SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs

introduction 1 Three issues were argued by counsel for the appellant on this appeal from a judgment of the Federal Magistrates Court determining an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). They were: (a) whether the learned Federal Magistrate erred in the construction placed by his Honour on s 424A of the Migration Act 1958 (Cth) ('the Act'); (b) whether his Honour gave proper consideration to whether the Tribunal acted in an arbitrary way and thus, in a way not authorised by the Act, in making an adverse credibility finding concerning the appellant; and (c) whether his Honour should have found that the Tribunal wrongly replaced the statutory test for entitlement to a protection visa with a credibility test.

SECTION 424a 2 Section 424A of the Act relevantly provides: '(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.' 3 The critical issue on this appeal so far as s 424A is concerned is whether the Tribunal was obliged to give the appellant particulars of country information upon which it placed weight in making its decision. 4 The reasons for judgment of the Federal Magistrate note at [9] that the appellant argued in the Federal Magistrates Court that par 424A(3)(a) was: '… not applicable in his case because the country information used, directly affected him in the sense that it played a significant role in the Tribunal's assessment'. 5 At [10] his Honour's reasons for judgment also note that: '… the applicant appeared to further clarify his complaint relating to s 424A by saying that what he was really aggrieved by was that, what the Tribunal thought about the information was not put to him.' 6 The Full Court has recently given consideration to the proper construction of s 424A of the Act in VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 ('VJAF'). At [11]-[16] the Full Court observed: 'The appellant first submits that the Tribunal's failure to put to him, and to invite his comments upon, country information that it took into account after the hearing, constitutes a breach of its statutory obligation pursuant to s 424A(1) of the Act. This raises the question whether the Tribunal was exempted from that obligation because the country information falls within the exception provided in s 424A(3)(a) of the Act. Section 424A(1) obliges the Tribunal to give to the applicant for review particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. Both parties accept that this obligation is prima facieengaged in this proceeding. The scope of the exception provided in s 424A(3)(a) is, however, at issue: "This section 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 other person is a member." The appellant contends that the information does not fall within the exception for two reasons. First, the information, whilst not being specifically about the applicant is specifically about other persons, though unnamed. Second, this information is not "just about" a class of persons of whom the applicant is a member, as it also concerns "how the Cambodian authorities deal with SRP members." Both contentions fail. The first contention depends upon the characterisation of the information contained in the country reports. These reports were prepared by human rights bodies and foreign governments and concerned two main themes: the political environment associated with the holding of local level commune elections in February 2002; and the general treatment of SRP members by the Government. Those reports necessarily involved some reference to the people who took part in the events described therein. But it does not follow that this was information specifically aboutthose persons, and it plainly was not. The major premise of the second contention, as the appellant accepted, is that s 424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation. Such a construction of the paragraph has been rejected by previous Full Courts. The true construction of the paragraph is one whereby reference to the class of persons in subs 424A(3)(a) is not another criterion 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. That was the view of the unanimous Full Court in VHAP of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since. It must again be emphasised that the requirement for a Full Court to be satisfied that an earlier decision of another Full Court is plainly wrong before departing from it, is most unlikely to be satisfied by a mere repetition or development of arguments already authoritatively rejected. It is to be regretted that at least three Full Courts have recently been invited to depart from the settled construction of s 424A(3)(a) on what appears to have been no more than a rehearsal of previously rejected arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92. Much more is required: see Telstra Corp v Treloar(2000) 102 FCR 595 at 602-603 (Branson and Finkelstein JJ) and see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [28]-[30] (Lander J; Dowsett J and Hely J agreeing).' 7 I conclude that it is not open to me to entertain the submission that the construction of s 424A accepted by the Full Court in VJAF is not correct. Plainly therefore I must reject the submission that the Federal Magistrate erred in applying that construction of s 424A. 8 Additionally the submission that the Tribunal transformed the country information into information specifically about the applicant by placing reliance on it in rejecting aspects of the story told by the appellant must be rejected. This submission, when explored, came down to a submission that the appellant had an entitlement to be told why and how the Tribunal considered that the country information undermined the appellant's credibility. 9 In Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [95] Allsop J, with whom Heerey J agreed, observed: '… I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54] that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal. For example, as in Tin, supra, "information" does not extend to the subjective view in the mind of the Tribunal of the evidence, in that case that the applicant was "not credible" or, as here, that Mr John Knight appeared to give his evidence honestly. However, the distinction can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of para 424A(1)(b)) of information (for para 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.' 10 As Allsop J's observation makes clear, it is necessary to draw a careful distinction between subjective thought processes of the Tribunal and the information that has given rise to those thought processes. Section 424A says nothing at all about the giving of particulars of thought processes. The requirement to give particulars of information imposed by subs 424A(1) does not reach to information of the kinds identified in subs 424A(3). For this reason the Tribunal's thought processes concerning information of a kind identified in subs 424A(3) cannot transform that information into information to which subs 424A(1) applies. 11 The appellant's application to the Tribunal for review of the decision not to grant him a protection visa was made after 4 July 2002. Section 422B of the Act, which appears in Div 4 of Pt 7 of the Act, thus had application (see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)). Subsection 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.' 12 There is a division of opinion on the Court as to the ambit of subs 422B(1). The division of opinion may be illustrated by comparing the approach adopted by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 ('WAJR') at [47]‑[59] and Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 ('Moradian') at [35]‑[37] on the one hand with the approach adopted by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 ('NAQF') at [50]‑[87] and Hely J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 ('Wu') at [21]-[23] on the other. Although NAQF involved consideration of subs 357A(1) of the Act and Wu and Moradian involved consideration of subs 51A(1), rather than subs 422B(1), the cases provide relevant comparators because the three subsections are relevantly in identical terms. 13 In WAJR at [57] French J said: 'Section 422B provides that Div 4 of Pt 7 is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". The "natural justice hearing rule" is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant's claims to the tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness "in relation to the matters it deals with". This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the tribunal. The "matters" Div 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, that is, the conduct of reviews by the tribunal.' 14 In Moradian Gray J adopted a similar approach to that adopted by French J in WAJR, concluding that the 'matters' dealt with by Div 4 of Pt 7 are those identified in the specific terms of the sections which constitute the division. 15 In NAQF at [59]‑[60] Lindgren J said: '… on any reckoning the expressions "the matters it deals with" in subs (1) and "the matters they deal with" in subs (2) must have been intended to refer to something wider than the exact text of the enacted procedural requirements, otherwise those subsections would be superfluous. It is inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind, to be found within Div 5 (or ss 375, 375A and 376 and Div 8A). For example, within Div 5, s 360(1) provides as follows: The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. If s 357A(1) signified that the natural justice hearing rule was excluded only to the precise extent that it would have required the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review" (with all that that provision implies - see [85]) and no further, s 357A(1) would have achieved nothing in the present respect: the rule would survive as a ground for relief outside the parameters of s 360(1). Once it is accepted, as it must be, that the expression "the matters it deals with" in s 357A(1) was intended to refer to a larger subject matter or larger subject matters than the exact text of the procedural fairness requirements to be found in Div 5, the question "How much larger?" inevitably arises.' 16 Ultimately his Honour found it unnecessary in that case to determine the full reach of the expression 'the matters it deals with' in subs 357A(1). However, in Wu at [23] Hely J observed: 'The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2). The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted whilst the applicant is offshore (s 57(3)): see NAQF at [59] - [60].' 17 In my view the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively. 18 As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal's review process.