VJAF v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2005-08-30|Before: North J, Black CJ, Bennett JJ

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from orders of the Federal Magistrates Court, made on 12 November 2004 (with reasons given on 24 November 2004), dismissing the appellant's application for review of a decision of the Refugee Review Tribunal (the Tribunal), made on 29 August 2002 (with reasons delivered on 20 September 2002). By that decision the Tribunal affirmed a decision of a delegate of the Minister on 31 July 2000 to refuse the grant of a protection visa to the appellant.

The Procedural Background 2 The appellant, who is a national of Cambodia, entered Australia with some members of his family on 18 April 2000. On 23 May 2000, he made an application for protection visas for himself and those members of his family who had arrived with him in Australia. The appellant claimed that he had suffered persecution and that this was directly related to his membership of and high profile within the Sam Rainsy Party (SRP). 3 It is regrettable that more than five years have passed since the date of that initial application. The appellant applied to the Tribunal for review of the delegate's decision on 8 August 2000. Just over two years later, the Tribunal affirmed the delegate's decision. The Tribunal first heard the matter on 8 February 2001, six months after the application for review was submitted. That hearing resumed on 2 March 2001 and was concluded on that day. There followed six months of correspondence (9 March 2001 to 22 November 2001) between the Tribunal and the appellant's representatives concerning the forensic analysis of newspaper reports submitted by the appellant. More than seven months after that correspondence concluded, the appellant's representatives wrote to the Tribunal (on 10 July 2002) to obtain an indication about when the Tribunal's decision could be expected. That decision was made on 29 August 2002, with reasons given on 20 September 2002. 4 On 14 October 2002, the appellant promptly made an application to this Court, pursuant to s 39B of the Judiciary Act 1903 (Cth), for relief in relation to that decision. That application was amended on 5 December 2002 and again on 11 March 2003. On 11 June 2003, by order of North J, the proceeding was transferred to the Federal Magistrates Court. On 4 February 2004, more than seven months after the transfer of the proceeding, the Federal Magistrates Court heard the application. A further nine months elapsed before judgment was delivered and orders were made dismissing the application. The appellant, again promptly, filed his Notice of Appeal on 3 December 2004.

The Federal Magistrate'S Decision 5 Before the Federal Magistrate, the appellant challenged the Tribunal's decision in two presently relevant respects. The first was its failure to take oral evidence from the editor of a Cambodian newspaper concerning the authenticity of two newspaper articles relied upon by the appellant, which failure was said to constitute a denial of procedural fairness. The second was its failure to give the appellant notice of, and the opportunity to respond to, country information that it took into account after the hearings. This failure was said to give rise to both a denial of procedural fairness and a breach of the Tribunal's statutory obligations pursuant to s 424A(1) of the Migration Act 1958 (Cth) (the Act). In both respects, it was claimed that there was jurisdictional error on the part of the Tribunal. Both grounds having been rejected by the Federal Magistrate, the appellant now asserts error on the part of the Federal Magistrate in doing so. 6 The Federal Magistrate first addressed the appellant's contentions about the Tribunal's failure to call oral evidence from the newspaper editor. He concluded that there was no denial of procedural fairness because there was no statutory obligation upon the Tribunal to call this evidence and "it was for the Tribunal to decide whether oral evidence from the editor would assist": VJAF v Minister for Immigration [2004] FMCA 794 at [36]. Moreover, he reasoned that "[t]he point at which the Tribunal was required to give the applicant natural justice … was when it was deciding whether or not it would hear oral evidence from the editor" and the appellant was given the opportunity to make submissions at this point. On the second ground, concerning the Tribunal's use of country information, the Federal Magistrate held that the Tribunal was not obliged to give the appellant particulars of this information pursuant to s 424A(1) because the information fell within the statutory exception provided in s 424A(3)(a) as "the information is not about the applicant in particular [and] it is just about a class of persons of which the applicant is a member" (at [48]). Moreover, "[s]ince the Tribunal has complied with the required procedure, there is no breach of natural justice" (at [49]).

The TRibunal Was Subject to Statutory and General Law Obligations of Procedural Fairness 7 It should first be noted that s 422B of the Act does not apply to this proceeding. That section provides: Exhaustive statement of natural justice hearing rule (1) 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. That section was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and only applies in relation to applications to the Tribunal for review made on or after 4 July 2003. In the present case, the application for review was made on 8 August 2000 and so no question of its operation arises. This means that, in relation to this proceeding, the Tribunal continued to owe obligations of procedural fairness after the statutory provisions were spent: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 194 [131] (Gummow J) (SAAP).

The First Ground: The Tribunal's Use of Country INformation 8 It is convenient to consider first the obligations attaching to the Tribunal's use of country information pursuant to its statutory obligations under s 424A(1) of the Act and the general law of procedural fairness. 9 In its reasons, the Tribunal noted that it had discussed recent country information with the appellant at the hearing, and that information indicated that SRP members, including high profile members, are not persecuted in Cambodia. The Tribunal specifically referred to a report of the US State Department of 2000 and a report of the Department of Foreign Affairs and Trade of 2000. 10 The Tribunal then stated that it had "checked" reports by human rights bodies and foreign governments that had become available since the hearing "to ensure that the assessments discussed with the applicant in March 2001 are still valid." After outlining the contents of those reports, which reported killings, threats and harassments of SRP activists, the Tribunal stated that it had "considered whether these recent reports indicate that the situation for SRP members may have deteriorated since the applicant's departure from Cambodia" and concluded: [i]t appears to the Tribunal that the situation in Phnom Penh for SRP members such as the applicant remained much as it was described in the information discussed with the applicant at the hearing. The practical need for the Tribunal to "update" the country information reports was the consequence of the significant delay between the date of hearing (2 March 2001) and the date of decision (29 August 2002). 11 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. 12 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 facie engaged 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." 13 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." 14 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 about those persons, and it plainly was not. 15 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 v Minister 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. 16 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). 17 It remains, then, to consider whether the Tribunal's failure to put to the appellant, and to give him the opportunity to comment upon, the country information reports taken into account by the Tribunal after the conclusion of the hearing should have been held to constitute a denial of procedural fairness. The Federal Magistrate was of the opinion that if the Tribunal had satisfied its statutory obligations relating to the use of the country information then no question of a denial of procedural fairness at common law could arise. 18 The appellant submitted that the Tribunal's failure to put this updated information to him constituted a failure to act in accordance with the principle stated by Brennan J (as he then was) in Kioa v West (1985) 159 CLR 550 at 629: "[i]n the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." The credibility, relevance and significance of the country information are not at issue in this proceeding. 19 Whilst there may be occasions on which the Tribunal remains subject to general law obligations of procedural fairness despite having satisfied its statutory obligations, in the present case, no denial of procedural fairness could have been established. The Tribunal had already "discussed" recent country information that was adverse to the appellant's claim with him at the hearing. The Tribunal referred to the updated information to ensure the assessments discussed with the appellant at the hearing were still valid. The Tribunal specifically concluded that, having considered the updated information, the situation for SRP members such as the appellant remained much as it was described in the information discussed with the appellant at the hearing. That is, there was no additional information adverse to the appellant contained in those reports. The adverse nature of the information had already been discussed with the appellant at the hearing. In those circumstances, it would not have been open to the Federal Magistrate to find that the Tribunal failed to afford the appellant procedural fairness through its failure to put the updated country information reports to the appellant.

The Second Ground: The Tribunal's Failure to Call Oral Evidence from the NEwspaper Editor 20 The final aspect of the appeal related to the Tribunal's failure to call oral evidence from the editor of a Cambodian newspaper - The Voice of Khmer Youth - about the authenticity of a disputed article from that newspaper. The appellant submitted the article in support of his claim that in April 1999 he was kidnapped by people in military uniform, beaten and then taken to a government prison where he was interrogated in the presence of Major General Chea Dara who had, a day earlier, told the appellant to cease criticising high figures in the People's Party. Following the hearing, there was extensive correspondence between the Tribunal and the appellant's representative concerning the authenticity of the newspaper articles (above [3]). 21 The appellant submitted that the Tribunal's failure to call oral evidence from the editor constituted a denial of procedural fairness, giving rise to jurisdictional error. A similar submission was made to the Federal Magistrate, who rejected it on the basis that the Tribunal's obligation to afford procedural fairness arose at an earlier point in time when the Tribunal was considering whether or not to call the evidence and the appellant was afforded procedural fairness at that time. 22 To make good his submission, the appellant would need to demonstrate that the requirements of procedural fairness, in their application to the facts of this case, effectively imposed a duty upon the Tribunal to take oral evidence from the editor. Whilst there may be cases in which procedural fairness requires that oral evidence be placed before the Tribunal, that will depend upon a range of circumstances including the statutory context, the issue upon which oral evidence is said to be required and the wider statutory and factual context in which the issue has arisen. 23 The Act provides for the procedure to be followed by the Tribunal in the conduct of its review. The Tribunal is empowered to obtain oral evidence in this situation (see ss 424(1), 427(1), 429A) "but is not required" to do so (see s 426(3)). Moreover, in SAAP, Hayne J, having considered the statutory review scheme, observed that the review process undertaken by the Tribunal is a "predominantly documentary process" (at [192]). 24 In the present case, we see no foundation for a duty on the part of the Tribunal to take oral evidence from the editor. The issue upon which the appellant asked for oral evidence to be given concerned the authenticity of disputed articles from a newspaper, in the broader context of the credibility of his claim to have been kidnapped in April 1999. In circumstances in which the Tribunal had raised its concerns as to the authenticity of the newspaper report on three separate occasions, had provided copies of the three document analysis reports it had received to the appellant's representatives, had received two written statements from the editor of the newspaper, had received two document analysis reports from the appellant's representatives, had identified inconsistencies in the appellant's statements with the appellant at the hearing, had raised its concern that the "kidnap" was not mentioned in any documents or reports promulgated by the SRP and had suggested to the appellant that aspects of his claim were implausible, it cannot be accepted that the Tribunal's refusal to call oral evidence from the editor constituted a denial of procedural fairness.

Conclusion 25 For these reasons, the appeal must be dismissed. The appellant must pay the respondent's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Sundberg and Justice Bennett.

Associate: Dated: 30 August 2005 Counsel for the Applicant: Mr Anthony Krohn

Solicitor for the Applicant: Clothier Anderson & Associates

Migration Legislation Amendment (Procedural Fairness) Act 2002(Cth)

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