NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292 | Case summary

NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292 | Case summary | Zoe

BACKGROUND 4 The appellant is a citizen of Sri Lanka. He is of Sinhalese ethnicity and was born in 1963. The appellant is married and has two children. His wife is also Sinhalese. 5 The appellant arrived in Australia on 10 March 2001, having been issued with an Australian visa on 5 February 2001. On 22 March 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("Migration Act"). In a statement filed on 14 May 2001 in support of his application the appellant claimed that he feared for his life if he was to return to Sri Lanka because he was perceived as a supporter of the Liberation Tigers of Tamil Eelam ("LTTE"). 6 According to the appellant, his family objected to his marriage in 1992 because his wife's sister had married a Tamil (referred to by the RRT as "K"). The appellant claimed that he had been seriously mistreated by the security forces because he was suspected of supporting the LTTE. He said that he feared that if he returned to Sri Lanka he would be detained and tortured by the authorities. 7 The RRT summarised the appellant's claims as follows: "the [appellant] claimed that S, his wife's Tamil brother-in-law, was employed in his business, that he allowed S to send foodstuffs to Jaffna in the otherwise empty lorry, that in a business arrangement with another Tamil, Siva, the [appellant] paid for the lorry to travel north, but that on one such trip it was found to be carrying banned goods. On the basis of this discovery and his family relationship with S and possibly his business relationship with Siva, both of whom were suspected LTTE supporters, the [appellant] was arrested twice, in the first week of April 2000 and then in mid June 2000 just a week or so after being released, detained and beaten/tortured almost daily for months because he, a Sinhalese, was suspected of supporting the LTTE. Despite being released and not being charged, the [appellant] originally claimed to fear being killed, disappeared [sic], tortured or detained by the security forces as a suspected supporter of the LTTE if he returns to Sri Lanka. However, at the hearing he claimed that if war erupts again, he may be re-arrested and killed, because of their past suspicion of him and because he fled rather than complying with the reporting requirement."

the legislation 8 Section 424A of the Migration Act provides as follows: "(1) Subject to subsection (3), the Tribunal must: (a) 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 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 (c) invite the applicant to comment on 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) …. (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; or (c) that is non-disclosable information." 9 Section 441A specifies the methods for the purposes of s 424A. They involve handing or dispatching a document to the recipient or transmitting the document to the recipient by fax, email or other electronic means. No provision is made in s 441A for the RRT to give particulars of information verbally. 10 Section 422B of the Migration Act now provides that Div 4 of Part 7 (which includes s 424A) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. However, s 422B does not apply in the present case since the application for review by the RRT was made before the commencement of s 422B on 4 July 2002: see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sched 1, cl 7(5). 11 Section 474(1) of the Migration Act provides as follows: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." A "privative clause decision" is defined by s 474(2) to mean: "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…."

rrt's decision 12 On 18 November 2002, the RRT advised the appellant that it was unable to make a decision in his favour on the material before it. He was invited to attend a hearing on 8 January 2003. He attended the hearing and gave oral evidence. After the hearing, the appellant's agent, a solicitor, forwarded to the RRT further written submissions. These addressed issues that had been raised at the hearing, including the RRT's stated concerns that the independent country information indicated that it was very rare for a Sinhalese to be seriously suspected of supporting the LTTE. 13 The RRT gave detailed reasons for affirming the delegate's decision. In its reasons, the RRT recounted at length the claims made by the appellant at the oral hearing, the doubts expressed by the RRT about those claims and the appellant's responses. 14 The RRT rejected the appellant's claims that he had been tortured, incarcerated and interrogated about his links to the LTTE for two reasons. First, there were "serious inconsistencies" in key elements of the appellant's evidence. For example, in his written statement the appellant had said that S had caused his wife's family unwanted attention from the authorities in Sri Lanka, yet in oral evidence the appellant said that had S ever been suspected by the authorities, the appellant would never have employed him. Similarly, despite his graphic allegations of incarceration and severe torture, the appellant said he had never required medical attention. Moreover, the appellant accepted that neither his wife nor her family had ever been questioned by the authorities regarding S's activities. 15 Secondly, the RRT found that the appellant's claims were neither plausible nor consistent with independent country information. The RRT recorded that it had put to the appellant at the hearing that it had difficulty accepting his claims, as some were inconsistent with independent country information mentioned by the delegate and with other independent country information. The RRT particularly "had difficulty accepting as plausible his very serious claims of repeated arrest, very lengthy detentions and repeated torture over many weeks as such claims from a Sinhalese were not supported by independent country information; specifically, that it is extremely rare for a Sinhalese to be seriously suspected of supporting the LTTE, that Sinhalese commonly have family, personal, professional and business relationships with Tamils and if it later turns out that the Tamil was suspected of supporting the LTTE, independent country information did not suggest that the Sinhalese would be detained for lengthy periods and seriously mistreated and tortured as a suspected supporter of the LTTE. The reports for years in the context of the conflict with the LTTE, about extrajudicial killings and disappearances, repeated arrests, long detentions and torture or serious mistreatment relate overwhelmingly to Tamils." The reasons then record the response to these concerns given by the appellant at the hearing. 16 Later in the reasons, the RRT said this: "[T]he [appellant's] claims of being seriously suspected of assisting the LTTE and being detained for long periods and seriously mistreated and tortured as a result are not supported by independent country information, set out above and accepted by the Tribunal, specifically that it is extremely rare for a Sinhalese to be seriously suspected of supporting the LTTE and being tortured for information about a Tamil suspected supporter of the LTTE and about the LTTE. In addition, as the Tribunal put to the [appellant] independent country information about the arrest, detention and torture or mistreatment of persons in the LTTE context is overwhelming[ly] related to Tamils. The Tribunal has considered the adviser's submission in this respect but some of the [appellant's] own evidence, for example K's statement that as a Sinhalese his wife was not much troubled by the authorities, supports the independent country information. The headlines quoted by the adviser suggest that Sinhalese support for the LTTE, in the rare instances that it occurs, is newsworthy (for example the wife of an LTTE police chief in 1994 was Sinhalese), yet despite the [appellant] claiming that his situation was publicised by the security forces, nothing was submitted to support such a claim. Furthermore, even though Sinhalese may rent rooms, be friends with and in various ways inadvertently help the LTTE, independent country information does not suggest that as a result they are seriously mistreated as LTTE supporters." 17 The reference in this passage to the "adviser's submission" appears to be to the written submission made after the hearing. In that document, as already noted, the adviser addressed what was said to be the RRT's statement at the hearing that "the reports say it is very rare for a Sinhalese to be seriously suspected of supporting the LTTE". The document referred back to an earlier written submission made on behalf of the appellant to the Department on 29 June 2001. This submission contained the appellant's detailed response to what was described as the "issue that the DFAT [Department of Foreign Affairs and Trade] cable dated 28 May 1997 states that 'apart from a Sinhalese collaborating with the LTTE for financial gain, it is utterly implausible that a Sinhalese would support the LTTE'." 18 The RRT did not accept the appellant's written claims that he was subject to an arrest warrant and that the police had searched for him at the family home. These claims had not mentioned in his oral evidence and other evidence contradicted them. The RRT found that the appellant was not the subject of any ongoing interest from the authorities. 19 The RRT found that even if, contrary to its findings, the appellant's claims were true, he did not have a well-founded fear of persecution. The RRT noted that the appellant obtained a genuine passport in his own name, which would be difficult to accomplish if he was being investigated by the authorities. The appellant had failed to report to police, a requirement (so he claimed) of his release from custody, yet no adverse consequences had followed. Further, the appellant, having been issued with a passport, obtained an Australian visa and then waited for a month before leaving the country. The RRT considered that such a course of action was inconsistent with the appellant having a well-founded fear of persecution. 20 Accordingly, the RRT concluded that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees.

THE MAGISTRATE'S JUDGMENT 21 The learned Magistrate gave leave for the appellant to be represented by a person who had some legal training, but who was not an admitted legal practitioner. 22 The appellant's representative made what the Magistrate characterised as essentially one submission. This was that the RRT had relied on independent country information which was adverse to the appellant's claims, but had failed to disclose that information to him. It was submitted that the obligation to disclose the information arose either by the rules of procedural fairness or by s 424A of the Migration Act. 23 His Honour accepted the appellant's evidence that the relevant country information had not been disclosed to him prior to the hearing, and that the actual documents relied upon by the RRT were not disclosed to the appellant at the hearing. 24 The Magistrate observed that the RRT had made limited use of independent country information. The RRT had said that the appellant's claims that he had been repeatedly arrested and tortured were not supported by the independent country information. Specifically, the information suggested that it was rare for a Singhalese to be seriously suspected of supporting the LTTE and that Sinhalese often had family and business relationships with Tamils without attracting suspicion from the authorities. 25 The Magistrate noted that the appellant had expressly accepted that the description in the RRT's reasons of the questions asked and answers given at the hearing was accurate. That description showed that the RRT had raised with the appellant issues of concern drawn from the independent country information, even though the appellant was not provided with copies of the relevant material. 26 In particular, the RRT's reasons showed that it put to the appellant independent country information suggesting that the arrest and mistreatment "of persons in the LTTE context is overwhelmingly related to Tamils". Moreover, the appellant's agent had specifically addressed that proposition in the supplementary written submissions. Accordingly, the appellant had been afforded an opportunity by the RRT to comment on the relevant country information, both at the hearing, and in subsequent written submissions. Given that the appellant was informed of the substance of the material, his Honour concluded that there was no breach of the fair hearing rule. 27 The Magistrate also rejected the appellant's contention that s 424A of the Migration Act had been breached by the RRT's failure to disclose the independent country information prior to the hearing. The Magistrate said this: "The documents before the presiding member appear to have been created in part in relation to specific claims made by applicants other than this applicant. They were created some time before this application was dealt with. Much of what is in the documents is irrelevant to this applicant's claims. The relevant information drawn from the documents by the presiding member was the general proposition that it was unlikely that a Sinhalese would come under attention by the Sri Lankan authorities as an LTTE suspect. That was not information specifically about this applicant. It was in the terms of s 424A(3), information that is not specifically about the applicant or another person or is just about a class of persons which the applicant or other person is a member. Accordingly, s 424A(3)(a) applies and no obligation arises from s 424A(1) of the Migration Act to disclose particulars of the information to the applicant relating to this issue. In addition, it is arguable that sufficient particulars were disclosed orally by the presiding member to meet the requirements of s 424A(1). I make no finding on that proposition as it is not necessary to do so."

submissions 28 The appellant made brief written submissions. He contended that the failure of the RRT to bring the country information specifically to his attention constituted a denial of procedural fairness, on the authority of Muin v Refugee Review Tribunal (2002) 190 ALR 601. He also contended that the RRT had failed to comply with the requirements of s 424A(2) of the Migration Act. It was submitted that the Magistrate had erred in rejecting each of these propositions. Not surprisingly given his lack of legal training, the appellant did not seek to elaborate on these submissions in oral argument. 29 The Minister accepted that because the application to the RRT in the present case predated the enactment of s 422B, the Migration Act did not preclude the rules of procedural fairness from applying to the RRT: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (cf NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494, at 505-506, per Ryan and Finkelstein JJ). Mr Smith, who appeared for the Minister, also accepted that the RRT would have breached the rules of procedural fairness if it had failed to bring to the appellant's attention the substance of the country information upon which it ultimately placed some reliance in reaching a decision adverse to the appellant. 30 Mr Smith submitted, however, that the Magistrate had correctly found that the RRT had disclosed at the hearing the substance of the material it took into account and which was adverse to the appellant's claims. That disclosure gave the appellant an opportunity to address the issues of concern to the RRT and indeed he had done so in his supplementary written submissions. It followed that the appellant had not been denied procedural fairness. 31 Mr Smith further submitted that the Magistrate had correctly held that the exception in s 424A(3)(a) of the Migration Act applied because the relevant information was not specifically about the appellant or another person and was "just about a class of persons of which the [appellant]…[was] a member". Mr Smith properly drew attention to two recent decisions of the Full Court, VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 and NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494, the latter of which was decided after the RRT's decision was handed down. He contended, however, that the Magistrate's decision was consistent with the reasoning in those cases. 32 In the alternative, Mr Smith argued that the Magistrate's decision should be upheld on the ground that, in the absence of procedural unfairness, a failure by the RRT to comply with s 424A(2) of the Migration Act does not constitute a jurisdictional error. Accordingly, the RRT's decision was a "privative clause decision" for the purposes of s 474(1) of the Migration Act and could not be subject to prohibition, mandamus or certiorari. The Minister, pursuant to leave granted by me, filed a notice of contention to this effect. 33 Finally, the Minister contended that if all else failed, relief should be withheld from the appellant on discretionary grounds.

was there a denial of procedural fairness? 34 No basis has been shown, nor is any apparent, for challenging the Magistrate's finding that the RRT put directly to the appellant the substance of the country information upon which it relied in its reasons. The passages from the RRT's reasons, quoted at [15] and [16] above, demonstrate that the RRT put to the appellant country information showing that it was extremely rare for a Sinhalese to be seriously suspected of supporting the LTTE and that Sinhalese commonly had family, personal and business relationships with Tamils. The appellant had an opportunity at the hearing to address the RRT's concerns. He also had an opportunity to do so in written submissions filed after the hearing. Those submissions showed that the appellant's adviser fully appreciated the nature of the RRT's concerns and endeavoured to meet them. Indeed the appellant's detailed submissions prior to the hearing expressly addressed a statement in a 1997 DFAT cable to the effect that, apart from a Sinhalese collaborating with the LTTE for financial gain, it was utterly implausible that a Sinhalese would support the LTTE. 35 In Muin v Refugee Review Tribunal, McHugh J stated (at 631 [122]-[123]) the content of the RRT's duty to afford an applicant procedural fairness in the following terms: "Whenever a statute confers on a public official or tribunal the power to do something that affects a person's rights, interests or legitimate expectations, the official or tribunal must accord procedural fairness to the person affected unless the statute plainly indicates a contrary intention.… Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But 'in the ordinary case…an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made'. What is required to discharge this duty depends on the circumstances of the particular case." (Citations omitted.) 36 The Court held in that case (Hayne J dissenting) that the RRT had denied one of the applicants procedural fairness by taking into account a DFAT cable attached to submissions made by the Secretary of the Department. The applicant was not made aware of the cable or the submissions, notwithstanding that the contents of the cable were adverse to his case. It was the failure to bring the substance of the material to the applicant's attention that constituted the denial of procedural fairness: see at 611-612 [29]-[31], per Gleeson CJ, at 634 [137], per McHugh J; at 654 [231], per Kirby J. 37 In the present case, the substance of the country information, insofar as it was taken into account by the RRT, was brought to the appellant's attention and he was given an adequate opportunity to respond. Indeed, he took advantage of that opportunity. There was no suggestion before the Magistrate or in this Court that he would have wished to say anything more to the RRT than he did. In these circumstances, the RRT did not deny procedural fairness to the appellant.

was there a breach of s 424A(1)? 38 Section 424A gives rise to some difficult questions of interpretation. In particular, s 424A(3)(a), which provides that s 424A(1) does not apply to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member", is not easy to construe. As Kenny J observed in VHAJ v Minister, at 622 [46], much of the difficulty arises from the "unorthodox use of the expression 'just about'" in s 424A(3)(a). A related problem is to determine whether information is "about" a class of persons or about something else. For example, is information concerning a law of another country which provides that holders of a permit can re-enter that country "about" a class of persons (that is, holders of current permits) or "about" a law? In VHAJ v Minister, two Judges favoured the former view (Kenny J, at 625 [55]; Downes J, at 627 [69]), while one Judge adopted the latter (Moore J, at 619 [33]). 39 Uninstructed by authority, I would analyse the operation of s 424A in this case in the following way. Section 424A(1) of the Migration Act requires the RRT to give the applicant particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review. The starting point is therefore to identify the "information" that answers this description. While this may not always be an easy task, in the present case the relevant information was the independent country information indicating that Sinhalese were rarely seriously suspected by the Sri Lankan authorities of supporting the LTTE even if they had family, personal or business relationships with Tamils. It was this information which the RRT took into account (among other material) in making its finding that the appellant had not been detained or tortured as a suspected LTTE sympathiser, as he had claimed. 40 Section 424A(3)(a) provides that s 424A(1) does not apply to "information" that meets each of two criteria, namely that the information:

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. The "information" referred to in s 424A(3)(a) is that identified in s 424A(1). Thus in this case the questions are whether the country information (i) was not specifically about the appellant; and (ii) was just about a class of persons of which the appellant was a member. 41 The language of s 424A(3)(a) suggests that the answer to the second question will be "yes" if the information identified in s 424A(1) can be said to be just about a class of persons. That is, s 424A(3)(c) will be satisfied if the information relates only to a particular class of persons of which the appellant is a member. It does not seem to matter for the purposes of s 424A(3)(a) precisely how the RRT proposes to use the information. That issue is addressed by s 424A(1), in the sense that the section can only apply to information that the RRT considers would be the reason or part of the reason for affirming the decision under review. When such information is identified then, and only then, is it necessary to turn to s 424A(3). 42 The country information in this case plainly was not specifically about the applicant, since it was quite general in character. It is arguable that the country information was not "about" a class of persons at all, but rather was about the approach taken by the Sri Lankan authorities to the enforcement of laws designed to combat the LTTE. I think the preferable view, however, is that the country information was about a class of persons, namely Sinhalese with family, personal or business relationships with Tamils. The information related to their vulnerability (or otherwise) to arrest and torture at the hands of the Sri Lankan authorities. The appellant was a member of the class of persons so identified. 43 Was the country information "just about" that class of persons? Since the information that the RRT considered would be part of the reason for affirming the delegate's decision related only to Sinhalese with family, personal or business relationships with Tamils (and to no other persons), I think it was "just about" a class of persons of which the appellant was a member. This information was not about any other class of persons or individuals. 44 On this approach, s 424A(3)(a) was satisfied and, accordingly, s 424A(1) did not apply to the country information. It follows that the RRT did not breach s 424A(1) of the Migration Act by failing to give the appellant the country information in the prescribed manner. 45 The reasoning I have outlined, however, may not be open on the current state of the authorities. In VHAJ v Minister, Kenny J held (at 624 [52]) that whether or not information is "just about" a class of persons of which the applicant is one depends on whether or not the information is relevant to the decision-maker simply because it concerns this class. Her Honour propounded the following test (at 624 [52]): "If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be 'just about' a class of persons of which the applicant or other person is a member. If, however, the information is relevant to the tribunal's review upon some other basis, then it will not fall within s 424A(3)(a), even though it does not specifically concern the applicant and it is about (but not just about) a class of persons of which the applicant or another person is a member." 46 In NARV v Minister, Ryan and Finkelstein JJ observed (at 508 [28]) that there was much to be said for the view favoured by Moore J in VHAJ v Minister, that the character of the information should be determined objectively and without regard to the use to which it is put by the RRT. However, their Honours considered that the issue had been foreclosed by the majority in VHAJ v Minister, as they interpreted Downes J as adopting a similar approach to that of Kenny J. Their Honours considered (at 509 [30]) that: "[i]nformation which is 'just about a class of persons' is information possessing only one characteristic, in the sense of being information solely about that 'class of persons' and not going to another issue before the tribunal". 47 On this analysis, information may come to the attention of the RRT which, while relating to a class of persons, "may also go to another issue which is relevant to the reasoning process of the [RRT]" (at 509 [31]). Ryan and Finkelstein JJ considered that the information in the case before them, concerning a "high level of document fraud in Bangladesh" could be characterised as about a class of persons, namely Bangladeshi asylum seekers producing documents to support their claims. But (at 509 [32]): "applying VHAJ, that does not mean that information regarding the documents is 'just about' Bangladeshi asylum-seekers in the sense of merely, or only, being about that class of persons. The information also goes to a separate issue in the proceedings: the weight to be attached by the tribunal to particular documents relied on by the appellant." 48 Ryan and Finkelstein JJ distinguished between two categories of case. The first is where the RRT relies on country information relating, for example, to the level of protection afforded to various ethnic groups in a particular country. This information, according to their Honours, usually has "the single character of information solely about a class of persons" (at 509 [30]). On the other hand, information that also goes "to another issue which is relevant to the reasoning process of the [RRT]", such as the authenticity of particular documents, is not "just about" a class of persons of which the applicant is a member (at 509 [31]). 49 The concept of "another issue which is relevant to the reasoning process of the [RRT]" is, with respect, not entirely clear. The difficulty may be connected to the fact that proceedings before the RRT are inquisitorial in character and accordingly do not give rise to issues in the same sense as adversary litigation. It may be that their Honours had in mind that if the information has no relevance to the truthfulness or accuracy of the applicant's account of past events it will be within s 424A(3)(a) (and therefore excluded from the operation of s 424A(1)), provided that the information is not specifically about the applicant or another person and is about a class of persons of which the applicant or another person is a member. If, on the other hand, the information is regarded by the RRT as relevant to the truthfulness or accuracy of the applicant's account of past events, it will not be within s 424A(3)(a), since the information will not be "just about" the relevant class of persons. 50 If this is the correct interpretation of the reasoning in NARV v Minister, it would seem that the country information in the present case was not within s 424A(3)(a) of the Migration Act. This conclusion would follow because the information was regarded by the RRT as bearing on the credibility of the appellant's account of past events and thus was not "just about" a class of persons of which the appellant was one. It would also follow that the RRT breached s 424A(2), by not giving the appellant particulars of the information in the required manner. 51 As the correct construction of s 424A of the Migration Act was not fully debated before me, I prefer not to resolve this question finally. It is not necessary to do so as I think that, even if the RRT breached s 424A(2), the appeal should be dismissed by reason of the Minister's notice of contention.

the notice of contention 52 In Applicant NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102, the RRT had failed to notify the appellant in writing about a so-called "dob-in letter", which alleged that the appellant's claims were untrue. However, the RRT conducted an interview with the appellant to discuss the contents of the letter. The Minister conceded that the RRT had failed to comply with s 424A(2) of the Migration Act, since the invitation to provide the particulars and information required by s 424A(1) had not been made in writing as required by s 424A(2) (when read with s 441A). 53 The Full Court found (at [19]) that the RRT had accorded the appellant a fair opportunity to be heard and that he had been effectively told of all the matters contemplated by s 424A(1). The Court further found (at [22]) that "any failure to comply with subs 424A(2)…was not one of substance, but as to the purely procedural question as to the method or vehicle of conveying the important substantive information referred to in subs 424A(1). This is so, despite the apparently mandatory language of subs 424A(2)." The Court continued as follows (at [23]): "Thus, the relevant enquiry here is whether Parliament intended that breach of the condition as to the manner of delivery of the relevant substantive information should necessarily spell the invalidity of the Tribunal's decision, even in circumstances where there has been satisfaction of the important substantive requirement of subs 424A(1) to give the appellant the information there contemplated, and implicitly an opportunity to deal with it. The "mandatory" language (the word "must" is used in subs 424A(2)) is relevant to, but not decisive of, this enquiry. In our view, it cannot be concluded that invalidity of the Tribunal's decision is the necessary consequence of any failure to comply with subs 424A(2), irrespective of the absence of any unfairness, whether of a substantive or procedural kind. Thus, we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional. This is so, it seems to us, even without considering the application of s 474 of the Act. (Quite different considerations might attend the analysis had there been a breach of subs 424A(1).)" 54 The RRT's failure to observe the procedural requirements of s 424A(2), in circumstances where there was no unfairness or failure to accord procedural fairness to the appellant, did not amount to a failure to exercise jurisdiction or an excess of jurisdiction. This was so with or without any "reconciliation process" involving s 474 of the Migration Act. Accordingly, there was no basis for the Court to make an order in the nature of mandamus or prohibition. To the extent that injunctive relief could be granted under s 39B(1) of the Judiciary Act 1903 (Cth) by reason of non-jurisdictional error, the Court declined to grant that relief. It took that course both because of s 474 of the Migration Act and as a matter of independent discretion, given the absence of prejudice to the appellant by reason of the non-jurisdictional breach in question (at [27]). The Court considered that this analysis was consistent with the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 55 The present case, in my view, is indistinguishable from NAHV v Minister. The RRT informed the appellant of the substance of the country information on which it relied (in part) for its findings. In my view, it complied with s 424A(1) of the Migration Act. The appellant, as I have noted, had the opportunity to respond, both orally and in writing, to the country information, and did so. The RRT's breach, if any, was merely in the mode of communicating to the parties the information it was required to provide to the appellant. For the reasons I have explained, there was no unfairness to the appellant in the procedures adopted by the RRT. 56 In these circumstances, any breach by the RRT of s 424A(2) did not constitute jurisdictional error. Relief in the nature of mandamus or prohibition should not be granted. To the extent that injunctive relief is sought, it should be refused on discretionary grounds.

NANF v Minister for Immigration & Multicultural & Indigenous Affairs

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)

Cited By (4)