SZTSU v Federal Circuit Court of Australia

THE COURT: 1 This is an appeal from a decision of a Judge of this Court in the migration jurisdiction. The procedural history of the matter prior to it coming before her Honour at first instance is somewhat complicated, and can best be summarised as follows: (1) In the Refugee Review Tribunal ("the Tribunal") the appellant sought review of a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant him a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) ("the Migration Act"). The Tribunal dismissed that application. (2) The appellant sought judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia, however as the application was filed some 245 days after the decision of the Tribunal, the appellant required an order extending the 35 day period prescribed by s 477(1) of the Migration Act for the making of the application pursuant to s 477(2) of the Migration Act. (3) The application to the Federal Circuit Court for review of the decision of the Tribunal included three grounds, namely that the Tribunal: i. … made a mistake that it did not consider that the applicant would suffer harm if he returns to Fiji despite the fact that it accepted the applicant's fear for persecution in Fiji …; ii. … failed to provide the applicant the reason or parts of the reason which it considered to reject the applicant's review application. The Tribunal did not give any opportunity to the applicant to satisfy the Tribunal on its observations which were drawn against the applicant's genuine claim for protection in Australia. iii. … failed to comply with the Migration Act 1958. The Tribunal accepted the applicant's claim in a way that it can reject the claim. The Tribunal's grounds for rejection were not evidenced by any references or documents. The Tribunal willingly rejected the claim. The Tribunal was not fair and just according to part 7 of the Act 1958. The Tribunal used excessive power to reject the applicant's review application. The Tribunal did not act according to substantial justice and the merits of the case. The Tribunal did not consider the circumstances of the applicant and his genuine claim for protection in Australia for fear for his life. The Tribunal made procedural mistakes. (Errors in original.) (4) The Federal Circuit Court refused to make the order sought by the appellant pursuant to s 477(2) and dismissed the application with costs. (5) The appellant then sought judicial review of the decision of the Federal Circuit Court in the Federal Court of Australia, in the form of orders of prohibition, certiorari and mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth). The basis of this application was set out in the appellant's affidavit dated 27 August 2014. Materially, this provided: i. The First Respondent decided that the grounds on which I sought to challenge the validity of the Tribunal Decision (if I were to have been granted an extension of time in order to commence judicial review proceedings to this effect) were without merit and dismissed my application to extend time under s 477 of the Migration Act 1958 (Cth) for that reason, and for no other reason ... ii. I am now advised that my second ground of review should have been fairly understood as being a challenge to the validity of the Tribunal Decision on the basis that the Tribunal failed to comply with the requirement under s 424A of the Migration Act 1958 (Cth). iii. The First Respondent concluded that "[t]o the extent that the Tribunal relied on country information, it was not obliged to provide that information to the applicant under s 424A of the Act because it is information of the sort described in s 424A(3)(a) of the Act, namely, 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." ... iv. At paragraph 66 of the statement of reasons given by the Tribunal for the Tribunal Decision … the Tribunal refers to a report published on the internet on 13 January 2012 by the Sydney Morning Herald newspaper, concerning, in part, the opinion of a person described as "Vijay". v. This report is "information specifically about another person" within the meaning of s 424A(3)(a) of the Migration Act 1958 (Cth) … vi. The import of the opinion of Vijay is that the situation in Fiji for Fijian Indians is better since Commodore Frank Bainimarama assumed the office of Prime Minister of Fiji in 2006, and implicitly, that the risk of harm for such persons has subsided or is subsiding. vii. In paragraph 77 of the Tribunal Reasons the Tribunal states that a reason for the Tribunal Decision includes that since 2011, for whatever reason, the level of risk of harm to the applicant had subsided. viii. The statement in paragraph 77 of the Tribunal Reasons reveals that a reason for affirming the decision that was under review was that the risk of harm to the applicant, as a result of being a Fijian Indian, had subsided for whatever reason. ix. The opinion of "Vijay" is consistent with what was a reason for which the Tribunal affirmed the decision under review. x. The Tribunal did not give the applicant clear particulars of this information, being the opinion of "Vijay". xi. The Tribunal did not ensure, as far as was reasonably practicable, that the applicant understood why the information, being the opinion of "Vijay", was relevant to the review. xii. The Tribunal did not invite the applicant to comment on or respond to the information, being the opinion of "Vijay". xiii. The Tribunal was not relieved from the requirement to comply with s 424A by having complied with s 424AA, in relation to this information, being the opinion of "Vijay". (6) The application in the Federal Court was also dismissed with costs. It is this decision which is the subject of the present appeal. 2 When the appeal came before this Court, Counsel for the appellant sought an adjournment on the basis that Counsel (and his instructing solicitors) had been appointed to represent the appellant only two days prior to the hearing. This application was opposed by the Minister. The Court dismissed the application for an adjournment, however made directions for the filing of supplementary submissions by both parties, and indicated that either party could seek the leave of the Court to have the matter return for further oral hearing if necessary. In the circumstances no further submissions have been filed by either party. 3 In his notice of appeal filed 25 March 2015 the appellant claimed, in summary, that the primary Judge erred in failing to find that the decision of the Federal Circuit Judge exhibited the following jurisdictional errors: In circumstances where a key factor for consideration in determining whether to order an extension of time pursuant to s 477(2) is the prospect of success of the application - that the appellant's application for judicial review had no prospect of success. That the Tribunal was not obliged to provide information under s 424A of the Migration Act in relation to a newspaper article published in The Sydney Morning Herald on 13 January 2012 concerning the opinion of a person described as "Vijay", such findings being made on the basis that that information was information of the type described in s 424A(3). 4 The appellant also sought to add an additional ground of appeal, namely that her Honour erred in failing to quash the decision of the Federal Circuit Court on the basis of an error of law apparent on the face of the record.