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Cases

MIGRATION - application for a protection visa - s 424A of the Migration Act 1958 (Cth) - whether Refugee Review Tribunal failed to provide applicant with particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review - whether the relevant information was "not specifically about the applicant or another person" - whether information was "just about a class of persons of which the applicant or other person is a member" - whether exception in s 424A(3)(a) engaged

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 (15 August 2003)
Last Updated: 15 August 2003


FEDERAL COURT OF AUSTRALIA
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186


MIGRATION - application for a protection visa - s 424A of the Migration Act 1958 (Cth) - whether Refugee Review Tribunal failed to provide applicant with particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review - whether the relevant information was "not specifically about the applicant or another person" - whether information was "just about a class of persons of which the applicant or other person is a member" - whether exception in s 424A(3)(a) engaged

Migration Act 1958 (Cth), s 36, s 424A

Acts Interpretation Act 1901 (Cth), s 15AA

Re Duke of Wellington [1947] Ch 506 referred to

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 referred to

Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443 referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 applied

Kioa v West (1985) 159 CLR 550 considered

Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 referred to

Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 [upheld on appeal at [2001] FCA 570] referred to

Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 referred to

Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 referred to

W104/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 771 referred to

Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 referred to

Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 applied

Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 referred to

Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 referred to

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 363 referred to

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 distinguished

VAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 573 considered

VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 followed

NACL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 387 referred to

NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 381 referred to

VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 referred to

APPLICANT VHAJ & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 608 of 2002

MOORE, KENNY & DOWNES JJ

MELBOURNE

15 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 608 OF 2002





On appeal from a single Judge of the Federal Court of Australia

BETWEEN:
APPLICANT VHAJ

FIRST APPELLANT

APPLICANT VHAK

SECOND APPELLANT

APPLICANT VHAL

THIRD APPELLANT

APPLICANT VHAN

FOURTH APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
MOORE, KENNY & DOWNES JJ


DATE OF ORDER:
15 AUGUST 2003


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the 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
V 608 OF 2002





On appeal from a single Judge of the Federal Court of Australia

BETWEEN:
APPLICANT VHAJ

FIRST APPELLANT

APPLICANT VHAK

SECOND APPELLANT

APPLICANT VHAL

THIRD APPELLANT

APPLICANT VHAN

FOURTH APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
MOORE, KENNY AND DOWNES JJ


DATE:
15 AUGUST 2003


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
MOORE J:

Introduction

1 This is an appeal from a judgment of a judge of this Court of 26 August 2002. The learned primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") to refuse to grant the appellants Subclass 866 Protection (Class XA) visas.

Background

2 The following emerges from the reasons for decision of the Tribunal. The appellants are husband, wife and two children. I will refer to the husband as the appellant, as his position is central to the appeal. The appellant and his wife are citizens of Sri Lanka who arrived in Australia on 12 March 2000 on visitors' visas. On 11 April 2000 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 30 May 2000, a delegate of the Minister refused to grant the visas and on 19 June 2000 the applicants applied for review of that decision.

3 The appellant claimed he lived and worked in Qatar from 1981 to 1986. On 25 July 1986 he entered Italy on an employment permit where he remained until March 2000 by periodically renewing his working permits. He returned to Sri Lanka three times and in 1992, during one of those visits, he married. One of his brothers lived in Jaffna and was involved with Tamil militants who were not sympathetic to the Liberation Tigers of Tamil Elam ("LTTE"). The brother was kidnapped by the LTTE around the time of the appellant's marriage. His other siblings lived in either Switzerland or the United Kingdom where they had sought asylum.

4 The appellant claimed that he belonged to a Tamil drama group between 1988 and 1993 when living in Italy, which used to put on plays once or twice a year. In February 1992, he was invited by a Tamil social club to take part in a variety program which included music recitals and drama highlighting the plight of the Tamils. This program was not supportive of the cause and methods of the LTTE. He claimed that the fact that he participated in this program angered the LTTE who since then have confronted and harassed him. The next evening after his performance, four or five people came to his house and warned him to stop criticising the LTTE. A member of the group asked him by telephone to act in another play which was supportive of the LTTE. He refused, but they kept pressuring him to do so. They began ringing and harassing the appellant's employer with the result that the employer decided to terminate the appellant's employment.

5 The appellant's wife claimed she lived in Jaffna all her life until her marriage and subsequent departure to Italy. She had been involved with the LTTE, by providing assistance to the movement. Her brother Elaruban was also a militant member of the LTTE. She claimed that in her town there was another girl with the same name who was a fully fledged member of the LTTE. The appellant's wife claimed that the Indian Peace Keeping forces ("IPKF") had information about the other girl who shared her name and targeted the area, mistakenly harassing her (the appellant's wife) and her mother.

6 It should be noted, though it was not adverted to by the Tribunal in its reasons, that in his application for a protection visa, the appellant indicated that he was seeking protection in Australia so that he did not have to go back to Sri Lanka. Particulars were then provided in the application of what he believed what happened to him if he returned to Sri Lanka (and also Italy). He indicated he would be harmed in Sri Lanka because of his wife's direct activities with the LTTE. The appellant's wife similarly indicated in her application that she was seeking protection in Australia so she did not have to go back to Sri Lanka. She also identified the possibility of harm arising from her association with the LTTE if the family returned to Sri Lanka.

The Tribunal's Decision

7 The Tribunal noted the appellants' claims related essentially to a fear of persecution in a third country, Italy. They were governed by subs (3), (4) and (5) of s 36 of the Act. Those subsections provide:

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5) Also, if the non-citizen has a well-founded fear that:

(a) a country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country.

8 The Tribunal found that the appellants had a current Italian working permit, and had applied for a permanent residence permit in May 1998. On the question of the appellants' right to re-enter Italy it said:

The applicants have a right to return to Italy. Their temporary residence permit (Permesso di Soggiorno) expires on 11 November 2000. They have also applied for a permanent residence permit (Carta di Soggiorno) in May 1998 and although they have not received a decision on their application the Tribunal notes that Italian Law No. 40 of 6 March 1998 made provisions for such an application and that no adverse inference can be drawn from the non-receipt of the decision up to this point since this law was an attempt to regularise the status of hundreds of thousands of foreigners in Italy, as was reported in the Italian press at the time.
The applicant produced, at the hearing, an unsigned letter dated 18 July 2000 purporting to be from Rosaria LaPietra, his employer since February 1992. On 2 August the Tribunal received a copy of the same letter, this time signed by the person making the statement and dated 29 July 2000. The Tribunal has a number of concerns regarding the probative value of this letter. First of all, on the applicant's own account, he himself asked for it; the letter in both its versions is dated well after the Tribunal's letter inviting him to hearing had been sent. Secondly, it mimics the applicant's claims in relation to his situation in Italy and adds that his pursuers wanted money from him, which has not been claimed by the applicant at any stage of the process. The above taken together, including the fact that the letter was unsigned initially and there was no explanation as to the reason for this, leads the Tribunal to conclude that it has been contrived for the express purpose of advancing the applicant's claims. Therefore the Tribunal gives no weight to it.

Even if the applicant had been sacked from his work or was no longer wanted by that employer, this does not vitiate the right to enter and reside in Italy. Art 4 of law No. 40 of 6 March 1998 states inter alia that holders of a current permit need only notify the border control of their intention to re-enter.

The Tribunal finds that the above establishes that the applicant has a right to re-enter and reside in Italy."

[Emphasis added]

9 The Tribunal then considered whether the appellants have a well founded fear of persecution (for a Convention reason) in Italy. While it made some statements consistent with having reservations about the appellant's credibility, it did not say it rejected the appellant's account because it did not believe any of it. Indeed it accepted at least some of what the appellant had said about his experiences in Italy. Ultimately, however, the Tribunal rejected the appellant's claim that either he or his wife would be subjected to harm of the type and severity which might constitute persecution should they return to Italy. The Tribunal concluded that given the fact that the appellants had a right to reside in Italy and that their fear of persecution in Italy was not well-founded, Australia did not have protection obligations in relation to the appellants. It concluded the appellants did not satisfy the criterion set out in subs 36(2) of the Act for a protection visa. It noted that as no specific claims were made by or on behalf of the appellant's children there was no basis on which the Tribunal could be satisfied that they were refugees. The Tribunal affirmed the decision not to grant protection visas. The Tribunal did not discuss the consequences for the appellants were they to return to Sri Lanka.

Primary Judge's Reasons

10 The primary judge identified and dealt with five issues raised by the application for judicial review. It is convenient to summarise the primary judge's reasons by using the same format as his Honour, namely identifying the issue and setting out the reasoning.

(a) The finding that the applicant had a right to return to Italy

11 The appellants contended that the finding that they had a right to return to Italy was made without reference to any evidence capable of supporting it. The Tribunal had to determine whether the appellants could obtain effective protection in Italy. In the result, the Tribunal had made an error of law: par 476(1)(e), and not observed a procedure: par 476(1)(a). His Honour observed that the finding that Article 4 of Italian Law No 40 permitted the holder of a current permit (which his Honour said presumably included a permesso di soggiorno) to enter and reside in Italy upon notifying border control of his or her intention to re-enter that country was a finding of fact. His Honour noted that the state and effect of the law of a foreign country are questions of fact. As such, they are susceptible of proof by expert evidence capable of expressing an opinion about the laws of the relevant foreign State: Re Duke of Wellington [1947] Ch 506 at 514. However, if for example, the text of a statute of that country or an authoritative statement in a legal text book appears to suggest with sufficient precision the effect of the law in question, then it is not necessary for a court or tribunal to resort to expert evidence. The court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act 1995 (Cth), subs 174(1)).

12 His Honour referred to the Tribunal's identification of Article 4 of Italian Law No 40 of 6 March 1998 as the source of the appellants' entitlement to re-enter Italy and to remain there. However his Honour indicated that the Tribunal had not been required to go that far. That was because the fact that the appellant had resided and worked in Italy since 1986 and had been joined by the second appellant in 1993 raised the presumption that the Italian authorities would not preclude them from returning to Italy since they held valid Italian passports endorsed with Australian visitors' visas. I should note that the Tribunal did not make a finding that the appellants had valid Italian passports, and that in their applications for protection visas, the appellants said their passports were Sri Lankan. His Honour indicated this presumption was strengthened by the fact that the appellants had unexpired Italian temporary residence permits and, furthermore, had pending applications in Italy for permanent residence. His Honour concluded there was no failure on the Tribunal to "consider" (in the sense discussed by the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426) the "core" claims of the appellants that they had no right to re-enter Italy or that it was not practicable for them to exercise such a right.

(b) Should the Tribunal have arranged for further investigation of the applicants' right to return to Italy?

13 The primary Judge dealt with a contention that the Tribunal should have undertaken further investigations about the appellants' right to return to Italy. His Honour said the short answer to the point was that the Tribunal had been able to identify Art 4 of the Italian Law No 40 and reached a conclusion that it would entitle the appellants to obtain effective protection in Italy. No occasion arose for further investigation. His Honour observed there was nothing to indicate that during the course of the hearing, there was any difficulty in identifying and ascertaining the true effect of the Italian law and that the evidence of the applicants and the submission of their solicitor did not suggest that further investigation was required to elucidate that prima facie position. His Honour set out extracts from the transcript in which the Tribunal referred to the importance of the question of whether the appellant could return to Italy. His Honour also referred to submissions made by the appellants' solicitor suggesting it was doubtful the appellants could return to Italy and may have no more than a right to apply for permission to re-enter the country. His Honour noted the solicitor invited the Tribunal to make a finding that the appellants did not have a right to enter Italy to apply for protection. The primary judge then said at [43]:

The Tribunal was entitled to assume that the current "foreigners' permits of stay" meant what they said, that the applicants were allowed to return to Italy and stay there until at least 11 November 2000.
His Honour concluded that the evidence of the appellants and the submission of their solicitor did not suggest that further investigation was required to elucidate that prima facie position. His Honour observed that the Tribunal had rejected as fabricated the appellant's evidence that his last employer did not want him to come back to work with them which founded the contention that it was doubtful the appellants would be allowed to re-enter Italy.

14 The primary Judge concluded the appellants had not made out a ground of review based on the Tribunal's failure to make further enquiries about their entitlement to re-enter Italy (for reasons, his Honour noted, similar to those given by Emmett J in Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443).

(c) Was the Tribunal required by subs 424A(1) to give the applicants particulars of information as to the existence and effect of Italian Law 40?

15 A submission was made that the Tribunal had not asked the appellant or his solicitor any questions about Law No 40. Further, the interpretation of Law No 40 and its applicability to the circumstances of a particular individual was not in the same category as general country information. Accordingly Law No 40 was information that was specifically applicable to the particular circumstances of the appellants and should have been put to the appellant for comment pursuant to subs 424A(1).

16 It is convenient to set out, at this point, s 424A which provides:

(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 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.

(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.

17 It is also a convenient to set out his Honour's reasoning on this question (at [46]) (after he set out the text of pars (a) and (b) subs 424A(3)).

I infer that Art 4 of Italian Law 40 was a law of general application applicable to a class of persons, the holders of permessi di soggiorni of which the applicants were members. There can be no suggestion that Art 4 applied specifically to the applicants themselves. The information that the applicants held current permessi di soggiorni and the history of their arrival and residence in Italy had been given to the Tribunal by the applicants for the purpose of their application within the meaning of s 424A(3)(b). In these circumstances, s 424A(1) did not apply to the information going to the existence and effect of Art 4 of Italian Law 40.
(d) Did the Tribunal ask itself the wrong question or take into account an irrelevant consideration?

18 The appellants made a submission based on the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 345-6 concerning error arising from taking into account an irrelevant consideration. The primary judge noted that, having regard to subs 36(3), (4) and (5), the first question for the Tribunal to determine was whether the applicants had a right to re-enter and reside (at least temporarily) in Italy. His Honour concluded the Tribunal had asked and answered that question based on its understanding of Art 4 of Italian Law No 40 and on the effect of the current working permit (permessi di soggiorni). His Honour noted that the appellants did not seek to invoke the ground of review afforded by par 476(1)(g) of the Act "that there was no evidence or other material to justify the making of the decision". They did not seek to show (on the footing that the state of the law was a particular fact) the effect attributed to the Italian law by the Tribunal was erroneous, or did not exist.

19 The primary Judge referred to the Tribunal's consideration of the other matters raised by subs 36(4) and subs (5) and indicated no error of law was revealed.

(e) Should the Tribunal have asked "What if I am wrong?"

20 The primary judge dealt with a submission that the Tribunal's answers to the first and second questions raised by subs 36(3) and subs (4) had not foreclosed reasonable speculation in the way referred to by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293. His Honour concluded that in the Tribunal's discussion of the effect of Italian law, in light of the appellants' current temporary residence and working permits, there was no degree of diffidence to suggest that it entertained a real doubt about its conclusion regarding the appellants' right to re-enter Italy and reside there.

21 His Honour indicated he was unable to conclude that having regard to the way in which the claims of the appellants had been pursued before the Tribunal and the way in which it expressed the relevant findings of fact, it should have considered (on the hypothesis that it was wrong about the availability of effective protection in Italy) whether the appellants had a well-founded fear of persecution in Sri Lanka.

Issues in the Appeal

22 The appellants' counsel did not pursue the grounds of appeal in the notice of appeal as initially filed. At the hearing another ground was advanced which the Minister did not oppose being raised. It was in these terms:

The learned judge at first instance erred in not finding that the Refugee Review Tribunal ("the Tribunal") was in breach of a procedure that was required by the Migration Act 1958 to be observed in connection with the making of the decision of the Tribunal relating to the appellants.
PARTICULARS

The Tribunal was in breach of the requirements of s 424A of the Migration Act 1958:

(a) in not giving the appellants particulars of Article 4 of Italian Law 40;

(b) further or in the alternative, in not ensuring that the appellants understood why this information was relevant to the review;

(c) further or in the alternative, in not inviting the appellants to comment on this information.

23 As a result of this amendment, this appeal raises a narrow, though potentially important, point of construction. The appellants contended that by operation of subs 424A(1) of the Act, the Tribunal was obliged to give the appellant particulars of information concerning the Italian law. This raises for consideration the scope and operation of par (a) of subs 424A(3). The paragraph concerns information which may have two characteristics. The first is that it is not specifically about an applicant (or another person). The second is that it is just about a class of persons of which an applicant (or other person) is a member. I will not, from this point on, repeat the reference to another or other person found in the provision. One difference between the parties in the appeal concerning the construction of the paragraph, was whether the two characteristics of the information must exist before the paragraph is enlivened so as to relieve the Tribunal of the obligation otherwise arising under subs (1).

24 Counsel for the Minister's primary submission was that the identification of the second characteristic was to reinforce the type of information which would have the first characteristic. Such an approach involves reading the paragraph as a composite whole. The whole paragraph refers to information that is not specifically about an applicant or another person but rather, by contradistinction, is about a class of persons of which an applicant or other person is a member. The word "and" should be treated as meaning "but rather". Approached this way, it would be sufficient for the exclusion to operate, if the information was not specifically about an applicant (a point said to be conceded by the appellants in relation to the information in issue in these proceedings). Counsel for the Minister submitted that if the information had both characteristics then the words "just about" cannot be given a narrow literal meaning. Counsel for the appellants submitted that the information had to have both characteristics before the Tribunal was relieved of the obligation (if it would otherwise arise) imposed by subs (1).

25 I see a number of difficulties with the construction advanced by the Minister. The first is that it does not accord with the ordinary and natural meaning of the words in the paragraph. The use of the word "and" linking the words identifying the two characteristics indicates that the information to which the paragraph is directed must have both of them. That is, "and" operates conjunctively consistent with its ordinary meaning. Secondly the paragraph relieves the Tribunal of an obligation to provide particulars of information which would, at the least, contribute to a decision adverse to an applicant if not centrally underpin the decision. By imposing that obligation, the legislature is intending to confer on an applicant a benefit of the type analogous to that which arises under the common law rules concerning procedural fairness. A construction of the paragraph should be adopted which preserves, rather than diminishes, that benefit: see Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 per Ryan and Conti JJ at [20] and Merkel J at [36]-[40].

26 It is difficult to say with absolute certainty what is the purpose of the exclusion in par (a). It may be that the exclusion is intended to ensure that while under subs (1) an applicant would, by statutory direction, be provided with material the common law would ordinarily require be provided having regard to the judgment of the High Court in Kioa v West (1985) 159 CLR 550 (particularly the observations of Mason J at 870 concerning information sourced from a third party which was personal to the applicant and on which the decision might be based), and other material need not be provided. However if that was intended, the positive obligation could have been cast in terms which limited it to providing information of the type referred to by the High Court.

27 Perhaps the exclusion is intended to ensure that while an applicant will get particulars of all information on which the decision would be based, particulars of general information concerning the circumstances of a person in the position of the applicant, but not peculiar to the applicant, need not be provided. The legislature may well have had in mind that unless there was such a restriction, the Tribunal would have to provide particulars of significant volumes of information (together with some explanation of its relevance: see par 424A(1)(b)) which generally touched upon the applicant circumstances but on which the applicant might not be able to usefully comment. The legislature may have had in mind general country information (typically from bodies such as the United States State Department or Amnesty International) or communications with Australian Embassies, Consulates or High Commissions.

28 It is quite possible that the legislature may have thought that such material could be treated by the Tribunal as authoritative because it came from respected sources and that little would be gained by giving an applicant an opportunity to contradict it or otherwise put it in issue unless such material contained information specifically about the applicant (which might arise, for example, when an applicant had been a political figure of prominence in his or her country of nationality). In that latter situation the applicant might have direct knowledge enabling him or her to usefully comment on the material. There are now a number of cases in which it has been decided that the exclusion in par 424A(3)(a) operates on country information: see Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 at [16]; Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 at [28] upheld on appeal at [2001] FCA 570 at [53]; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 at [14] (this point not challenged on appeal); Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 at [29] (this point not challenged on appeal); W104/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 771 at [22]-[23]; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 at [48]-[51] (this point not challenged on appeal).

29 However, if this was the purpose of par (a), and in my opinion it probably is, it is consistent with the construction advanced by the appellants. That would be because country information generally concerning a class of which an applicant was a member (concerning, for example, the way members of a particular political party, social group or religion were treated) but not, in any respect, specifically about an applicant would have both of the characteristics relieving the Tribunal of the obligation which might otherwise arise under subs 424A(1). If it was specifically about an applicant in some respect, the Tribunal would not be relieved of its obligation to provide particulars of it. In my view, the construction advanced by the appellants is to be preferred.

30 However that leads to what is probably the more difficult question, namely, was the information concerning the Italian law, information of the type comprehended by par (a)? A first step is to identify what was the "information" in question. This was not, it would seem, an issue the parties apparently focused on in the proceedings before the primary judge. Counsel for the appellants admitted to some difficulty in identifying with precision what the information was for the purposes of considering the operation of s 424A. He submitted that at the very minimum the Tribunal had something about Art 4 of Italian Law No 40. It was not possible to say whether it had the text of the law (whether in English or Italian) or a commentary on the law. He later said the information was "the knowledge the Tribunal had about Art 4 of Italian Law 40 and its effects". He accepted that the information could have been in a country report. Counsel for the Minister submitted that it could be inferred that the Tribunal had information regarding both the existence of Art 4 of Italian Law No 40 and at least that part of the content of Art 4 which stated that the "holders of a current permit need only notify the border control of their intention to re-enter Italy". It could also be inferred that the Tribunal had information from Italian press reports that Italian Law No 40 was "an attempt to regularise the status of hundreds of thousands of foreigners in Italy".

31 A helpful discussion of what might constitute "information" for present purposes is found in the judgment of the Full Court in Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212. That judgment concerned a "dob-in" letter received by the Tribunal. Their Honours said at 217:

...it may not strictly be necessary to consider the meaning of the word "information" as used in s 424(1) of the Migration Act. Nonetheless, we should record our view that the construction advanced by the appellant is too narrow.
The Macquarie Dictionary includes these definitions of the word "information":

"1. Knowledge communicated or received concerning some fact or circumstance; news. 2. Knowledge in various subjects, however acquired".

The Oxford English Dictionary (2nd ed, 1989) includes among its definitions of "information":

"3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told". (Emphasis added).

As these definitions show, "information" is capable of different shades of meaning, depending on the context.

The appellant's contention, as we understand it, is that "information" in s 424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s 424(1) as to the nature of "any information" that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated.

The point is reinforced by reference to s 424A(1). The obligations imposed by that provision apply when the RRT has "information", regardless of its source, that it considers would be the reason, or a part of the reason, for affirming the decision. Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT: cf Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548, at 562-563, per Hill J. It follows that an applicant may be able to show that particular "information" in the possession of the RRT is completely worthless. It is hardly likely that the word "information" is used in s 424A(1) in a sense different from its meaning in s 424(1). Indeed, Ms Winfield conceded as much.

Similarly, the Migration Act provides that an applicant may be invited to supply "additional information" to the RRT: see ss 424(2); 424B(1), (2); 424C(1). The additional information provided in response to such an invitation may or may not have any factual basis and may or may not rise above the level of assertion. It is an everyday occurrence for the RRT to reject as fabricated "information" provided by applicants.

It is not necessary for the purposes of the present case to explore the outer limits of the word "information" as used in ss 424(1) and 424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant's account of events are untrue. It includes the assertions made in this case by the informant, each of which addressed and (as the RRT said) cast doubt on an aspect of the applicant's account of events.

[Emphasis in original]

32 I respectfully agree. For present purposes it is probably sufficient to adopt the Minister's characterisation of what the information was which the Tribunal had in the present matter. On one view, that information concerning the Italian law satisfies both characteristics identified in par (a) referred to earlier. That is, the information was not specifically about the appellant because it was about a law of general application and was just about a class of persons of which the appellant is a member, namely holders of a permit (of the type held by the appellant) on which the law might operate.

33 However this characterisation of the information has, at least potentially, a highly prejudicial effect and brings about a result which, in my opinion, the legislature did not intend. A central feature of the appellant's case concerned his right to re-enter Italy. In rejecting that case the Tribunal has called in aid the terms of a law which were not raised by or with the appellant. That information forms part of the reasons leading to the Tribunal affirming the decision of the delegate. Yet the appellant was not given the opportunity to comment on, or even perhaps additionally, get advice about the way in which the law might operate. While I accept that the information concerning the Italian law was not specifically about the appellant, it was not information just about a class of persons of which the appellant was a member. It was not information about a class of persons at all. It was information about a law. Armed with the information, the Tribunal reached a conclusion about how the law would operate on the appellant (as a permit holder) and, at least by logical extension, on a class of people of which the appellant was a member (people holding the same permit). Even though the information was put to this use, the character of the information should not be coloured, for present purposes, by the use made of it. In my opinion, the learned primary judge erred in reaching the contrary conclusion that the information was not comprehended by par (a) of subs 424A(3).

34 Two alternative submissions were made by the Minister to support the orders of the primary judge. The first was that the primary judge was correct in concluding that, apart from whatever may have been the effect of par (a) of subs 424A(3), the Tribunal was not obliged to provide particulars of the information because it was information of the type referred to in par (b). I do not agree. While is true that part of the appellant's case was that notwithstanding the permit he held, he could not or might not be able to re-enter Italy, it was not based on the information in issue in this appeal. It was not part of his case that Art 4 of Italian Law No 40 was in particular terms that operated in a particular way (whether or not it supported of his claim). The information concerning the article was not given by the appellant for the purposes of his application.

35 The second alternative submission of the Minister was that the information was not information the Tribunal was obliged to give particulars of under subs 424A(1) in any event. That was because it was not information the Tribunal "considered would be the reason, or part of the reason, for affirming the decision" under review and reference was made to the judgment of the Full Court in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 especially at [94], [96], [99], [104] and [116] per Allsop J (Heerey J agreeing). The Tribunal's conclusion that the appellants could re-enter Italy was central to the way it disposed of the application for review. With respect to the learned primary judge, the Tribunal's decision was not that there was a right to re-enter because it could be assumed that the then current "foreigners' permits of stay" meant what they said, that the appellants were allowed to return to Italy and stay there until at least 11 November 2000.

36 In the passage from its decision set out at [8] above, the Tribunal began the second paragraph with its conclusion. That is, the conclusion that the appellants have a right to return to Italy. It then explained how it reached that conclusion. In the course of that explanation, it referred to Art 4 of Italian Law No 40 and summarised what the law stated at least in part. It concluded by saying that "the above" established that the appellant had a right to re-enter and reside in Italy. That conclusion has fairly plainly been informed by the Tribunal's understanding of the effect of Art 4. The information concerning Article 4 constituted, from the Tribunal's perspective, part of the reason for affirming the decision of the delegate.

37 In my opinion, the Tribunal failed to comply with the obligation imposed by subs 424A(1) and the learned primary judge erred in concluding it had. Accordingly the order dismissing the application for judicial review should be set aside and the matter remitted to the Tribunal for further hearing and determination. The Minister should pay the appellants' costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.




Associate:

Dated: 15 August 2003

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 608 OF 2002





On appeal from a single Judge of the Federal Court of Australia

BETWEEN:
APPLICANT VHAJ

FIRST APPELLANT

APPLICANT VHAK

SECOND APPELLANT

APPLICANT VHAL

THIRD APPELLANT

APPLICANT VHAN

FOURTH APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
MOORE, KENNY AND DOWNES JJ


DATE:
15 AUGUST 2003


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
KENNY J:

38 I have had the benefit of reading in draft form the reasons for judgment prepared by Moore J. His Honour has set out the curial history of the appeal and the circumstances in which the appellants have sought protection visas. It is unnecessary for me to say more. It is apparent from the reasons that I am about to give that I have the misfortune to disagree with Moore J on a point of statutory construction raised by this appeal.

ISSUES FOR DETERMINATION

39 The primary issue for determination in this appeal is whether the Refugee Review Tribunal ("the Tribunal") contravened s 424A of the Migration Act 1958 (Cth) ("the Act") by failing to give the appellants particulars of a law of Italy, namely, Art 4 of Law No 40 of 6 March 1998. If so, there are two further issues: first, does the contravention constitute a reviewable error within par 476(1)(a) of the Act as it stood prior to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth); and, secondly, does the error warrant an order under s 481 that the decision of the Tribunal be set aside. Of course, neither of these questions will arise for determination if there has been no contravention of s 424A.

40 The primary question turns on the proper construction of par 424A(3)(a) of the Act. Section 424A is part of Div 4 of Pt 7 of the Act. Div 4 is headed "Conduct of review". At the relevant time, s 424A was in the following terms:

(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.

41 Sections 424A and 424B resemble the obligations imposed on the Migration Review Tribunal by ss 359A and 359B, and on the Minister, by ss 57 and 58 of the Act. Subject to subs 424A(3), by virtue of subs 424A(1), before making a decision adverse to an applicant for a protection visa, the Tribunal is obliged to give "particulars" of any information that the Tribunal considers "would be the reason, or a part of the reason" for that decision. In this circumstance, the Tribunal must ensure (as far as reasonably practicable) that the applicant understands why the information is relevant to the decision, and must invite him or her to comment on the information. Subsection 424A(2) governs the manner in which an invitation to comment is made. The Tribunal is not, however, obliged to give particulars of any information of the kind described in subs 424A(1) of the Act if the information is also of a kind described in subs 424A(3).

42 Upon the Court granting the appellants leave to amend their grounds of appeal, the appellants submitted that the primary judge erred in rejecting their contention that:

[T]he Tribunal was in breach of s 424A of the Act by not giving particulars of Article 4 of Law 40 of the Italian Law to the appellants for them to understand that it might be the basis for an adverse decision against them and to give them an opportunity to comment on it or to make submissions and argument concerning it at the hearing conducted by the Tribunal.
This was ultimately the sole ground of appeal.

THE APPLICATION OF S 424A

43 The reasons of the Tribunal establish that the reason, or a part of the reason, for its affirming the decision under review was that "Art 4 of [L]aw No. 40 of 6 March 1998 states inter alia that holders of a current permit need only notify the [Italian] border control of their intention to re-enter [Italy]". (References to "Information" hereafter are to this information.) The Tribunal said, amongst other things, that this Information "establishes that the applicant has a right to re-enter and reside in Italy". (In referring to the applicant, the Tribunal was referring to the husband of the appellant wife and father of the appellant children.) The right to enter and reside in Italy was critical to the outcome of the appellants' application for protection visas since, by virtue of s 36(3) of the Act, Australia is taken not to have protection obligations to "a non-citizen who has not taken all possible steps to avail himself or herself" of a right to enter and reside in a country other than Australia (unless he or she falls within ss 36(4) and (5)): see also Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154. The Information was information of a kind referred to in s 424A(1), even though, as the respondent submitted, the Tribunal might have arrived at the same conclusion without relying on the effect of the Italian law. It was common ground that the Tribunal had not given particulars of the Information to the appellants before affirming the decision under review.

THE CONSTRUCTION OF PAR 424A(3)(a)

44 On this appeal, no question arises concerning pars 424A(3)(b) or (c). The appellants did not give the Information to the Tribunal "for the purpose of the application" for review: see par 424A(3)(b) and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry"). Nor was the Information "non-disclosable information" as defined in subs 5(1) of the Act: see also ss 437 and 438.

45 The only question raised by this appeal is whether the Information was of the kind referred to in par 424A(3)(a) of the Act. It is plain enough that the Information was "not specifically about the applicant or another person" (emphasis added). The Information concerned the effect of a law of general application and, in particular, the effect of the law on the rights of holders of current permits to enter Italy. In this context, however, it is less easy to say whether the Information was "just about a class of persons of which the applicant or other person is a member": cf VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 363 ("VDAU"), at [54] per Weinberg J.

46 Much of the difficulty in construing par 424A(3)(a) stems from the paragraph's unorthodox use of the expression "just about". The expression is not commonly used in legislation. The Court's research has not disclosed any apposite reference to the expression in any of the authoritative or better-known dictionaries. Thus, for example, Webster's Third New International Dictionary attributes the meaning "almost, approximately" to the expression "just about", but this is not what is meant in par 424A(3)(a). Neither the Oxford English Dictionary nor The Macquarie Dictionary mention the expression "just about", although, according to both, "about" may signify "concerning" and, according to the Oxford English Dictionary, "just" may signify "exactly, precisely; verily; actually; closely". In the context of par 424A(3)(a), the expression "just about" is a limiting one, to be contrasted with the words "not specifically about" earlier in the paragraph. In this context, the expression signifies information concerning "no more than" a class of persons of which the applicant or other person is a member. (Weinberg J discussed the significance of "or other person" in par 424A(3)(a) in VDAU, at [63]-[69].)

47 Item 3 of Pt 1 of Sch 3 of the Migration Legislation Amendment Act (No. 1) 1998 (Cth) introduced s 424A, as well as a new s 424 and ss 424B and 424C into the Act, with effect from 1 June 1999. The Explanatory Memoranda accompanying the Bill described these provisions as "... a code of procedure which the Tribunal is to follow in conducting its review". In the Second Reading Speech, the Minister noted that the Bill "includes certain safeguards for applicants by introducing a code of procedure ... which is similar to that already applying to decisions made by the department. This code includes such matters as the giving of a prescribed notice of the timing for a hearing, and a requirement that applicants be given access to, and time to comment on, adverse material relevant to them": House of Representatives, 2 December 1998, at p 1123. (Although not significant for present purposes, I note that the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 repealed subs 424A(2) and inserted a new subsection.)

48 Section 424A must be construed consistently with its purpose: see Acts Interpretation Act 1901 (Cth), s 15AA and Al Shamry, at 39 per Merkel J (with whom Ryan and Conti JJ relevantly agreed). The Minister's Second Reading Speech confirms that the purpose of s 424A is to safeguard an applicant. As the Full Court noted in Al Shamry, this purpose is met by affording him or her "... the opportunity to respond to the gravamen or substance of any adverse information upon which the [Tribunal] proposes to act, the significance of which the applicant may be unaware": see Al Shamry, at 40-41; also Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 429-430 per Allsop J (with whom Heerey J agreed).

49 Is information about the law of another country concerning the entry rights of non-nationals who hold permits properly described as information "just about" a class of persons of which, relevantly, one of the appellants was a member? It seems to me that it is.

50 In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act: see, e.g., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and "W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ("VEAJ of 2002"), at [36]-[38], and [43] per Gray J.

51 These decisions should be contrasted with the decision in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 ("Baig"). In Baig, Gray J held that information in Agence France Presse was not "just about" a class of persons of which the applicant or any other person was a member. At [33] his Honour said:

Section 424A(1)(a) is expressed in terms of the Tribunal's subjective view: if the Tribunal `considers' that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why [it is] relevant to the review and invite the applicant to comment on it. 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.
52 This passage illuminates the operation of par 424A(3)(a) by focussing on the relevance of the information in question to the Tribunal's decision-making. His Honour's analysis is premised on the assumption that whether or not information is "just about" a class of persons of which the applicant or any other person is a member depends on whether or not the information is relevant to the decision-making simply because it concerns this class. See also VEAJ of 2002, at [43]-[44]. If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be "just about" a class of persons of which the applicant or other person is a member. If, however, the information is relevant to the Tribunal's review upon some other basis, then it will not fall within s 424A(3)(a), even though it does not specifically concern the applicant and it is about (but not just about) a class of persons of which the applicant or another person is a member. The information in Baig did not fall within s 424A(3) because, although it was not specifically about the applicant, it was relevant to his participation in a campaign for a by-election and was not just about a class of persons that included him.

53 Baig should be contrasted with VAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 573 (the facts of which are closer to the present case than Baig). In VAAC, Marshall J considered a number of issues, including an alleged contravention of s 424A. Although his Honour's decision was ultimately reversed on appeal (on a ground that had not been argued at first instance) the Full Court endorsed his approach to par 424A(3)(a): see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74, at [20]. A comparison of the decisions in VAAC and Baig illustrates the difference between information that falls within subs 424A(3) and information that does not.

54 At first instance, Marshall J held that the Tribunal had not contravened subs 424A(1) by failing "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": see VAAC [2002] FCA 573, at [12] and [28]. His Honour held, at [26]-[27], that the information in question was not specifically about the applicant or another person, and "[was] just about a class of persons of which the applicant or another person [was] a member". On appeal, the Full Court (North, Merkel and Weinberg JJ) agreed: see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74. Their Honours said, at [20]:

The information was just about a class of persons, namely, Afghan nationals who seek the issue of a passport. In relation to that class, the information was that there was a consulate in existence in Canberra which could issue such passports.
55 The information in VAAC was relevant merely because it tended to show that there was a class of persons, which included the applicant, who could obtain an Afghan passport from the Afghan consulate in Canberra. This information was significant because there was other material before the Tribunal showing that, if he had a passport, the applicant could enter and reside in India, where he would not have a well-founded fear of persecution on Convention grounds. There is no relevant difference, it seems to me, between the information at issue in VAAC and the Information in this case. In a sense, the Information in this case is about Italian law, but it is relevant only because it is also about holders of current Italian permits. As already noted, information does not cease to be information "just about" a class of persons merely because it can be characterised in more than one way. For the purpose of par 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal's decision only because it is about this class of persons. The Information in this case was relevant only because it provided the basis for the Tribunal's conclusion that the appellants could enter Italy and reside there. (The Tribunal's decision assumed that if the appellant husband could reside in Italy, then so too could the appellant wife and appellant children.) Since there was evidence before the Tribunal that the appellant husband had a current permit, then it was open to the Tribunal to conclude that he was a member of the class of current permit holders who, by virtue of Italian law, could enter and reside in Italy. The Information was not relevant to the Tribunal's decision-making on any other basis. The Information was, therefore, "just about a class of persons of which the applicant ... is a member".

56 It follows that the Information satisfies both elements of par 424A(3)(a) and falls within the exception in that paragraph. Accordingly, the Tribunal had no obligation under par 424A(1) to invite comment upon it. The appellant did not contend or suggest that, in the circumstances of the case, there might otherwise have been any breach on the Tribunal's part of the general rules of procedural fairness.

57 For these reasons, I would dismiss the appeal.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.




Associate:

Dated: 15 August 2003

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 608 OF 2002





On appeal from a single Judge of the Federal Court of Australia

BETWEEN:
APPLICANT VHAJ

FIRST APPELLANT

APPLICANT VHAK

SECOND APPELLANT

APPLICANT VHAL

THIRD APPELLANT

APPLICANT VHAN

FOURTH APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
MOORE, KENNY AND DOWNES JJ


DATE:
15 AUGUST 2003


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
DOWNES J:

58 In my opinion, s 424A of the Migration Act 1958 does not oblige the Refugee Review Tribunal to give to an applicant particulars of information it has relating to the law of a foreign country even though that information may be a significant matter in determining whether a claim to refugee status is made out. To my mind such information "is not specifically about the applicant ... and is just about a class of persons of which the applicant ... is a member ..." so that by subs 424A(3) the section does not apply to the information.

59 There are four appellants, a husband and wife, and their two children. The parents were born in Sri Lanka. They are Tamil. The children were born in Italy. The father left Sri Lanka in 1981. He worked in Qatar until 1986. In 1986 he went to Italy. He remained in Italy under a succession of work permits. He returned to Sri Lanka three times. On one of these occasions, in 1992, he married the mother. She went to live with him in Italy where their children were subsequently born. The appellants arrived in Australia on 12 March 2000. They applied for protection visas.

60 The delegate of the Minister for Immigration and Multicultural Affairs refused the protection visa applications. So did the Refugee Review Tribunal. The appellants applied to this Court. Ryan J dismissed the appellants' applications for review. From that decision the appellants have appealed to the Full Court.

61 Only one ground of appeal is relied upon. The ground is that the Refugee Review Tribunal was in breach of s 424A of the Migration Act by "not giving to the appellants particulars of Article 4 of the Italian law 40".

62 The issue arises in connection with the question whether the appellants had a right to reside in Italy, the Tribunal having found that they did have that that right and that, because they had no well-founded fear of persecution in Italy, Australia did not have protection obligations in relation to them.

63 In the course of its reasons the Tribunal said:

"The applicants have a right to return to Italy. Their temporary residence permit (Permesso di Soggiorno) expires on 11 November 2000. They have also applied for a permanent residence permit (Carta di Soggiorno) in May 1998 and although they have not received a decision on their application the Tribunal notes that Italian Law No 40 of 6 March 1998 made provisions for such an application and that no adverse inference can be drawn from the non-receipt of the decision up to this point since this law was an attempt to regularise the status of hundreds of thousands of foreigners in Italy, as was reported in the Italian press at the time.
...

Even if the applicant had been sacked from his work or was no longer wanted by that employer, this does not vitiate the right to enter and reside in Italy. Art 4 of law No. 40 of 6 March 1998 states inter alia that holders of a current permit need only notify the border control of their intention to re-enter.


The Tribunal finds that the above establishes that the applicant has a right to re-enter and reside in Italy."

64 Section 424A of the Migration Act is, relevantly, 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

(c) invite the applicant to comment on it.

...

(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."

65 Assuming that subs (1) of s 424A applies the question in this appeal is whether the information relating to Italian Law 40 upon which the Tribunal's reasoning set out above was based was information falling within para 424A(3)(a).

66 Ryan J rejected this argument. His reasoning was as follows:

"I infer that Art 4 of Italian Law 40 was a law of general application applicable to a class of persons, the holders of permessi di soggiorni of which the applicants were members. There can be no suggestion that Art 4 applied specifically to the applicants themselves. The information that the applicants held current permessi di soggiorni and the history of their arrival and residence in Italy had been given to the Tribunal by the applicants for the purpose of their application within the meaning of s 424A(3)(b). In these circumstances, s 424A(1) did not apply to the information going to the existence and effect of Art 4 of Italian Law 40."
67 I agree with his Honour's reasoning and conclusion in the first two sentences and the last sentence.

68 It is not necessary to decide whether subs 424A(3)(a) promulgates one composite test (as the respondent submitted) or two cumulative requirements (as the appellants submitted). Even if there are cumulative tests it will not often be the case that information satisfying one formula does not satisfy the other formula. Clearly, Italian Law 40 did not apply specifically to the appellants. It is necessary, therefore, to focus upon whether the information was "just about a class".

69 There is a superficial attractiveness in an argument that information about a law is not information about a class of persons. However, laws apply to persons and when a law applies to a class of persons such as the holders of permessi di soggiorni, so that the provisions of the law can be said to affect the class, it seems to me that it is natural to consider the law to be information about the class. Put another way, although the law itself is not information about the class of persons to which it applies, it is not the law itself that is relevant. What is relevant is the fact that members of the class to which the law applies have rights and obligations flowing from the law. So understood, the information is information about the class.

70 It is necessary to bear in mind that to attract the provisions of subs 424A(1) the relevant information must be information which is a reason for affirming a decision to refuse a visa. Laws as such could never be such a reason. What makes Law 40 relevant is that it applies to the class of persons which include the appellants. That being its relevance it cannot be said that it is not information about a class of persons. The information is information about the association between the law and the class.

71 Official and semi-official information contained in documents assessing conditions in countries from which persons seeking refugee status regularly come ("country information") has been held to fall within par 424A(3)(a) (Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 at par [16]; Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 at par [28] upheld on appeal at [2001] FCA 570 at par [53]; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 at par [14]; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 at par [29]; W104/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 771 at paras [22] and [23]; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 at paras [48] and [51]). It is useful to observe that such information could easily include observations relating to applicable laws such as laws protecting against persecution. Again, however, the relevance is the applicability of the law and not the law itself understood without context.

72 The appellants submit that the phrase "just about" shows that the information which need not be disclosed is limited in some way and the information in question is "broader than" that limitation. This is an argument that the phrase "just about" relates to the content of the information. Whether or not the test is a composite one it is certainly true that the phrase "just about" is juxtaposed to the phrase "not specifically about". I do not read the phrase "just about" as defining the breadth or content of the information but as refining the object of the information or whom the information must be about ("a class of persons") in the same way as "specifically about" refines its object ("the applicant or another person"). Information that legislation confers rights of residence on a class of persons is information "just about" that class in the sense that it is not about individuals or persons who are not part of the class. It does not matter how broad the information is, so long as it relates only to the class. The decisions of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 and of Marshall J (at first instance) and North, Merkel and Weinberg JJ (on appeal) in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 seem to me to illustrate this proposition. In the former, the information, properly understood, concerned the applicant because "t bore specifically upon the question of the applicant's involvement in campaigning in a by-election" (par [33]). In the latter, the information was not about the applicant but about a class of persons, namely Afghan nationals, that they could apply to a consulate in Australia for the issue of a passport.

73 The precise question of whether the test in par 424A(3)(a) is a composite test or a cumulative test has not been decided. However, some observations made in the cases have tended to suggest there is a single test primarily concerned with whether it could be said that the information was not specifically about a person (e.g. NACL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 387 at par [17]; NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 381 at par [6]; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 at par [54]; Akpata at par [14]; and W104/00A at par [22]; cf. Tharairasa at 286, paras [15] and [16]; and Islam at paras [48] and [49]).

74 Although difficulty in applying a clearly expressed statutory provision will not alone affect its construction I am comforted in the conclusion to which I have come by the fact that it would be extremely difficult for decision-makers applying s 424A to correctly obey its requirements if sophisticated reasoning were required to determine what fell within and what without the proviso in subs (3). The appellants' argument, if correct, would require such sophisticated reasoning.

75 For these reasons I conclude that although the information adverted to by the Refugee Review Tribunal in concluding that the applicants had a right to re-enter and reside in Italy prima facie fell within subs 424A(1) of the Migration Act it was excluded from those provisions by par 424A(3)(a).

76 The respondent also argued that, properly understood, the information fell within par 424A(3)(b) of the Migration Act. This argument relied upon the fact that the appellants had themselves informed the Tribunal that they had unexpired Italian temporary residence permits. That was sufficient, it was said, to support the decision of the Tribunal. The trial judge upheld this claim in the third sentence of the passage set out above (par [9]).

77 This claim does not seem to me to raise any argument under par 424A(3)(b). The information put forward by the appellants as information that they should have been given, namely information about the operation of Italian Law 40, was not information supplied by the appellants. If the respondent's argument has any force it rather seems to me to support a submission that that information either did not satisfy the test in subs 424A(1), or, if it did, would not have affected the result so that relief should be refused under subs 481(1) of the Migration Act. Because the argument was not put in either of these ways and because I have already reached a conclusion which determines the result in this matter I need not deal with the argument. However, my present inclination is to think that reading the reasons of the Tribunal as a whole, and because two references were made to Law 40 in the critical passage in the Tribunal's reasons, this ground of support for the decision of the Tribunal, however framed, should not succeed.

78 The appeal should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.




Associate:

Dated: 15 August 2003

Counsel for the Appellants:
Mr A Krohn






Solicitor for the Appellants:
Ravi James & Associates






Counsel for the Respondent:
Ms C Beaton-Wells






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
27 February 2003






Date of Judgment:
15 August 2003


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