was infected with jurisdictional error. The appellant's ground of appeal does not particularise the adverse information that the appellant contends the Tribunal failed to disclose in accordance with section 424A(1). 18 I discussed the requirements of s 424A in MZYHF v Minister for Immigration and Citizenship [2010] FCA 1250 including by reference to what the Full Court said in SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46. As the Full Court said at [71], the policy and purpose which underpins s 424A 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. 19 The obligations upon the Tribunal imposed by s 424A applies in relation to "any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review." However, subsection 424A(3) excludes those obligations in relation to certain kinds of information including: country information: s 424A(3)(a) and see SZMCD at [82]-[83] and [92]; any information that the appellant gave for the purpose of the application for review: s 424(3)(b); or that the appellant gave during the process that led to the decision that was under review (excluding any information given orally by the appellant to the Department): s 424(3)(ba); and any non-disclosable information (as defined by s 5 of the Migration Act): s 424A(c). 20 In relation to the appellant's claims that he had been persecuted on the basis of his religion, the Tribunal rejected the appellant's claims that he had been threatened and attacked by members of BD and VHP. That was because the Tribunal found a range of inconsistencies in the appellant's evidence and did not regard much of his evidence as credible. For that reason the Tribunal did not accept that the appellant had in the past been subject to serious harm by non-state actors for reason of his religion. 21 In coming to that conclusion the Tribunal relied upon information that the appellant gave for the purposes of his application of review or that the appellant gave during the hearing. Section 424A does not apply to that kind of information: ss 424A(3)(b) and (ba). 22 The Tribunal next considered whether the applicant may face a real chance of serious harm in the future by reason of his religion if he were to return to India. On the basis of country information the Tribunal did not accept that a person of the appellant's low profile in the Church would be targeted or otherwise harmed as the relevant country information indicated that whilst there have been occasional attacks against ordinary Christians, the aggression was mainly directed at evangelists and priests. Insofar as the Tribunal relied on that information, s 424A does not apply to it because it was country information and country information is excluded by reason of s 424A(3)(a). 23 Lastly, the Tribunal rejected the appellant's claims that he feared harm because he is part of a "backward class" of society because the appellant made no specific allegation of past harm as a result of his membership of a "backward class". In that respect the Tribunal did not rely on any information. On this point the first respondent referred to SZBYR where at [18] the High Court majority explored the question of what constituted "information" for the purposes of s 424A. As the majority there stated, "doubts, inconsistencies, or the absence of evidence" do not constitute "information" for the purposes of s 424A. 24 The Tribunal rejected the appellant's claim on the basis of an absence of information. Therefore, there was no information within the scope of s 424A that the Tribunal was bound to deal with in accordance with the requirement of that section. 25 For those reasons I am unable to identify any error made by the Tribunal based on the requirements of s 424A of the Act. The Federal Magistrate did not fail to identify any jurisdictional error made by the Tribunal. Accordingly, the appeal must be dismissed and the appellant ordered to pay the costs of the first respondent. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Migration Amendment (Review Provisions) Act 2007(Cth)

Migration Act 1958(Cth)ss 424A, 474

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