VCAT of 2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 104 (28 June 2006)

Last Updated: 28 June 2006

FEDERAL COURT OF AUSTRALIA

VCAT of 2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 104

MIGRATION – review of decision not to grant protection visas – previous Full Court found Tribunal had failed to comply with s 424A but this did not constitute jurisdictional error – remitted from High Court on basis that any contravention of s 424A is jurisdictional error – whether Tribunal failed to comply with requirements of s 424A of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) ss 420, 424A, 425


SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 cited




















VCAT OF 2002 & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

VID3 OF 2006





EMMETT, STONE & BENNETT JJ
28 JUNE 2006
SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID3 OF 2006

ON REMITTAL FROM THE HIGH COURT

BETWEEN:	VCAT OF 2002 FIRST APPELLANT VCAU OF 2002 SECOND APPELLANT VCAV OF 2002 THIRD APPELLANT VCAW OF 2002 FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	EMMETT, STONE & BENNETT JJ
DATE OF ORDER:	28 JUNE 2006
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.	The appeal be dismissed.

2.	The first and second appellants pay the first respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID3 OF 2006

ON REMITTAL FROM THE HIGH COURT

BETWEEN:	VCAT OF 2002 FIRST APPELLANT VCAU OF 2002 SECOND APPELLANT VCAV OF 2002 THIRD APPELLANT VCAW OF 2002 FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	28 JUNE 2006
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1 The appellants are husband, wife and their two children. They claim to be citizens of India, having arrived in Australia on 12 February 2000. On 14 March 2000, they lodged applications for protection (class XA) visas under the Migration Act 1958 (Cth) (‘the Act’). On 7 September 2000, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant protection visas and on 26 September 2000, the appellants applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate’s decision. On 14 March 2002, the Tribunal affirmed the decision not to grant protection visas.

2 On 29 April 2002, the appellants commenced a proceeding in the Federal Court of Australia seeking judicial review of the Tribunal’s decision. An amended application was filed on 18 June 2002. On 6 December 2002, a judge of the Court dismissed the proceeding with costs.

3 By notice of appeal filed on 23 December 2003, the appellants appealed to the Full Court. On 27 June 2003, a Full Court (‘the First Full Court’) dismissed the appeal with costs. The appellants then applied for special leave to appeal to the High Court of Australia from the orders of the First Full Court. On 18 November 2005, the High Court ordered that special leave be granted to appeal from the orders of the First Full Court, that the appeal be treated as heard instanter, that the orders of the First Full Court be set aside and that the matter be remitted for redetermination. The High Court gave no reasons for making those orders, except in the course of argument on the hearing of the leave application. The remitted matter has now been heard by the present Full Court.

THE EARLIER PROCEEDINGS

4 By their amended application of 18 June 2002, the appellants raised two grounds as follows:

(1) There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
(2) There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

No particulars of the error of law were provided in the amended application. Further, there was no allegation that the procedural error amounted to jurisdictional error, notwithstanding the assertion that the procedural error constituted an absence of natural justice.

5 The notice of appeal filed on 23 December 2002 made no complaint about the decision of the primary judge as such. Rather, it reiterated grounds upon which the appellants sought judicial review of the Tribunal’s decision. The grounds, as presently relevant, were as follows:

A. There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
B. There was procedural error in the Tribunal’s decision constituting an absence of natural justice which was also a jurisdictional error.

There was a third ground, with which it is not necessary to deal.

6 The notice of appeal contained the following particulars of ground A:

(a) The decision of the Tribunal was affected by bias.
(b) There is a reasonable apprehension that the Tribunal was biased.

(c) The decision of the Tribunal was so unreasonable that no reasonable Tribunal could so have decided.
(d) The appellants rely on the particulars to ground B.

No other particulars were furnished.

7 The particulars of ground B, which were identical to the particulars of ground 2 of the amended application, were as follows:

(a) The Tribunal failed to provide a fair or just review within the meaning of s 420 or a fair or just hearing within the meaning of s 425 of the Act.
(b) The Tribunal found a number of factual submissions implausible or had difficulty accepting such submissions and had prejudged the facts and the appellants’ credibility prior to the hearing and approached the hearing with a closed mind.
(c) As a result, there were no findings of fact in favour of the appellants and the Tribunal found that the first appellant had fabricated his claims.
(d) The Tribunal had not read any of the submissions of the adviser of the appellants prior to the hearing.
(e) There was a lack of natural justice or a proper review or hearing.

8 On the hearing of the appeal by the First Full Court, the appellants sought to rely on three arguments as follows:

• The decision of the Tribunal was affected by apprehended bias,
• The Tribunal had denied the appellants natural justice by failing to give the first appellant an opportunity to comment on certain country information upon which it relied and
• The Tribunal acted in breach of s 424A of the Act.

9 The First Full Court recorded that, whilst apprehended bias was argued before the primary judge, it was argued on a basis that was different from the argument pursued before the First Full Court. The second and third arguments had not been raised before the primary judge at all. The First Full Court therefore considered that the appellants required leave to pursue the second and third arguments on appeal. The Minister opposed the grant of such leave. The First Full Court held that, in determining whether to grant leave to raise the new grounds on appeal, an important consideration was the appellants’ chances of success on those arguments on the appeal. The First Full Court therefore considered the merits of each of the three arguments.

10 In relation to apprehended bias, the First Full Court concluded that the transcript of the hearing before the Tribunal revealed that the first appellant was given sufficient open invitations to tell his story and did not support an argument that a fair minded observer would infer that the Tribunal approached the hearing with a mind made up. To the extent that the apprehended bias ground had been raised before the primary judge, the First Full Court agreed with his Honour’s conclusion that the ground should be rejected. That is the end of the matter so far as that argument is concerned.

11 In relation to the allegation of denial of the opportunity to comment on certain country information, the First Full Court concluded that the first appellant, through his legal adviser, was made aware of the information upon which the Tribunal based its conclusion and was alerted that that was a significant matter in the mind of the Tribunal. The first appellant was given a number of opportunities to respond to those doubts and did so. The appellants’ solicitor was also asked whether any further response should be sought in respect of any of the evidence given by the first appellant. The solicitor did not suggest that any further response should be sought. In those circumstances, the First Full Court concluded that there was no denial of natural justice in relation to the Tribunal’s reliance on certain country information.

12 Counsel for the appellants characterised the argument concerning s 424A as a ‘technical’ one. It will be necessary to say something more about that argument, because that is the basis upon which the High Court granted special leave and upheld the appeal, albeit without giving detailed reasons for doing so.

13 Following remitter of the proceeding by the High Court, an amended notice of appeal was filed on 22 February 2006. The amended notice of appeal raises only the following grounds:

(1) The Tribunal’s decision was affected by jurisdictional error because the decision was made in breach of s 424A of the Act, in that the Tribunal failed to give the appellants the opportunity to comment in writing on a police report of a traffic accident that had not been provided to the Tribunal by the appellants for the purposes of the review.
(2) The Tribunal’s decision was affected by jurisdictional error due to breach of the rules of procedural fairness, in that the Tribunal failed to give the appellants the opportunity of commenting on country information utilised by the Tribunal, and did not draw to the appellants’ attention the substance, relevance and importance of such information.

14 On the hearing of the remitter, the Minister did not oppose the filing of the amended notice of appeal. The Minister also consented to the appeal being dealt with on the basis that the grounds of appeal were grounds raised by the initiating application to the Federal Court of Australia.

DENIAL OF PROCEDURAL FAIRNESS

15 As will appear below, the reason for the grant of special leave by the High Court was a change in the law following a decision of the High Court concerning the effect of s 424A. No mention was made by the High Court of the second proposed ground of appeal, relating to denial of procedural fairness in relation to country information. There was nothing said in the argument before the High Court on the hearing of the special leave application to suggest that the decision of the First Full Court in relation to this ground contributed in any way to the decision of the High Court to grant leave and uphold the appeal. It was not suggested on the hearing before the present Full Court that the law had developed in any way concerning that question. We do not see any reason for reaching a different conclusion from the conclusion reached by the First Full Court on this question. We adopt the reasoning and conclusion of the First Full Court on the question. The appeal should not succeed on this question.

ALLEGED CONTRAVENTION OF S 424A

16 Section 424A(1) of the Act relevantly provides that the Tribunal must:

• give to an applicant for review of a decision of the Minister, 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,
• ensure, as far as is reasonably practical, that the applicant for review understands why the information is relevant to the review and
• invite the applicant to comment on the information.

However, under s 424A(3), that requirement does not apply to information that the applicant gave for the purpose of the application to the Tribunal for review of the delegate’s decision.

17 In order to deal with the ground relating to s 424A, it is necessary to say something first about the decision of the Tribunal and then about the development of jurisprudence concerning s 424A.

THE TRIBUNAL’S DECISION

18 A statutory declaration, which was made by the first appellant on 10 March 2000, was submitted with the appellants’ applications for protection visas. After referring to an allegation that Sikh separatists staying at a hotel conducted by the family of the first appellant had been the subject of a police raid, the first appellant said:

‘On 25^th April 1997, while my brother was on his way home from the hotel on his scooter a truck hired by the same two separatists who had escaped the raid, hit him from the front. They did this for revenge because they believed that my brother and I had arranged the raid. My brother was left for dead...’

19 On 13 April 2000, the solicitors for the appellants wrote to the Minister enclosing a further statutory declaration by the first appellant and a copy of a police report relating to the accident involving the first appellant’s brother. The further statutory declaration, which was dated 12 April 2000, relevantly said:

‘1. ...I have obtained a police report by my brother, Surjit Singh, in relation to the incident in which my younger brother, Jaswant Singh, was deliberately hit by a truck driven by separatists as described in paragraph 13 of my statutory declaration dated 10 March 2000. The translation of the police report incorrectly states that the perpetrator was an unknown jeep driver. This mistake happened because my brother was not initially aware of what vehicle had hit Jaswant and was told by the other person who was hit, Pal Singh, that it was a jeep. I believe Pal Singh made this mistake because he was initially unconscious and when he regained consciousness he saw the jeep in which he was being driven to the hospital and believed it had been the vehicle that hit him. As he was sitting on the back of the scooter and it was dark he did not see that it was a truck that hit Jaswant and him. Jaswant himself was so seriously injured... that he was, and still is, unable to communicate what happened.

2. In addition, the police report refers to "Jaspal" Singh sustaining head injuries. However, this is clearly a reference to my brother Jaswant who sustained head injuries on 24 April 1997...

3. My father learned later from two men who had previously worked at our hotel that my brother, Jaswant had been hit by terrorists driving a truck. They knew this as they had been on the truck when it happened. They were sleeping in the cleaners’ cabin of the truck when it was stolen by two terrorists who did not know they were there... The men who used to work for us told my father that they saw that the men on truck were terrorists as they carried guns. They also told my father that after the "accident" the terrorists had discovered the men on the truck and told them they were terrorists and threatened to kill them if they told anyone what had happened.’

20 The police report, enclosed with the letter of 13 April 2000, relevantly said as follows:

‘5. Name and residential add of the accused: one unknown jeep driver whose name and address not known.

6. Brief description of the offence...: ...on the place, date and time mentioned herein above, the accused mentioned at [5]. by driving his Jeep in a rash and negligent manner and dashed with the brother of the present complainant and caused injuries to him.’

The police report also contained a statement by Surjit Singh. Relevantly, the statement said:

‘Our worker Paalsingh is under treatment in Kosamba Hospital. He is in know about how the accident has occurred. But it is known that the dash was given by one Jeep driver.’

21 On 4 March 2002, the solicitors for the appellants wrote to the Tribunal in support of the Tribunal’s review of the decision of the delegate. The letter of 4 March 2002 relevantly said as follows:

‘On 25^th April 1997, while the applicant’s brother, Jaswant Singh was on his way home from the hotel on his scooter, a truck hired by the same two separatists who had escaped the raid, hit him from the front... The applicant’s brother was left for dead... In his statutory declaration dated the 12^th March 2000 [sic; scilicet 12 April 2000] the applicant explains the inconsistencies in the police report with his statement dated the 10 March 2000. Essentially, he confirms that Jaswant Singh was hit deliberately by a truck driven by separatists.’

It appears that neither the statutory declaration of 12 April 2000, nor the police report, was enclosed with the letter of 4 March 2002.

22 In the course of the hearing before the Tribunal, the police report was mentioned by the Tribunal in the following terms:

‘I am quite prepared to accept that your brother had a serious accident and has suffered serious injuries as a result of the accident. There isn’t anything in any of the documents you’ve given me which links your brother’s road accident with Sikh terrorists.
...
Mr Singh I don’t doubt that your brother has had a tragic accident and was indeed hit by a truck or a jeep or whatever. What I’m saying is that there’s nothing in the material you have given me, the documents you’ve provided, which links his accident to a deliberate attack by Sikh terrorists.
...
I am simply pointing out to you at this stage that, although I accept that your brother had an accident and that he was seriously injured, you haven’t provided me – none of the documents you’ve given me link that to this accident having been caused by Sikh terrorists.’

23 In its Reasons, the Tribunal said:

‘On 13 April 2000, the applicant submitted a statutory declaration dated 12 April 2000. The applicant referred to a police report by his brother Surjit Singh, concerning the incident in which his brother, Jaswant, had been hit by a truck...

The applicant submitted a copy of the police report made by his brother, Surjit, concerning Jaswant’s accident. The report referred to the unknown driver of the vehicle which hit Jaswant.

On 4 March 2002, the applicant’s adviser submitted a summary of the applicant’s claim...

The applicant’s adviser was present throughout...
...
The Tribunal informed the applicant that it accepted that his brother had been seriously injured in the traffic accident in April 1997, but there was nothing in the documents which had been submitted by the applicant which linked this accident to Sikh terrorists. In his report to the police, the applicant’s brother, Surjit, had stated that the people responsible were unknown. The applicant claimed that some time later, two men who had been sleeping in the truck had informed his brother that the men driving the truck had been Sikh terrorists. The Tribunal asked why Surjit had not gone back to the police and reported this information to them. The applicant responded that he had so, but the police had not written it in the report. After 3-4 months the police had not found who was responsible, and they had closed the file.’

The Tribunal’s Reasons went on to say:

‘As discussed with the applicant at the hearing, the Tribunal accepts that his brother was injured in a traffic accident, but does not accept that Sikh terrorists were responsible. The police report states that an unknown person caused the accident, and the Tribunal is not convinced by the applicant’s subsequent claim that two former employees of the hotel witnessed the terrorists driving the truck. If this were the case, the applicant’s brother would presumably have reported this new information to the police and could have obtained another report confirming that he had done so. The Tribunal does not accept what it considers to be a weak explanation by the applicant that his brother did report this new information to the police but they chose not to write it down.’

24 The appellants contend that the fact that the police report stated that the driver of the vehicle that injured the first appellant’s brother was unknown was information that formed part of the reasons for the Tribunal’s decision. The Minister disputes that assertion but says that, in any event, that information was furnished to the Tribunal by the solicitors for the appellants by their letter of 4 March 2002.

THE SECTION 424A QUESTION

25 In its reasons, the First Full Court resolved the ground based on s 424A on the assumption that the Tribunal failed to invite the first appellant, in writing, to comment on the absence of reference to the separatists in the police report and that the Tribunal thereby failed to comply with s 424A(1). The First Full Court observed that the purpose of s 424A is to ensure that an applicant has the chance to respond to certain information on which the Tribunal intends to rely. The First Full Court considered that an examination of the facts showed that the first appellant was given such an opportunity, albeit on the assumption made by the First Full Court that the opportunity did not comply with the requirements of s 424A(1).

26 After citing the transcript dealing with the discussion of the police report at the Tribunal hearing, the First Full Court concluded that the appellants were not disadvantaged in relation to the contents of the police report. Their Honours referred to the reliance by the appellants’ solicitors on the police report in the written submissions filed in the Tribunal and observed that the Tribunal raised the issue of the reference to the unknown driver directly with the first appellant on two occasions. On each of those occasions, the Tribunal indicated concern that the police report failed to state that one of the terrorists was the driver of the truck.

27 The First Full Court considered that the first appellant had several opportunities to address the way in which the police report related to his allegation that the separatists were responsible for his brother’s accident. At the conclusion of the evidence, the Tribunal asked the appellants’ solicitor whether any further clarification was required and the solicitor referred to the very issue of the police report. As a result, the Tribunal then raised the issue again with the first appellant. In those circumstances, notwithstanding the assumed contravention of s 424A(1), the First Full Court exercised its discretion to refuse leave to the appellants to rely on that ground. Their Honours did not consider that the failure to comply with s 424A constituted jurisdictional error.

28 After the decision of the First Full Court, but before the hearing of the application for special leave to appeal to the High Court, the High Court gave its decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162. The High Court concluded, by majority, that any failure to comply with s 424A constituted jurisdictional error. In the light of the High Court’s reasons for that decision, the Minister accepted before the High Court on the hearing of the special leave application from the first Full Court, that the first Full Court had erred. In the light of that concession, the High Court treated the appeal as being heard instanter, set aside the orders of 27 June 2003 and remitted the matter for redetermination.

29 The Minister contended before the High Court that special leave to appeal should nevertheless be refused, because there was in fact no breach of s 424A. However, the High Court considered that it was appropriate for that question to be decided by the Federal Court rather than by the High Court on a special leave application. Thus, while no reasons were given by the High Court for upholding the appeal, it must be assumed that the appeal was upheld on the ground that the First Full Court erroneously considered that a contravention of s 424A(1) did not constitute jurisdictional error in circumstances where, under the general law, there was no denial of procedural fairness. The appellants did not contend before the present Full Court that there had been a denial of procedural fairness under the general law.

RESOLUTION OF THE S 424A QUESTION

30 The fact that the police report stated that the driver of the other vehicle was unknown was not information that formed part of the reasons for the Tribunal’s decision. In its Reasons the Tribunal said:

‘As the Tribunal does not accept that Sikh militants stayed at the applicant’s hotel and that two of them were arrested by the police, it does not accept that two other militants threatened the applicant’s brother and injured him in a traffic accident as an act of revenge...’

Thus, it is not anything in the police report that formed part of the Tribunal’s reasons: rather, it was the rejection by the Tribunal of the assertion that Sikh militants stayed at the first appellant’s hotel. That was the reason for rejecting the assertion that Sikh militants had injured the first appellant’s brother in a traffic accident. It follows that there was no failure to comply with s 424A of the Act.

31 In any event, the information identified above was given to the Tribunal by the appellants’ solicitors. Their letter to the Tribunal of 4 March 2002 makes no sense whatsoever unless the statutory declaration of 12 April 2000 is read in conjunction with it. That is clearly what was intended by the solicitors in writing the letter. That is to say, the solicitors undoubtedly assumed that the statutory declaration of 12 April 2000 was before the Tribunal, since they invited the Tribunal to refer to it. Their assumption was correct in that it was part of the file forwarded to the Tribunal by the Secretary of the Department.

32 The statutory declaration of 12 April 2000 clearly discloses the fact that the police report states that the first appellant’s brother was injured by a jeep driven by an unknown driver. That is the information in question, not the police report as such. Accordingly, even if that information was part of the reason for the Tribunal’s decision, it must be taken to have been given to the Tribunal by the appellants. Again, it would follow that there was no failure to comply with s 424A in the respect asserted by the appellants.

CONCLUSION

33 The appeal must be dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Stone & Bennett.

Associate:

Dated: 28 June 2006

Counsel for the Applicant:	Mr B. Kissane
Solicitor for the Applicant:	Clothier Anderson & Associates
Counsel for the Respondent:	Dr S. Donoghue
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 May 2006
Date of Judgment:	28 June 2006