VAAM v Minister for Immigration and Multicultural Affairs

INTRODUCTION 1 This is an appeal from a decision of Merkel J given on 3 December 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which, on its face, says that it was made on 29 January 2001 but "handed down" on 20 February 2001. The Tribunal affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The background to this matter is described in the reasons for judgment of Merkel J. It is not necessary to set it out again. It is sufficient to note that, in his application for a protection visa, the appellant, a Sikh and a citizen of India, claimed that he feared persecution if returned to that country by reason of his religion, his race and his political affiliations, all of which stemmed from being a Sikh. One of his claims was that, due to his past experiences with the police in India, he has been registered in "the Police Book". He claimed that the danger to a Sikh, so registered, was a continuing one, such that he would not be safe anywhere in India. 3 The Tribunal found that the appellant was not a credible witness and that most of his claims were not credible. It decided that it was not satisfied that the appellant had a well-founded fear of persecution due to political opinion, religion, nationality or for any other Convention reason. 4 As the learned primary judge noted, it is apparent from the Tribunal's reasons that one basis for its disbelief of the appellant was that his claims were "vague and not sufficiently detailed to be believable". This finding was based upon what the Tribunal described as the lack of specificity and detail in the appellant's statement of his claims in his original written application for a protection visa. 5 When the matter first came on for hearing before the primary judge, the only ground of review relied upon by the appellant was that the Tribunal had misunderstood its obligations as including an obligation for an applicant for a protection visa to "make … specific claims under the Refugees Convention" in the written application. His Honour held that this ground of review had not been made out. He found that the Tribunal, in discharging its function as the arbiter of fact, appeared to view the absence of what it regarded as important detail in the original application as a reason, amongst others, for treating the appellant's claim as implausible. The appellant's challenge to the Tribunal's adverse credibility findings was, so the primary judge held, a claim that the Tribunal gave undue weight to the lack of specificity and detail in the appellant's original statement of claim. His Honour found that that was a question of fact rather than of law. 6 In grounds 2(b), (c) and (d) of the notice of appeal the appellant contends that the primary judge erred in law in reaching that conclusion. The grounds assert error on the Tribunal's part, in interpreting and applying the law, error of law in having regard to an irrelevant matter and error of law in failing properly or at all to have regard to a relevant matter being what was said to be the applicant's compliance with the requirement to provide details of his claims. The grounds also assert error of law by the primary judge in not making findings to that effect. 7 The appellant submitted that the Tribunal was not entitled to draw the particular adverse inferences which it had drawn in this matter if the appellant had, when completing his application for a Protection Visa, complied with the Act and the Migration Regulations. The appellant also submitted, additionally or in the alternative, that the Tribunal had erred in not having proper regard to the level of detail required by the Act and Regulations. These errors, so counsel for the appellant submitted, amounted to error of law or jurisdictional error or both. 8 In our view, neither the Tribunal nor the primary judge made any of the errors asserted by the appellant. For the reasons given by his Honour in paragraphs [7] to [8] of his reasons, we consider that these grounds have not been made out. 9 During the course of the initial hearing before the primary judge, an issue arose about whether the Tribunal's reliance, in its reasons, on information contained in the appellant's original application form revealed that the Tribunal had acted in breach of s 424A of the Act in that the Tribunal may have failed to provide particulars of that information to the appellant and to request his response to it in the manner required by that section. The appellant was granted leave to amend his application to add an appropriate ground of review. He did so and the hearing of the matter was adjourned to enable the parties to make further submissions in relation to the operation and applicability of s 424A. 10 Section 424A, in its form at the relevant time, provided: "(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 invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (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 appellant's complaint at first instance, and before us on appeal, was that the Tribunal was in breach of s 424A by failing properly or at all to give him particulars of information in relation to the degree of detail of the appellant's initial claims for a protection visa and the view which the Tribunal took of that degree of detail. 12 Counsel for the appellant submitted that it was manifest that the Tribunal formed the view that information previously given by the appellant to the respondent's Department did have an adverse bearing upon the application for review. Accordingly, so it was submitted, the Tribunal was obliged to follow the procedures of s 424A, but had not done so. Thus an important element of natural justice, codified in s 424A, was not provided to the appellant.