QAAC of 2004 v Refugee Review Tribunal

REASONS FOR JUDGMENT LANDER J: 3 This is an appeal from a judge of this Court who dismissed an application for judicial review of a decision of the Refugee Review Tribunal (RRT). 4 The appellant was one of three applicants before the primary judge. He is the husband of Applicant QAAD of 2004 and the father of Applicant QAAE of 2004. Each of the applicants is a citizen of Fiji. They arrived in Australia on 25 January 1999. On 2 April 2003 they lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 3 June 2003 a delegate of the Minister refused to grant the visas. On 4 July 2003 the appellant and the two applicants sought a review of that decision before the RRT. On 15 January 2004, after a hearing which was held on 2 October 2003, the RRT affirmed the delegate's decision not to grant the appellant and the applicants protection visas. The decision given on 15 January 2004 was handed down on 6 February 2004. 5 On 11 March 2004 the appellant and the two applicants filed an application under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (the Act) in this Court claiming the issue of the constitutional writs. 6 The grounds upon which the application was brought were: (a) the RRT did not deliver to the appellant and the applicants material adverse to their case prior to the decision being made; (b) the RRT relied upon generalised, not contemporaneous, material as to the state of affairs in Fiji; (c) the RRT wrongly relied upon the fact that the appellant and the applicants had previously applied for carer visas when finding that there were no grounds for protection visas; (d) the appellant and the applicants were denied procedural fairness in that their applications were prepared from advices by a migration adviser who was not competent and, as a result, their applications did not address convention reasons; and (e) the appellant and the applicants were denied procedural fairness in that the RRT failed to take into account their lack of education and English language skills. 7 The first matter raised for the consideration of the primary judge was the construction and application of s 424A of the Act. 8 Section 422B of the Act applies to all applications for review made on or after 4 July 2002 and thus applies in relation to the application of the appellant and the applicants which was made on 4 July 2003. 9 Section 422B(1) provides: 'This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.' 10 Section 424A, which is part of that Division, deals with the provision to applicants of adverse information. Relevantly, it provides: '424A(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 reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. … (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.' 11 The primary judge construed s 424A(3)(a) as meaning that the RRT was not under an obligation to provide country information to the appellant and the applicants which was not specifically about them or another person. He concluded that the effect of s 424A was that that meant there was no requirement upon the RRT in complying with its obligation of natural justice to bring the information to the attention of the appellant and the applicants. 12 In doing so, he followed a decision of the Full Court in this Court in VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 ('VHAP of 2002') which rejected a construction of the Act contended for in that case that the words 'just about a class of persons of which the applicant or other person is a member' is another criterion of exemption. In that decision the Full Court held that those words were designed to underline the specificity required by precluding any argument that any reference to a class would be taken as a reference to all individuals falling within it. 13 The country information in VHAP of 2002 was the same type of country information with which the primary judge was concerned. 14 In those circumstances, because the Division applied to the applications of the appellant and the applicants, the primary judge concluded there was no failure on the part of the RRT to accord them natural justice in not disclosing the country information. 15 The primary judge further concluded that, even if he was wrong about that and the RRT should have provided the appellant and the applicants with the country information, the appellant and the applicants had not established that there was any further information which may have been available to controvert the country information. He found that the appellant and the applicants had had an opportunity to indicate the evidence which was available to them which would have controverted the independent country information but had not done so. As a result, his Honour concluded that no such evidence was available and, therefore, even if there had been a denial of natural justice, no practical injustice had been demonstrated. His Honour dealt with the other arguments and found: (a) the country information was directly relevant to the grounds advanced for a protection visa; (b) the RRT was entitled to have regard to the timing of the application for a protection visa (which was more than four years after their arrival in Australia) and the grounds of their previous application for a carer visa; (c) the appellant had not been denied an opportunity to present his case before the RRT and, in fact, detailed submissions had been made on his behalf by his agent; and (d) there was nothing to support the contention that the appellant and the applicants had been denied procedural fairness because their lack of education and English language skills were not taken into account by the Tribunal. 16 Two arguments were advanced on this appeal. First, the primary judge wrongly construed s 424A of the Act. That submission carries with it the contention that the decision of the Full Court in VHAP of 2002 is wrong. Secondly, the primary judge was wrong to find that the appellant and the applicants had suffered no practical injustice by not having the independent country information brought to their attention. 17 If the first submission fails, then the second submission does not need to be addressed. 18 To succeed on this appeal and have the matter remitted to the RRT, the appellant must succeed on both grounds. 19 The other matters advanced before the primary judge were not pursued on this appeal. 20 In VHAP of 2002, Gyles and Conti JJ held that the proper construction of s 424A(3)(a) of the Act was that the words 'just about a class of persons of which the applicant or other person is a member' were included to underline the specificity required and to preclude any argument that reference to a class would be taken as reference to all individuals falling within it. Allsop J agreed with the construction arrived at by Gyles and Conti JJ. 21 This Court would follow a decision of a previous Full Court unless this Court was convinced that the decision was plainly wrong. 22 The decision in VHAP of 2002 has been followed by another Full Court which arrived at the same construction: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 ('NAMW'). After a consideration of the section, the members of that Full Court independently reached the same view as the members of the Full Court in VHAP of 2002. A further Full Court in WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 ('WAJW'), as recently as December 2004, was invited to conclude that the decisions in VHAP of 2002 and NAMW were wrong and should not be followed. That Full Court declined to do so. 23 On this appeal, counsel for the appellant raised, yet again, another argument as to why the decisions in VHAP of 2002, NAMW and WAJW were wrong. 24 On this appeal, it was contended, that s 424A(3)(a) of the Act regulated the admissible evidence which may be adduced before the Tribunal and was there to protect the applicant against any irrelevant material coming before the Tribunal. 25 It was submitted that the section had the effect of requiring the Tribunal to provide to the applicant the irrelevant material which the Tribunal had identified, so that the applicant could comment upon that irrelevant material. The proposition only has to be stated to reject it. 26 In my opinion, this Court has authoritatively and finally determined the true construction of s 424A(3)(a). 27 Two Full Courts have arrived at the same construction. A third Full Court has refused to say that the previous two Full Courts were plainly wrong. 28 In those circumstances, it would simply be inappropriate for a fourth Full Court to accede to a submission that the first two Full Courts were plainly wrong and the third Full Court was wrong not to conclude that the first two Full Courts were plainly wrong. 29 There comes a time when the Full Court of this Court must decline to enter into a consideration of the correctness of its previous decisions and that time has been reached in relation to the construction of this subsection of s 424A. 30 If another construction of s 424A(3)(a) is to be arrived at, it must be after consideration by the High Court of Australia. 31 The first ground must be dismissed. 32 Because the appellant has failed on that ground, the second ground does not need to be addressed. 33 In my opinion, the appeal should be dismissed and the appellant should pay the respondent's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.