NAYU v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 31 January 2002. The RRT affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection visa. The application under s 39B was filed on 2 January 2004, nearly two years after the date of notification of the decision. It was therefore made well in excess of the 28 day period prescribed by s 477(1) of the Migration Act 1958 (Cth) ("the Act"). The Minister has, accordingly, filed a notice of objection to the competency of the application. 2 The applicant is a citizen of Nigeria. He is a Christian and is of Ibo ethnicity. He claimed to have a well-founded fear of persecution on the ground of his political profile as a supporter of the Movement for the Actualisation of the Sovereign State of Biafra ("MASSOB"). He claimed that before he left Nigeria for Australia, the police had sought to arrest him because of his support for MASSOB. The applicant also claimed that he had a well-founded fear of persecution because he is a member of the Ibo race or tribe. 3 The applicant put forward four separate grounds on which he contended that the RRT had fallen into jurisdictional error. 4 The first was that he contended that his case was identical with the decision of the High Court in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966 ("Muin"). The second was that the RRT failed to properly investigate his claims. The third contention was that there was a contravention of s 418(3) of the Act. The fourth was that the applicant contended that there had been a breach of s 424A of the Act. The Decision of the RRT 5 The RRT referred to country information contained in an article entitled "Two Killed in Eastern Nigeria over pro-Biafra rally" which was taken from the Reuters News Service dated 23 May 2000. The article referred to the death of two youths in the eastern Nigerian city of Aba in a clash between police and militant supporters of Nigeria's failed breakaway Republic of Biafra. The article stated that the city had been tense since militants from MASSOB hoisted the Biafran flag at a rally on the previous night. The article also referred to the fact that more than one million people, mostly Christian Ibos in south eastern Nigeria, died in the Biafran war in the late 1960s. 6 The RRT also referred to a UK Home Office Country Assessment report for Nigeria dated April 2001. That report stated that there was no federal policy of discrimination against any of Nigeria's 250 ethnic groups and that legislation was designed not to favour one group over another. The report stated that this position was largely respected so long as a group did not pursue secessionist demands. 7 The RRT rejected the applicant's claim that the police in Nigeria were trying to arrest him prior to his arrival in Australia. The RRT rejected the claim because it considered that it was lacking in substance and was unconvincing in a number of respects. It is sufficient for present purposes to say that the RRT regarded a number of aspects of the applicant's evidence as vague and considered his explanation as to how the police would have known that he was a financial contributor to MASSOB to be implausible. 8 The RRT then said:- "In addition the Tribunal considers it inconsistent that the applicant claims on the one hand to have spent much of his time before coming to Australia moving from one hiding place to another to avoid arrest. On the other hand the applicant then claims to have participated in the flag-raising incident at Aba where MASSOB according to the country information … anticipated that there would be a police presence." 9 The RRT was not convinced that the applicant had a political profile at all. The RRT's reason for this finding was that, when the applicant was asked by the RRT why the police would wish to arrest him, his only explanation was that he was a financial contributor to MASSOB. The RRT stated that the applicant did not suggest that he had any other association with MASSOB. 10 The RRT also rejected the claim that the applicant faces persecution in Nigeria because of his race. The RRT noted the country information from the UK Home Office, which the RRT said indicated that there was no federal policy of discrimination against any of Nigeria's ethnic groups. The Muin Issue 11 As a Full Court made clear in NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465 at [24] (per Kiefel J, with whom Spender J and Moore J agreed), the decision in Muin establishes that there is a want of procedural fairness where an applicant is misled into thinking that the RRT has considered particular relevant information and, as a result, did not ensure that the information was placed before it. 12 Hely J referred with approval to Kiefel J's observations about the Muin principle in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 118 at [14]. His Honour also observed at [14] that the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 confirms that an applicant in a case such as this must show that he relied to his disadvantage upon communications from the RRT before any question of a want of procedural fairness can be said to have been made out. 13 It was central to the outcome of the decision in Muin that most of the elements of the claim were the subject of an agreed statement of facts. As a Full Court observed in VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [24], it was of importance that it was an agreed fact that the plaintiffs in Muin believed that the Part B documents had been sent to and looked at by the RRT and that they would have highlighted passages in the documents which assisted their cases. 14 In the present case there were no agreed facts. Moreover, there was no evidence to support the claim that the applicant was misled or that he had relied to his detriment on communications from the RRT. 15 Nor was there anything in the applicant's evidence to make good a contention that there was material in the Part B documents which was favourable to his application and which he would have referred to or highlighted to the RRT. 16 The applicant submitted to me that he had forwarded documents to the RRT and that he was not sure whether the RRT had considered the documents. However, this submission does not make good a contention of a denial of procedural fairness within the principles stated by the High Court in Muin. Failure to investigate claim 17 It is plain that the RRT rejected the applicant's claim that the Nigerian police were seeking to arrest him because it made adverse findings on the applicant's credibility. This part of the decision turns upon the RRT's assessment of the truthfulness of the applicant's claims. The RRT rejected the evidence as vague and implausible. 18 There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ). 19 The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances. 20 In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 - 170, Wilcox J pointed out that the circumstances under which a decision will be invalid for failure to make independent inquiries are strictly limited. His Honour observed that it is no part of the duty of the decision-maker to make the applicant's case for him. His Honour said that it is not enough that the Court may find that the sounder course would have been to make more inquiries. The exception is, as his Honour said, in a case where it is obvious that material is readily available and is centrally relevant to the decision to be made. In those circumstances, it would be an unreasonable exercise of the decision making power for the decision maker to proceed without making an attempt to obtain that information. 21 The observations of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [116] are to the same effect. 22 In the present case, there was nothing to suggest that there was material which was readily available to the RRT which would have brought the application within the principle stated by Wilcox J in Prasad. 23 The applicant submitted that he had provided various relevant documents including "foreseeable danger" in Nigeria but the Tribunal did not believe him. The applicant also submitted that the RRT failed to investigate his claims through Department of Foreign Affairs and Trade or any other independent sources. However, these contentions, even if correct, would be insufficient to bring the case within the principle stated in Prasad. Section 418(3) 24 Section 418(3) of the Act provides:- "The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." 25 The applicant submitted that there was a breach of this provision. However, there are two short answers to the claim. The first is that, in Muin, the majority of the justices were of the view that a contravention of s 418(3) would not entitle an applicant to injunctive relief or to relief by way of constitutional writs; see at [21] Gleeson CJ; [56] Gaudron J; [173] - [179] Gummow J; [251] Hayne J. 26 The second answer is that there is no evidence to make out a contravention of the section. There was nothing to suggest that documents which were favourable to the applicant's case and which were in evidence before the delegate or the Department were not given to the Registrar in accordance with s 418(3). As a Full Court said in SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 at [8]:- 'Simply because some documents in evidence before the delegate were not cited by the Tribunal does not mean that the Secretary was in breach of the obligation imposed by s.418(3)…" 27 Here, the failure to prove a contravention of s 418(3) is even more pointed because the applicant did not suggest that there were any particular documents in evidence before the delegate, or in the possession of the Department, which were not given to the RRT and which would have supported his case. Section 424A 28 This section relevantly 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) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (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. 29 As I said above, the RRT referred to two items of country information. The first was the article entitled "Two killed in Eastern Nigeria over pro-Biafra rally" ("the Biafra rally article"). The second was the UK Home Office Country Assessment ("the UK Home Office information"). 30 The RRT used the Biafra rally article to support a finding that there was an inconsistency between the applicant's claim that he was hiding from the police and his claim that he was present at the incident referred to in the Biafra rally article. I have set out the relevant passage of the RRT's decision at [8] above. 31 The RRT referred to the UK Home Office information to support its rejection of the applicant's claim that he fears persecution because of his race. I referred to this at [10] above. 32 The information contained in the Biafra rally article and the UK Home Office information were in each case the reason, or part of the reason, for affirming the decision of the delegate. The RRT was therefore required to give particulars of that information to the applicant unless it fell within the exception contained in s 424A(3)(a). 33 In NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 ("NARV") Ryan and Finkelstein JJ were of the view at [30] - [32], that information may come before 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 Tribunal. Such information would not, according to their Honours, fall within the exception contained in s 424A(3)(a) because it would not be information which was just about a class of persons of which the applicant was a member. Their Honours were of the view that this approach was consistent with, and indeed an application of, the principles stated in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 75 ALD 609 ("VHAJ") byKenny J at [50] - [55] and Downes J at [71] - [74]. 34 However, in VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, Gyles and Conti JJ were of the view at [14] that the approach taken by Ryan and Finkelstein JJ in NARV was inconsistent with that of Kenny J and Downes J in VHAJ. In VHAP, Gyles and Conti JJ rejected an argument that information which was general in nature, covering more than one class of persons, was not "just about a class of persons." Their Honours said at [14]:- "The reference to the class of persons in subs 424A(3) is not another criteria to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree." 35 Allsop J was of the view at [21] that the construction favoured by Gyles and Conti JJ is clearly correct. 36 The Biafra rally article was relevant to the reasoning process of the RRT in the sense referred to by Ryan and Finkelstein JJ because it went to the question of whether the applicant was in hiding before he came to Australia. It would, on their Honours' view, fall outside the exception contained in s 424A(3)(a) because it could not be said to be "not specifically about the applicant" and "just about a class of persons". 37 I am unsure whether the views of Kenny J and Downes J in VHAJ are inconsistent with those of Ryan and Finkelstein JJ in NARV. However, even if it were appropriate for me to seek to determine the issue sitting as a judge at first instance, for reasons referred to below, it is unnecessary for me to do so. 38 I should, nevertheless, mention that in VHAJ Kenny J said at [52] and [55] that information is just about a class of persons for the purposes of s 424A(3)(a) if it is relevant to the RRT's decision only because it is about the class of persons. Her Honour also said at [52] that if the information is relevant to the RRT's review upon some other basis then it will not fall within s 424A(3)(a). This seems to be similar to the approach adopted by Ryan and Finkelstein JJ in NARV. 39 The short answer to the issue in the present case is that even if the Biafra rally article did not fall within the exception, failure to comply with s 424A(1) does not necessarily give rise to jurisdictional error. As Gray J said in VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [48], not all cases of failure to comply with s 424A will be cases in which an applicant is deserving of relief. His Honour observed that there will be cases where the failure to comply with s 424A is technical but, as a matter of substance, there has been no disadvantage to an applicant. 40 The present case is one where there was no disadvantage to the applicant arising from any failure to comply with s 424A(1) in relation to the Biafra rally article. This is because the view which the RRT reached that there was an inconsistency between the applicant's actions and his attendance at the rally was no more than a supplementary reason for rejecting the applicant's claim that the Police wished to detain him 41 But prior to arriving at that additional reason, the RRT had already made a finding adverse to the applicant's claim that he was sought by the police in Nigeria. The RRT said that it reached that view because the applicant's vague evidence and implausible explanation "considered collectively" led to rejection of the claim. 42 It follows that even if the Biafra rally article did not fall within the exception contained in s 424A(3)(a), as a matter of substance, there was no disadvantage to the applicant caused by any failure to give him particulars of the information. This is really just an alternative way of expressing the conclusion that any denial of an opportunity to comment on the information could not have made a difference to the outcome; see Re Refugee Review Tribunal; Ex parte Aala [2000] 204 CLR 82 ("Aala"). 43 In any event, the Biafra rally article was brought to the attention of the applicant because it was referred to in the delegate's reasons. It is true that the particulars of the information and an invitation to comment on it were not given to the applicant in an appropriate letter supplied to him in accordance with s 424A(2). However, there is authority for the proposition that this does not amount to jurisdictional error; see Applicant NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (Carr, Kiefel & Allsop JJ) [2003] FCAFC 102 at [22] - [25]. 44 The UK Home Office information was plainly information which was "just about" a class of persons within s 424A(3)(a) of the Act for the reasons referred to by Kenny J at [50] - [55] and Downes J at [71] - [74] in VHAJ and by all of the members of the Court in VHAP. Accordingly, no question of a breach of s 424A(1) arises in relation to the UK Home Office information. Discretion - Delay 45 It is unnecessary to consider these questions because I have come to the view that no jurisdictional error has been established in the RRT's reasons. However, it is pertinent to observe that there was a delay of almost two years in bringing this application and no explanation has been offered for the delay; cf Aala at [53] - [56], [82] - [83]. Orders 46 It follows from the above that the orders I will make are that the application be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.