VAAC v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-05-08|Before: Marshall J

REASONS FOR JUDGMENT 1 The proceeding before the court 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"). Section 475A of the Migration Act 1958 (Cth) is called in aid of the application.

Procedural background 2 The applicant is a citizen of Afghanistan and a Sikh. He and his wife entered Australia on 30 May 1998. On 13 July 1998, they applied for protection visas. On 9 December 1998, a delegate of the respondent refused their applications. The delegate held that the applicant and his wife were nationals of India. 3 On 31 December 1998, the applicant applied to the RRT for review of the decision of the delegate. The RRT acknowledged receipt of the application by letter dated 4 January 1999. On 3 July 2000, the applicant and his wife attended a hearing before the RRT at which they were assisted by an interpreter. 4 The Deputy Registrar of the Melbourne Registry of the RRT wrote to the applicant by letter dated 4 October 2000 ("the RRT's letter") in the following terms: "The Member considering your application has asked me to write to you now that she has before her additional information relevant to your circumstances. On 11 July 2000, after the hearing about your application, the Member wrote to advise that she was satisfied that you and your wife are originally from Afghanistan but was not yet satisfied about the circumstances and timing of your departure from Afghanistan. She considers that you may have been in India for longer than you have claimed but even on your own evidence you were there for more than a year. The letter also advised that she must consider the question of whether you and your wife could access effective protection in India where many Sikh and Hindu people have fled from Afghanistan. A person is considered to have effective protection if they are able to enter and live in another country where they will not face as real chance of persecution or of being returned to their original country. The key considerations in relation to the circumstances presented in your application are: · whether you would be able to re-enter or reside in India; · whether there is a real chance that you would face persecution in India because of your race, religion, nationality, membership of a particular social group or political opinion; and · whether there is a real chance that you would be returned to Afghanistan if you were to return to India. The question of effective protection in India is a very important consideration in relation to your application because Australia does not have protection obligations to people who would be afforded protection in another country. The Member has now read a number of documents about the situation of Afghan refugees in India although has found nothing about the particular circumstances of Afghan Sikhs. The purpose of this letter is to provide you with that material and to invite your comment on it. Attached is a document titled 'Relevant independent information about Afghanistan and India'. It is a summary of all the material the Member will consider in deciding on your application. Your comment is particularly invited on the information summarised on pages 5 and 6 of the summary, which is in bold type and which addresses the circumstances of Afghan refugees in India. Copies of the documents referred to are attached. The Member has noted that people without an Afghan passport were during 1999 refused renewal of their residency permit, something which had previously happened automatically. It is said that many such people fear that they may face deportation but the Member has noted that the United States Department of State has indicated that there are no reports of people being returned to a country where they fear persecution. She notes that the South Asia Human Rights Documentation Centre believes that some Afghan refugees have been deported but provides no evidence of this. It is clear that many Afghan refugees in India face difficulties in going about their lives because of poverty and limitations on their rights to pursue employment. Education, training and health services are provided, but it would appear, not to the level which might be desirable. These factors, however, may not be of a kind which mean that you would face persecution in India. Persecution, as the Member is required to interpret it, means serious detriment or disadvantage for the reason of your race, religion, nationality, membership of a particular social group or political opinion. The Member has noted the view that the involvement of Afghan mercenaries in Pakistan's war with India over Kashmir may have turned Indian public opinion against Afghan refugees. She does not at this stage consider that it would be probable that a Sikh person who is a refugee from Afghanistan would be imputes (sic) with a pro-Pakistan stance in relation to that war. The Member will take any comment you make in to account before she finalises her decision on your application. In considering the question of effective protection in India, she will also have regard to the evidence about the Indian passports you used to enter Australia. She has asked me to let you know that while she has provided full copies of the material relevant to effective protection in India, as the central issue for consideration in relation to your application, she is happy to provide upon request full copies of any other documents cited in the enclosed summary of independent information which she will take in to account in deciding your application." 5 The applicant's adviser responded to the RRT's letter by a letter dated 12 October 2000 in the following terms: "Thank you for your letter and research information about Afghans in India and an expression of the three key considerations of the member. I would however like to point out the following: 1. This applicant and his wife have no valid Afghan passport; they travelled to Australia using assumed identities and with documents of other parties; in order to obtain valid documents as Afghan born persons, they would have to approach and apply to Afghan government authorities; as they submit that they have a well founded fear of persecution at the hands of the Afghan authorities (i.e. the Taliban), they cannot be expected to approach those authorities

In information provided by the Honorary Consul for India is (sic) Melbourne includes Requirements for the granting of visas to enter India; the relevant requirement here is that the applicant have "A valid passport, with a remaining validity of one year" (see Visa Application Form); as the couple fear approaching Afghan government authorities, they cannot meet this requirement, so cannot even apply for a visa to enter India.

India is not a party to the 1951 Refugee Convention or the 1967 Protocol and so is not bound by Article 33 of the Convention; hence even if the couple were able to re-enter India, they would not have protection from refoulement in relation to Afghanistan. The applicant and his wife have no guarantee of effective protection without refoulement were they able to re-enter and reside in India.

In addition, reference is made on page 6 to human rights groups which "believe that there have been some cases of refoulement and forcible, or at least involuntary, repatriation involving Sri Lankan Tamils and Jumma refuges from Bangladesh. …A later SAHRDC report dealing specifically with Afghans states that it is believed that India has deported Afghans but provided no examples or evidence for this claim." Even anecdotal evidence of forced returns would make it unacceptable for this couple to return to India.

In summary, according to information provided by the Indian Honorary Consul's office in Melbourne, this couple could not acquire a visa to enter and reside in India. It is not clear whether the couple could be assured of not being returned to Afghanistan.

We ask that these responses be taken into consideration by the Member as she decides whether this couple is one to whom Australia should afford protection."

6 There was no subsequent written communication from the RRT to the applicant which canvassed the issues raised in the RRT's letter of 4 October 2000 or raised in the adviser's response to that letter.

The RRT's decision 7 In a decision dated 23 October 2001 and published on 23 November 2001, the RRT affirmed the decision of the delegate that the applicant was not entitled to a protection visa. 8 In its decision, the RRT dealt with the issue of whether the applicant and his wife were able to return to India. It said as follows: "I have considered whether the applicants could re-enter and reside in India. It is noted that past inquiries by the Tribunal to the Indian authorities about the status of particular individuals have not yielded useful information. Even on their own evidence, the applicants spent more than a year in India and I have already stated that I have been unable to accept their account of the timing and circumstances of their departure so it is possible that they spent a considerably longer time in India. My consideration of the evidence has led me to the view that it is likely, as a matter of practical reality and fact, that the applicants could obtain a visa to return to India and to live there. The applicants' adviser's submission was that the applicants do not have effective protection in India because they do not have Afghan passports necessary to obtain a visa for India and they would have to approach the Afghan authorities to obtain a passport and cannot do so because they fear persecution from these authorities. It may be that the applicants' adviser was not aware that there is an Afghan Consulate in Canberra which represents the non-Taliban government still in control of a portion of the country in the north and which is able to issue passports. I do not accept that an approach to the Consulate in Canberra to obtain passports would lead the applicants to face any trouble at all. Independent information indicates that India has allowed people of Indian descent who left Afghanistan to live there and that many of these people have done and do so. I consider it highly unlikely that the Indian authorities would refuse admission to a Sikh couple (and their child) who had lived there for some considerable time (of at least more than a year but possibly longer) previously. I understand that the Indian government refuses to admit Afghans who have come from or through Pakistan, something which indicates some caution on the admission of Afghans, but there is no firm evidence that the applicants have come through Pakistan or when they did so. It is, however, apparent that the applicants have not been near Pakistan for well over four years at least and it therefore seems most improbable that the applicants would be refused a visa to return to India because of this provision." 9 In summary, the RRT found that the applicant and his wife are nationals of Afghanistan and that they are Sikhs by religion. It also found that their fear of persecution, if returned to Afghanistan, was well founded. However, the RRT found that the applicant and his wife were able to "re-enter and reside in India". This finding was made having regard to the fact that the applicant and his wife spent at least a year in India after fleeing from Afghanistan. Central to the RRT's reasoning in this respect was the passage contained in its decision which is set out at [8] above.

Legislative context 10 Section 424A of the Act 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

(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.

(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

Section 424A - the applicant's contentions 11 Counsel for the applicant, Mr Gibson, submitted that the RRT acted in breach of s 424A of the Act and consequently acted in breach of the requirement to afford the applicant procedural fairness in reaching its decision to affirm that of the delegate. 12 It was contended that the RRT failed to give the applicant particulars of the information it had concerning the ability of the Afghan government in exile to issue passports to Afghan nationals in Australia through its consular services located in Canberra. As that information formed an essential part of the reason for affirming the decision the subject of the RRT's review, it was contended that s 424A of the Act required that the RRT give the applicant particulars of that information. The applicant, it was contended, should therefore have been invited by the RRT to comment on the information that he was able to obtain a passport in Canberra in the manner suggested by the RRT in its reasons. 13 In this regard, I note that nowhere in the RRT's letter of 4 October 2000 and nowhere in the document which was attached to that letter was there any reference to the existence in Canberra of an Afghan Consulate which represented the non-Taliban government in exile. Nor was there any mention of the ability of that Consulate to issue an Afghan passport to the applicant.

Section 424A - the respondent's response 14 Counsel for the respondent, Ms Riley, submitted that s 424A(3)(a) of the Act excludes any requirement that the RRT give the applicant particulars of information which was 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". In this case, the information concerning the ability of the Afghan government in exile to issue passports to eligible persons in Australia was such excluded information. Ms Riley further submitted that if s 424A did apply, it only applied to events which occurred after the last communication between the applicant and the RRT. It was put that the information about the availability of a passport was not such an event. Ms Riley specifically contended that while the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, [2001] HCA 22, construed s 57 of the Act - a section which imposes obligations similar to s 424A on the delegate of the Minister - as to not exclude an obligation to seek the applicant's comments on the effect on his application of an event that occurred after the last communication between the applicant and the decision-maker (an approach that was confirmed by Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263), the information in the instant case was not such an event.

Section 424A - the cases 15 In Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 Allsop J (with whom Heerey J agreed) described the purpose of s 424A of the Act in the following way at [104]: "The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it…." (emphasis added) 16 In Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 Merkel J (with whom Ryan and Conti JJ agreed on this issue) said at [38] that "a purposive approach" should be taken to the construction of s 424A of the Act. Further at [41] his Honour said that: "… the construction the primary judge and I regard as correct gives effect to the beneficial purpose of s 424A of affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the RRT proposes to act, the significance of which the applicant may be unaware. It is consistent with that purpose to take a narrow, rather than a broad view of the exceptions in s 424A(3)." (emphasis added) 17 Merkel J's consideration of the approach to be taken to s 424A(3) of the Act was in the context of s 424A(3)(b). In Al Shamry statements made by the applicant during an airport interview were relied on by the RRT to make adverse findings about the applicant's credibility. His Honour rejected the contention that the interview material was given for the purposes of the applicant's application for a protection visa. At [18] Ryan and Conti JJ held that "application" in s 424A(3)(b) means "application for review by the Tribunal". So much seems clear from the subject matter of Division 4 of Part 7 of the Act which is the "conduct of (the) review". 18 Section 424A(3) of the Act was discussed by Ryan J in Applicant in V346 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1179. At [54] his Honour said that: "It was submitted on behalf of the applicant that the Tribunal was required by s 424A to acquaint him with the fact that it was a common practice for Muslim and Christian applicants to furnish a death certificate to establish the death of any person and that the applicant's failure to conform with that practice would be the reason, or part of the reason, for affirming the decision under review. Paragraph (c) of s 424A(1) was said to oblige the Tribunal to invite the applicant to comment on the information about the "common practice". 19 At [56] Ryan J said that: "A further ground for rejecting this contention of the applicant is afforded by the language of s 424A(3) which excludes from the reach of the Tribunal's obligation information that is not specifically about the applicant or another person. The information about the common practice to which the Tribunal referred was about applicants or other persons generally who seek to establish the death of a particular individual, ie "just about a class of person" of which the present applicant was a member." 20 In Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430, RD Nicholson J dealt with a submission that the RRT failed to comply, in that case, with s 424A of the Act by relying upon certain country information about Bangladesh. His Honour held at [49], that the country information was not specifically about the applicant or another person. He then said that: "The question is was it about a class of persons of which the applicant is a member, that is, Bangladeshi applicants for refugee status." At [50], His Honour said that the documents which were "in accordance with country information" and were "about refugee applicants from the country concerned." 21 In Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 857, Von Doussa J dealt with a submission that the RRT had failed to comply with s 424A by relying upon information contained in a newspaper article without notice to the applicant. At [24] to [26], his Honour said as follows: "I accept that the tribunal treated information in The Hindu article as relevant to the review, and took that information into account as part of the reason for affirming the decision under review. However, I consider that the information which was taken into account is information to which s 424A(1) does not apply because it is information of the kind which comes within s 424A(3)(a). It is correct, as the applicant's case emphasises, that The Hindu article refers to another person, namely Amar Singh. However it is not that aspect of the article which was relevant to the issue being considered by the tribunal or which formed part of the tribunal's reasoning. What was relevant was that the article identified an organisation known by a name which incorporated Kamagatu Maru as being part of a terrorist alliance. That was the information which the tribunal considered might be part of the reason. Insofar as the article also referred by name to another person, Amar Singh, it did so only by identifying that person as a member of the class of persons whose existence might be of relevance to the tribunal's decision. Accordingly the information fell squarely within s 424A(3). In Tharairasa v Minister for Immigration and Multicultural Affairs [2000] FCA 520 at [15] and [16] Carr J said:

"In my opinion, the language of s 424A is clear. Section 424A(1) is expressed to be subject to subsection (3). Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or other person and is just about a class of persons of which the applicant or other person is a member. I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter. The country information upon which the Tribunal relied was not specifically about the applicant or another person and it was just about a class of person of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna from other parts of Sri Lanka. In those circumstances, I do not consider that s 424A required the Tribunal to give particulars of this information to the applicant. Accordingly, I reject the applicant's first ground." In my opinion, the present case is of the same kind as that considered by Carr J. Here the relevant class of person of which Amar Singh was a member was the class comprising members of an organisation known by name which included Kamagata Maru." 22 In Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380, Gray J accepted a submission that the RRT failed to comply with s 424A of the Act. In Baig, the RRT relied on material from Agence France Presse without affording the applicant an opportunity to comment upon it. At [33] his Honour said that: "Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant's claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant's involvement in campaigning in a by-election." (emphasis added) 23 In Al Saqaf v Minister for Immigration & Multicultural Affairs [2002] FCA 6, Carr J held at [31] that information about the arrest of other members of the applicant's clan fell within s 424A(3)(a) of the Act. His Honour said that "(i)t was just information about a class of persons of which the applicant is a member."

Consideration - section 424A(3)(a) 24 I am mindful of the requirement emanating from Al Shamry that "a narrow view" should be taken in interpreting s 424A(3) of the Act. I am also mindful of the reminder contained in Paul that an applicant be informed of information "in the manner described by the section", which I take to mean as subject, inter alia, to the exceptions contained in s424A(3). Ultimately my task is to fairly construe s 424A(3)(a) within the context of Div 4 of Part 7 of the Act. My essential task is to find "the meaning of the legislation from the text"; see Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 at 307, [2002] HCA 5 at [70] per Kirby J. 25 The first task is to describe the "information" which, to employ the language of s 424A(3)(a), forms "the reason, or a part of the reason, for affirming the decision that is under review". In my view the "information" was that it was possible for Afghan nationals present in Australia to obtain an Afghan passport from the Consulate in Canberra of the Afghan government in exile. 26 The second task is to characterise the information so as to ascertain whether the information was "not specifically about the applicant or another person". Unlike the situation in Baig, the information in the instant case is not specifically about the applicant or specifically about another person but rather is about the ability of the Afghan government in exile to issue passports to eligible persons. 27 The third task is to consider whether the information "is just about a class of persons of which the applicant or another person is a member". In my view the information is just about such a class. The relevant class, in this case, is the class of Afghan nationals in Australia at the material time without Afghan passports.

Conclusion - section 424A 28 Having regard to the views expressed in the three preceding paragraphs, I am of the opinion that the "information" relevant to this proceeding is of a type to which s 424A of the Act does not apply as it meets the description provided by s 424A(3)(a) of the Act. Consequently the application will be dismissed and there is no need to examine whether s 474 of the Act operates to prevent judicial review of a decision of the RRT made in contravention of s 424A of the Act. That very point was left open by Gyles J in NAAX where his Honour said at [34]: "It should be clear that I am considering only that kind of procedural fairness (or lack thereof) which may be involved in the use of the kind of information in question here by the Tribunal. I am not intending to answer an abstract question as to whether a privative clause can exclude natural justice. The Act must be construed as it now stands, including s 474 and including the express prescriptive provisions governing the procedure of the Tribunal in Div 3, Div 4 and Div 5 of Pt 7. In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474. A good example would be if the facts in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 arose now. The process of construction would include application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. This was the approach in principle taken by Mansfield J in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167. The particular result in that case is of no consequence to the argument in this case." 29 I respectfully disagree with the view expressed by Heerey J in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397, and followed by Gyles J in NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539, that the Court should first consider the effect of s 474 of the Act on the application. In my view, when there are two or more issues before the Court, any one of which if determined against an applicant would dispose of the proceeding, it is open to the judge concerned to deal with one or both issues in the order she or he thinks fit in the exercise of her or his judicial function.I also consider that it may be appropriate to characterise the nature of the error made by the relevant tribunal in order to determine if that error is of a kind which is protected from review by s 474 of the Act. This view is, I believe, consistent with the approach taken by Gyles J in NAAX at [34].

Comment 30 It was noted earlier in these reasons for judgment that an alternative basis for submitting that s 424A of the Act did not apply in this case was that the "information" referred to in s424A should be confined to the information which arose after the last communication between the RRT and the applicant. Support for that submission was said to have arisen from the observation made by Gyles J in NAAX at [79] concerning the appropriate interpretation of Miah. Miah concerned the interpretation of s 57 of the Act - a very similar provision to s 424A of the Act. The High Court in Miah construed s 57 of the Act as not excluding an obligation on the delegate of the Minister to seek the applicant's comments on the effect of a change of government in the applicant's country of origin on his application. The change of government occurred after the last communication between the applicant and the decision-maker. 31 In NAAX at [79], Gyles J said that: "In my opinion, the decision in Miah does not travel beyond the facts of the case before the Court - a new event or circumstance which arose after the last communication between the delegate and the applicant." 32 It is by no means clear to me that Gyles J intended in NAAX to similarly limit the reach of s 424A of the Act in the way he appears to have interpreted the effect of s 57. If his Honour did intend to so limit s 424A of the Act I would respectfully disagree with his view. 33 The language of s 424A of the Act does not confine its operation to information received by the RRT only after the last communication between it and the applicant. The instant circumstances, if varied slightly (so that s 424A(3)(a) considerations were put to one side), illustrate the difficulty of a contrary approach. The material before the court does not disclose when the RRT became aware of the ability of Afghan nationals to access a Consulate in Canberra and obtain a passport. The critical issue (absent the application of s 424A(3)) is not when the material became known to the decision-maker in the context of all the communications between that body or person and the applicant. It is, rather, whether the material is not known to the applicant and, if used against the applicant's interests, could be decisive in defeating his or her claim. The position concerning the need for disclosure is greater "where the material concerns circumstances that have changed after the date of the application and is being used after considerable delay"; see McHugh J in Miah at [141], ALR 270.

Order 34 Having regard to the foregoing the application will be dismissed, with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 8 May 2002 Counsel for the Applicant: Mr J Gibson

Migration Act 1958(Cth)ss 424A, 474, 475A

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