NBBX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 753 | Case summary

Background 2 The applicant claims to be a citizen of Somalia who arrived in Australia on 11 April 2003. He lodged an application for a protection visa on 16 May 2003. The application was supported by a statement in which he set out his claims in some detail. In summary, the applicant said that he was of the sub clan Reer Moshe of the Bandhabow clan which belongs to a group generally referred to as the Benadiri clan or group. Before coming to Australia he had been living in Ethiopia. He claimed to fear persecution in Somalia from larger, more prominent Somali clans on the basis of his membership of the Benadiri clan, a much smaller clan. He also claimed that he could not return to Ethiopia as he was only ever living there illegally and that even if he did return, he would be at risk of being returned to Somalia. 3 The following is a more detailed summary of the applicant's claims. He was born in Mogadishu, Somalia, in 1985. As a result of the civil war in Somalia, his family journeyed on foot to Ethiopia in 1991. His father took with them a reasonably large sum of money. The applicant had not been told of any particular problems facing his family before the war, however people had always looked down on them because they were seen as being of Portuguese origin. The applicant and his family settled in Ethiopia in a village called Kebribeyah. He was then aged six. The applicant and his family lived in the village. Refugees usually lived in the camp outside the village, one of two in the area. The applicant never went to the refugee camps and never saw any United Nations officials, though he knew there were some at the camps. People going from Kebribeyah to the refugee camps would be arrested if they did not have any documentation. People living outside the camps were not recognised as refugees. Neither the applicant nor his family ever sought or obtained refugee status. This was because his father had a family to care for and a business. The applicant knew of people from the camps who had been taken away by the Ethiopian authorities. He suspected they had been deported. People who did not live in camps could not be registered and were also in danger of being deported to Somalia. 4 There was some animosity towards the applicant and his family, and children occasionally threw stones at them. The applicant had never travelled outside Kebribeyah before coming to Australia. He did not know the surrounding area well. The town had a population of around seven or eight hundred people, about 450 of whom had fled Somalia. The town had no electricity, no telephones, no communications, no television, no schools and no health clinic or hospital, just a small window where medicines were sold. The town's houses were very small with stone walls, wooden doors and grass roofs. There were a few shops but not much employment. 5 In Kebribeyah, his father ran a small teashop/restaurant. Some people in Kebribeyah had battery-operated radios, including his father, who listened to the BBC Somali language service and cassettes. The applicant could not read or write, except for a few clients' names his father had taught him. He had no formal education because there were no schools. Ethiopian soldiers would frequently take people away, usually adults, generally two or three people a week but sometimes more and they would never return. The applicant feared being captured by them and returned to Somalia where he would be killed. Because he was getting close to becoming an adult, when he would be more at risk, his father decided to send him to Australia. His father arranged this through a customer of his restaurant who introduced him to an Indian man in Addis Ababa ("Patel") who made the necessary arrangements. 6 The applicant was provided with a false passport in a dark red colour. Patel organised everything and accompanied him all the way to Australia. The applicant flew to Australia via South Africa arriving in Australia on 11 April 2003. He used the red passport though he did not know the nationality of the passport. Patel took him to a mosque in Lakemba where there were Somali people. He was later taken to a man's house. He lived there until he was taken into detention after lodging his application. He had no identity documents. He has had no contact with his family since leaving them and his family does not know his whereabouts. He has given their names to the Red Cross to trace them but to no avail.

Consideration of issues 23 I deal first with the question of whether the applicant was denied procedural fairness in relation to the question of whether he was a citizen of Somalia. As noted earlier, the Tribunal said it could not determine the applicant's current nationality even though it found he spoke Somali, was accepted as Somali by members of the Somali community in Australia and therefore accepted he was of Somali background and lived in Somalia at some time in the past. Counsel for the applicant referred to various pages in the transcript of the hearings where the Tribunal indicated its concerns about the identity of the applicant. At a fairly early stage of the hearing on 4 September 2003 the Tribunal indicated it was concerned to try and establish who the applicant was and where he had been. The Tribunal made observations to the same effect several more times that day. The hearing concluded that day with a discussion between the Tribunal and a solicitor representing the applicant. In that discussion the Tribunal indicated it was still looking at the question of the applicant's identity and spoke of "who he is, what his clan group is, where he's been and how he came here". I do not accept that these exchanges indicated the Tribunal was indicating it accepted the applicant was, as he had consistently claimed, a Somali national and the uncertainty the Tribunal was speaking about concerned only his name and clan membership. 24 Counsel for the applicant relied on a passage in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 in which the Full Court said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 25 In my opinion, the complaint made by the applicant falls into the last mentioned class of matters. That is, it is a complaint about the failure of the Tribunal to expose its mental processes and provisional views. It revealed them up to a point, though did not expressly say it doubted the applicant's claim that he was a Somali national. But it was not obliged to do so in the sense that its failure to refer expressly to misgivings it had about the nationality claim did not constitute denial of procedural fairness. 26 The next matter concerns the drawing of the plan. This point is without substance. What happened was no more than this. The Tribunal asked for a description of the town in the applicant's own words. The applicant asked whether the Tribunal would like him to draw it, then saying "or how would you like it?". In response, the Tribunal repeated the import of the earlier question by asking the applicant to describe it. I simply do not see how, on any view of this exchange, it can be sensibly suggested that the Tribunal denied the applicant procedural fairness by denying him the opportunity of furnishing a plan. 27 An issue of greater substance concerns the passenger list. It was not in issue that information derived from the passenger list was information in respect of which particulars had to be given under par 424A(1)(a). It is to be recalled that the passenger list was relevant because the applicant claimed to have entered Australia on this flight accompanied by the people smuggler and claimed to have used a red passport. On the applicant's case he was then 17 or 18 years old. The information provided to the applicant by the Tribunal about the passenger list was as follows (contained in a letter dated 18 December 2003): The presiding Member has asked me to advise you that she does not intend to provide you with a copy of the passenger list for QF 64, even with identifying details removed as it would be time consuming to prepare such a list and in light of the details provided below, she does not believe that this is necessary. After removing the names and details of the travel documents used by passengers, all that remains is their date of birth and the country of which they are a citizen. If you believe that there is other information in the passenger list which would assist in clarifying the time or manner in which [the applicant] arrived in Australia, please advise the Tribunal of the nature of this information and the Member will reconsider this decision. The Member has thoroughly examined the list and checked the description of the passports of all passengers on the flight against the descriptions contained in the Passport Handbook (Kessing Security Documents Publishing in co-operation with the International Criminal Police Organisation Interpol). She has determined that the only male passengers who could have entered on red passports were from Cyprus (which issues red passports) and the UK (which has issued burgundy or purple passports in recent years). None of them had names which suggested that they were of African or Indian background. She then examined the Department's movement records for each of these passengers. The results of these investigations are set out below. · There was one man using a Cypriot passport. He was aged in his 60s and was travelling with a woman of the same surname and from the same age group. Both he and the woman left Australia on the same passports which they used to enter. There were 9 men from the UK on the plane: · Mr A aged in his mid-60s who is the holder of a temporary business entry permit. He has travelled from and to Australia several times on the same passport since April 2003 · Mr B aged in his early 50s who holds a permanent resident visa. He has travelled to and from Australia several times on the same passport since April 2003. · Mr C aged early 60s; holder of a temporary business entry permit. Has travelled from and to Australia several times on the same passport since April 2003. · Mr D aged in his mid-70s who holds a retirees visa. He has not left Australia since April 2003. · Mr E aged in his early 40s who travelled to Australia on a visitor visa and left the country for New Zealand on the same passport about a week later. · Mr F who is aged in his late 30s and holds a skilled worker permit. He has travelled outside Australia on the same passport twice since arriving in April 2003. · Mr G aged in his early 60s who arrived on a visitor visa and has travelled to Australia twice on the same passport since that time. · Mr H aged in his mid 20s who arrived on a tourist visa and left several days later to travel to New Zealand on the same passport. His movements record shows that he was born in the UK. · Mr I aged in early his 70s who arrived on a tourist visa and was travelling with a woman of the same age and surname. They have both travelled to and from Australia on the same passports more than once following April 2003. There was also a male passenger from the Netherlands on the flight. As the Netherlands issues red passports and this passenger (who is aged in his late 40s and is a permanent resident of Australia) used a different passport to leave the country after 11 April 2003 the Member asked the Department officer (who had previously examined the passenger list to determine whether [the applicant] had been on the flight) why he had decided that it was not possible that [the applicant] had used this passport to enter Australia. The officer's response is attached as in the view of the Member, apart from the information provided on this particular passenger, it provides information on the nature of the checks conducted when the Department determined that [the applicant] was not on the flight in question and the context against which this information was assessed. Further checks using the Passport Handbook also revealed that the Netherlands only began issuing red passports in 1995 and that these passports had 8 digit numbers preceded by a letter. Prior to this the passports were blue and had six digit numbers preceded by a letter. The passenger in question used a passport with only 6 digits, which indicates it was issued before January 1995 and was thus blue. After examining the passenger list and movements records for these passengers, the presiding Member does not believe that it is possible that [the applicant] entered Australia on any of these passports. The only passenger who is anywhere near [the applicant]'s age carried a passport which showed that he had an English name and was born in the UK. She finds it very difficult to accept that a young non-English speaking African male would have been able to enter Australia on this passport, particularly in the current security climate. She also notes that the passenger in question travelled on to New Zealand on the same passport shortly after arriving in Australia. With one exception, all of the other passengers also left Australia after 11 April 2003 using the same passports as they used to enter the country on 11 April 2003. The only passenger who has not left the country entered on a retiree's visa. As these are only issued to people of retirement age the Member does not believe that [the applicant] would have been permitted to enter the country on this passport, even if his picture had been placed on the relevant page. In these circumstances, it appears to the Member that [the applicant] has not been honest in the evidence he has given regarding his arrival in Australia. He appears to be concealing information about the time and manner of his entry into the country, which raises serious questions about his overall credibility. 28 It can be seen that the Tribunal identified passengers who were male and might have been travelling on a red passport. It then reviewed information on the passenger list and, in some instances, other information about the particular passenger's movements in and out of Australia. It then excluded the possibility that the applicant might have been any of the passengers it identified. Having excluded them all, it concluded that the applicant could not have been on the flight and travelling with a red passport. A critical first step in this process of exclusionary reasoning, was for the Tribunal to identify passengers who might have been travelling on a red passport. 29 Counsel for the applicant challenged the way the Tribunal took this first step. This was not done to invite reconsideration of the Tribunal's finding of fact that the applicant was not a passenger on this flight. Rather it was to illustrate that the Tribunal did not provide the applicant with all particulars of information comprehended by subs 424A(1). The passenger list itself is in evidence (as a confidential exhibit tendered by counsel for the applicant). It contains information additional to that referred to by the Tribunal in its letter. In particular, it contains the family and given names of each passenger, a date of birth, a "visa ID" in some instances as well as a passport number and a description of the citizenship of each passenger. Counsel for the applicant contended that by reference to the passenger list, and the extracts from the Kessings Passport Handbook he tendered, it was possible to identify two classes of passengers which were not considered by the Tribunal but which might include the applicant. In one class are a number of passengers who may have been travelling on a red passport (though it would have been a diplomatic passport) who were not citizens of either Cyprus or the United Kingdom. In the other class are 11 passengers who travelled on a South African passport and about whom, at least arguably, there would have been no information available to the Tribunal from the Kessings Passport Handbook to exclude the possibility each of them was travelling on a red passport. That is because each of these passengers was travelling on a passport which had a serial number for which there was no corresponding entry in the Handbook. Conceivably, so the analysis went, South Africa may have issued red passports which were not recorded in the Handbook. 30 It may well be thought that the first possibility (that the applicant was travelling on a red diplomatic passport) is remote and the second (some ordinary South African passports might have been red rather than blue (or green as for the official passport) as depicted in the Handbook) is extremely remote, if not fanciful. However that is not the issue raised by this ground. The issue is whether the Tribunal was under a statutory obligation to provide the applicant with particulars of information from or about the passenger list and, if it was, did it do so and if not, what were the legal consequences of its failure. 31 It is to be recalled that the Tribunal did not accept that the applicant entered Australia in the manner claimed in his submissions and indicated it was unable to determine his current nationality. Indeed the Tribunal was satisfied that the applicant was concealing details of his background and his reasons for coming to Australia. This last conclusion appears to have been substantially based on the Tribunal's rejection of the applicant's claim to have arrived on QF 64 on 11 April 2003. It is also to be recalled that the Tribunal's rejection of that aspect of the applicant's claim was based in substantial part on its analysis of the flight list and related information about passports and their colour. It is relatively clear from the letter dated 18 December 2003 that the Tribunal considered the information contained in the passenger list would form part of the reason for affirming the decision under review. Indeed in an earlier letter dated 10 September 2003 to the applicant, the Tribunal foreshadowed that as a result of checks the Department had done concerning the flight it could be concluded that the applicant had not arrived on that flight. It is also relatively clear that the Tribunal thought it necessary to invite further comment (as apparent from the first paragraph of the letter of 18 December 2003) concerning information in the passenger list which the applicant might wish to have considered. 32 Because of s 424A, the Tribunal was obliged to give the applicant particulars of the information it relied on which had been drawn from the passenger list. Indeed, counsel for the Minister did not dispute this. The Tribunal substantially did so in its letter of 18 December 2003. However the Tribunal used all the information on the passenger list which might identify a male of approximately the age of the applicant who might have travelled on a red passport to exclude the possibility that the applicant travelled on that flight. Accordingly, the Tribunal was, in my opinion, under an obligation to give the applicant particulars of all information on the flight list which would have enabled the applicant to meet and contest (as his counsel has sought to do in these proceedings) the conclusion that, because of that information, the applicant was not on that flight. It failed to do so. It is sufficient to note that the applicant should have been provided with particulars of information of passengers who were arguably male and broadly within the applicant's age range and who might conceivably have been travelling on a red passport. Indeed, the Tribunal probably should have given the applicant particulars of all the information (with one qualification) on the flight list which would enable an analysis to be undertaken by the applicant to see if one could exclude the possibility that the applicant was on the flight. The qualification concerns confidentiality and it would have been open to the Tribunal not to have provided particulars of information which would have revealed the identity of the passengers either through their names or passport numbers. The Tribunal's understandable concerns about confidentiality could have been met by the material being summarised or the actual list being provided in some redacted form. In my opinion, the Tribunal failed to comply with the requirements of s 424A. 33 Counsel for the Minister initially sought to submit, by reference to an affidavit of Mr William McLoughlin, that had further particulars of the information on the flight list been provided to the applicant it would have made no difference. Ultimately, as I understood the submission of Counsel, this evidence was relevant because, as a matter of discretion, constitutional writs should not issue even if a case has otherwise been made out for their issue. However this evidence only goes so far as to establish that some of the people on the list who might conceivably have been the applicant, were in fact members of the crew of the aircraft. This evidence does not establish that had particulars of the information on the flight list been provided, the applicant would not have been able to maintain an argument that it was not open to the Tribunal to exclude the possibility that he was on the flight. 34 On the question of whether a failure to comply with s 424A amounted to jurisdictional error (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [44] and [67]), counsel for the Minister confined his submissions to an argument that the obligation imposed by that section is conditioned on the views of the Tribunal about what is significant. That entails a factual assessment and if it is wrong it is, at most, an error of fact and not jurisdictional error. It is true that subs 424A(1) requires the Tribunal to provide "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision". However it is clear from first sentence of the second paragraph of the letter of 18 December 2003 that "the list and…the description of the passports of all passengers on the flight" (emphasis added) were viewed by it as information which might lead to it affirming the decision under review. The decision itself reveals the Tribunal reached its conclusion by checking the passenger list and not simply selected parts of it. Because of the process of exclusion it undertook, of rejecting the possibility that the applicant was any one of the passengers, it mistakenly failed to provide the applicant with particulars of all that information. 35 I finally deal with the last ground raised by the applicant. It was submitted that by operation of subs 424A(1), the applicant was entitled to know the name and contact details of the Regional Refugee Coordinator. For my part, I do not see how this can be said to be information on which the subsection operates. It is not apparent either from the Tribunal's decision or any other material before the Court that the name and contact details were information (whether in the opinion of the Tribunal or objectively) on which the Tribunal's decision was to be based either in whole or in part. It was not information required to be particularised. 36 For the reasons I have given in relation to the passenger list, a writ of certiorari should issue removing to this Court and quashing the Tribunal's decision and a writ of mandamus issue requiring the Tribunal to hear and determine the applicant's application for review. The Minister should pay the applicant's costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

NBBX v Minister for Immigration & Multicultural & Indigenous Affairs

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