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Cases

MIGRATION – notice issued pursuant to s 424A of the Migration Act 1958 (Cth) – s 424A notice an invitation to comment – no requirement for appellant to be given opportunity to gather documentation

ADMINISTRATIVE LAW – judicial review – procedural fairness – decision of RRT – request for extension of time to produce documents – additional documentation relevant and important – allowing adequate time for appellant to establish nationality – appellant aware nationality a central issue – RRT decision to be addressed on the basis of the material that was before it at the time – decision may have been wrong in fact but did not therefore exceed jurisdiction – whether RRT made an erroneous finding or reached a mistaken conclusion –recommendation to Minister to exercise discretion under s 417 of the Migration Act 1958 (Cth)

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

WAAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 316 (23 December 2003)
Last Updated: 24 December 2003

FEDERAL COURT OF AUSTRALIA


WAAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 316


MIGRATION – notice issued pursuant to s 424A of the Migration Act 1958 (Cth) – s 424A notice an invitation to comment – no requirement for appellant to be given opportunity to gather documentation

ADMINISTRATIVE LAW – judicial review – procedural fairness – decision of RRT – request for extension of time to produce documents – additional documentation relevant and important – allowing adequate time for appellant to establish nationality – appellant aware nationality a central issue – RRT decision to be addressed on the basis of the material that was before it at the time – decision may have been wrong in fact but did not therefore exceed jurisdiction – whether RRT made an erroneous finding or reached a mistaken conclusion –recommendation to Minister to exercise discretion under s 417 of the Migration Act 1958 (Cth)


Migration Act 1958 (Cth) ss 417, 424A


Craig v South Australia (1995) 184 CLR 163 cited
Immigration and Multicultural Affairs, Minister for v Yusuf (2001) 206 CLR 323 cited














WAAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 91 OF 2003


TAMBERLIN, R D NICHOLSON AND EMMETT JJ
23 DECEMBER 2003
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 91 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: WAAF
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: TAMBERLIN, R D NICHOLSON AND EMMETT JJ
DATE OF ORDER: 23 DECEMBER 2003
WHERE MADE: PERTH


THE COURT ORDERS THAT:

1. the appeal is dismissed.





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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 91 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: WAAF
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: TAMBERLIN, R D NICHOLSON AND EMMETT JJ
DATE: 23 DECEMBER 2003
PLACE: PERTH


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Driver FM given on 16 April 2003, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT"), given on 21 September 2001. The RRT affirmed a decision not to grant a protection visa to the appellant.

2 The principal ground of appeal is that the RRT did not afford the appellant procedural fairness, because it did not allow him a reasonable time to establish his nationality.

3 The appellant arrived in Australia on 22 December 2000 as an unlawful non-citizen. At an unauthorised arrivals interview conducted by the Department of Immigration and Multicultural Affairs ("the Department") on 29 December 2000, he claimed to have been born in Iran, to be of Arab ethnicity, and to speak both Farsi and Arabic.

4 On 4 June 2001, the appellant lodged an application for a protection visa. He also lodged a statutory declaration made on 1 June 2001, in which he claimed to have been born in Iraq in 1979, and to have lived there until he was two years old, when his family was forced to go to Iran. He claimed that he was issued with a "green card" by Iranian authorities, when he was three or four years old, and that a law had been subsequently passed that stipulated that all foreigners had to leave Iran by March 2001. He said at that point he feared being sent back to Iraq, where he could have been persecuted because he had previously been deported.

5 On 27 June 2001, a Ministerial delegate refused the appellant’s protection visa application on the basis that the appellant was born in Iran, and did not have a well-founded fear of persecution for a Convention reason if returned to Iran. He was on notice from that date that his nationality was a critical issue.

6 On 2 July 2001, the appellant applied for review to the RRT. The matter was listed for hearing on 29 August 2001. On 27 August 2001, a notice under s 424A of the Migration Act 1958 (Cth) ("the Act") was issued to the appellant. Section 424A relevantly provides:

"424A Applicant must be given certain information

(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. ..."

7 The relevant terms of the s 424A notice are as follows:

"...

27 August 2001

Dear [WAAF]

RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS):

The Tribunal has information that would, subject to any comments you make, be the reason, or a part of the reason, for deciding that you are not entitled to a Protection Visa.

The information is as follows:

• When you were interviewed upon arrival in Australia you stated that you were born in [a place in Iran], that you are an Iranian national, that you used a genuine Iranian passport issued in [a place in Iran] en route to Australia, that you rarely see your father, and that you obtained an exemption from military service because you were looking after your brother;
• A letter addressed to Dr Mohamed Al Jabiri found in your property box at the Detention Centre contains your name, is written in Farsi, does not mention that you were born in Iraq and does not mention that you are a citizen of Iraq. The letter includes criticism of the Iranian regime, criticism of the lack of free speech in Iran and reference to the alleged serious mistreatment of ethnic Arabs in Iran.

This information is relevant because it affects the credibility of your later claim to be an Iraqi national.

You are invited to comment on this information. Your comments are to be given at an interview between you and the Tribunal Member reviewing your case.

The interview will be held in conjunction with the hearing of your case.

As advised in the Tribunal’s letter of 27 July 2001 the hearing of your case will be on Wednesday, 29 August 2001. ..." (Original emphasis).

8 It is said on behalf of the appellant that this notice did not come to his attention until shortly before the RRT hearing. In any event, it can be accepted that it was received within about a day or so of the hearing.

9 At the RRT hearing on 29 August 2001, the appellant gave evidence. The RRT member indicated that a decision would be made within a few days, or at most a couple of weeks, after receiving further written submissions from the appellant. The appellant also called another witness in support of his case. After the hearing, on 5 September 2001, the appellant’s adviser provided written submissions to the RRT as indicated during the hearing. Also, on that date, the appellant’s advisers made a written application for an extension of time of fifteen days, on the basis that the appellant was expecting correspondence from both Canberra and Iran which, he instructed his advisers, would assist the RRT in the determination of his application. This letter sought an indication as to whether the RRT member was mindful to grant such an extension of time.

10 On 7 September 2001, a facsimile was sent to the advisers from the RRT, which stated:

"In reference to your request dated 5 September 2001 regarding an extension of time of 2 weeks, the Tribunal Member would like to know that [sic] what this correspondence is and how it will be of assistance?" (Original emphasis).

11 The RRT received no response to this request. On 21 September 2001, the RRT, not having received any details of the correspondence, or any indication of the way in which it was to be used, handed down its decision to affirm the refusal of the visa.

12 The appellant claims that on 25 September 2001, four days after the decision, he received a document from Iran, which in translation reads:

" (Emblem)

Islamic Republic of Iran
...Governnor [sic] General’s Office
...Governor’s Office Number: ...
Date: ...

Certificate

This is to certify that the Iraqi national referred to as ..., was the holder of the Identity Card number ... which was issued by this Governor’s Office. Due to leaving the country his Identity Card has been retrieved and the necessary actions in relation to cancellations of his Identity Card and file has taken place.

(Signature and stamp of the ... Governor’s Office)".

13 This document was never received by the RRT. There is some dispute as to whether it was received by the Department. It appears from Departmental records that it was never received at any relevant time. Taken on its face, this document is an important one and supports the appellant’s case in a central and significant aspect. It indicates that the appellant was born in Iraq, and could have materially affected the RRT decision had it been brought to the attention of the RRT at any stage.

14 On 21 October 2002, prior to the hearing before the Magistrate, Joanne Andretich, of the Australian Government solicitor, swore an affidavit which stated that, on 7 June 2002, she received the original untranslated letter referred to in [12] above. She has annexed to that affidavit a statutory declaration that was enclosed with the letter of 4 June 2002 from the appellant, which relevantly reads:

"Here by [sic] I, [WAAF] swear and affirm

1. Before 29 August 2001 that was my RRT hearing I had asked my family to fax a document for me to DIMA (0891933840) and when I contacted them, I noticed that they had sent this document nearly a few days ago before starting of the hearing and also had mailed a copy of it which I received the copy of document after a few days of my rejection from RRT (21 September 2001)
2. Therefore I received that copy nearly on 25 September 2001. But before the RRT hearing when my family advised me that the document was faxed to DIMA, I asked about it and I was advised by DIMA that they had not received any document and also I am not allowed to have faxed documents from my family from Iran.
3. When I received the copy, because I had been rejected in the RRT hearing I waited for federal court hearing and after I faxed it to the federal court.

4. I did not give it to the legal adviser, because my file had been closed before their company and I did not have any legal adviser after rejection in RRT hearing.

5. I had received the copy after rejection, so I could not provide it to the Refugee Review Tribunal."
15 Subsequent evidence provided to the Magistrates Court indicates that the original untranslated letter referred to in [12] above, was sent from Iraq to Australia on 21 September 2001, which was the date of the RRT decision. However, as the appellant states in his statutory declaration, he did not receive it until 25 September 2001, and it does not appear to have been brought to the attention of the Department. The earliest mention of this letter is when it came to the attention of the Australian Government Solicitor, in an untranslated form, on or about 7 June 2002.

RRT DECISION

16 The RRT observed that the finding of whether the appellant was in fact an Iraqi national was "central" to its decision. In this regard, the RRT thought it significant that the appellant identified himself as an Iranian citizen on arrival and later made entirely different claims to those originally made.

17 The RRT rejected the evidence of a witness called for the appellant, which it did not find credible, on the basis that the witness’s evidence was given to assist the appellant. Evidence relating to the appellant’s brother’s green card was considered to have been outweighed by other problems perceived on the face of that document by the RRT. It noted that no date of issue had been entered on the document, and that the appellant’s evidence concerning his Iraqi nationality was unpersuasive.

18 The RRT made an affirmative finding that the appellant was a national of Iran and that he had claimed to be an Iraqi national to create a profile as a refugee. The RRT was not satisfied that the appellant feared persecution in Iran for a Convention reasons if returned to that country.

FEDERAL MAGISTRATE’S DECISION

19 The learned Magistrate dismissed the review application. His Honour took into account the appellant’s statutory declaration of 1 June 2002, and the affidavit of Joanne Andretich referred to in [14], above. His Honour was clearly concerned that there may have been an erroneous decision on the part of the RRT, having regard, in particular, to the document certifying, on its face, that the appellant was born in 1979 and was an Iraqi national. His Honour considered the submissions advanced by Ms Price, who appeared for the appellant before the Magistrate, that the RRT:

"a) failed to consider the applicant’s request made shortly after the hearing for a reasonable extension of time to produce documents, being documents which the applicant had represented to the RRT would assist it in the determination of his application;
b) made a critical finding of fact that the applicant was not an Iraqi national when documentary evidence, which the applicant was in the course of obtaining and wanted to put before the Tribunal to establish that he was a national of Iraq and not an Iranian national, was available;

c) received, questioned the applicant about and assessed a document that was subject to legal professional privilege when that privilege had never been waived by the applicant;

d) took into account irrelevant material being the claim of the witness that he had disclosed his position on arrival in Australia;

e) failed to consider the case put by the applicant that he was an Iraqi national deported to Iran from Iraq and persecuted in Iran, and had signed a document on his departure from Iran denying any right to return to Iran."

20 However, the Magistrate rejected these submissions. His Honour noted that requests for a fifteen day extension of time were made on 5 September 2001, and that in fact, fifteen days elapsed between the making of this request and the RRT decision. He noted the fact that time was allowed for the making of further submissions. He also noted that there had been no response to the RRT’s request of 7 September 2001 for information about the additional documents referred to in the request for an extension and the way in which it would assist the appellant’s case. The Magistrate observed that it was possible that the appellant may have had difficulty receiving correspondence in the detention centre, especially by facsimile, as counsel for the appellant pointed out. The relevant passages from his Honour’s decision, which encapsulate the approach that he took, are as follows:

"16. In order for there to be a finding of procedural unfairness in law, there must be procedural unfairness in fact: Re Minister for Immigration; ex parte Lam [2003] HCA 6. I find that there was no procedural unfairness in the way in which the RRT dealt with the extension of time request.
17. In addition to the particulars of procedural unfairness provided in the application, Ms Price submitted at trial and in her written submissions in reply that the applicant was given an inadequate time to respond to a s.424A notice sent to him on 27 August 2001 (court book, page 82). That notice was sent only two days before the hearing before the RRT. Mr Macliver submits that the applicant was able to respond to that notice not only at the RRT hearing, but also in written submissions after the RRT hearing and that approximately one month was available to respond. In addition, Mr Macliver has pointed out that the issue of nationality was known to be crucial to the outcome of the applicant’s application to the RRT, following the decision of the delegate. I accept that submission. Although the time given to the applicant to respond to the s.424A notice was short, it was adequate in the circumstances.
18. Thirdly, the application asserts that the RRT made a critical finding of fact that the applicant was not an Iraqi national when documentary evidence, which the applicant was in the course of obtaining and wanted to put before the RRT to establish that he was a national of Iraq and not an Iranian national, was available. The critical finding of fact made by the RRT appears on page 104 of the court book. The presiding member stated:
I am not satisfied that the applicant is an Iraqi national as he has claimed. In relation to this, I consider it significant that when he arrived in Australia the applicant identified himself as an Iranian citizen, stated that he was born in [a place] in Iran, stated that he used a genuine Iranian passport en route to Australia and that he had a document exempting him from military service in Iran because he had been responsible for the care of his brothers.

19. The RRT rejected the explanation offered by the applicant about the change in his claims (advice from other asylum seekers and fear of being returned to Iraq leading to an initial false claim) and rejected the subsequent inconsistent claims made by the applicant. It is true that the applicant had put the RRT on notice, through his solicitors, that further documentation was anticipated which might assist the RRT. However, neither the applicant nor the solicitors responded to the request from the RRT case officer for information about what the documents were or how they would assist. There was nothing before the RRT to indicate that further documents might become available to help specifically in determining the nationality of the applicant. It appears from the applicant’s statutory declaration and the affidavit of Ms Price that the applicant received a copy of the purported letter from the Mayor of [a place in Iran] within days of the RRT decision. A translation of that letter, provided by Ms Price, shows that the letter purports to be a statement from the Mayor confirming that the applicant is a national of Iraq and that he was required to surrender his Iranian green card when he left Iran. In addition, since then, the applicant has provided to Ms Price the following:
a) a card purporting to come from the Office of Migrants and Foreign National Affairs, Iran, which has been translated and which purports to be an identity card for the applicant’s father identifying him as an Iraqi national born in Karbila;
b) a purported identity card issued in Iraq which has been translated and purports to show that the applicant’s father was identified by the Iraqi authorities as an Iraqi national;

c) a certificate in support from a mosque in Iran;

d) an extract from a passport; and

e) an identity document from an organisation in Germany.

20. All of these materials on their face support the proposition by the applicant that he is an Iraqi, not an Iranian. He comes from an area close to the border between Iran and Iraq and the area has historically been disputed between the two countries. The applicant asserts that he was born in what is now Iraq but that at the start of the war between Iran and Iraq he and the rest of his family were deported from Iraq to Iran. People of Arab ethnicity live on both sides of the border and nationality is sometimes difficult to determine. While all of the documents referred to provide support for the applicant’s claim of Iraqi nationality, none of them were put before the RRT and none could be said to be available before the RRT made its decision. The failure on the part of the applicant and his legal advisers to give any information to the RRT about what documents might become available means that the RRT was left in the dark. The decision by the presiding member on the nationality of the applicant may well be factually wrong. However, in the light of the inconsistency in the statements about nationality made by the applicant, the presiding member was entitled to draw the conclusions that he did on the material that was available to the RRT at the time.

...

30. Ms Price also submits that the decision of the RRT is unsafe on the question of nationality. I accept that the decision could well be wrong, in the light of the additional documentary material produced by the applicant since the RRT decision. However, that possibility cannot support a contention that the RRT has made an error of law going to jurisdiction. The finding on nationality made by the RRT was reasonably open to it at the time it was made on the basis of the material that was available. I conclude that he applicant has failed to satisfy me that the RRT proceedings are vitiated by jurisdictional error. In addition, the Hickman provisos are plainly satisfied. The RRT decision is therefore protected from judicial review by s.474 of the Migration Act. Accordingly, I will dismiss the application.
31. I remain concerned that the decision of the RRT on the critical issue of nationality could well be wrong. The additional documentary material produced by the applicant should be properly assessed. I will, therefore, recommend to the Minister that he considers substituting a more favourable decision for that of the RRT. ..."
SUBMISSIONS ON APPEAL

21 The appellant submits that the RRT did not allow reasonable time for the appellant to establish nationality after the service of the notice under s 424A of the Act. The appellant also submits that no response was given to the application for an extension of time, in circumstances where the evidence indicated there was material, which could have been obtained, which would have materially affected the RRT decision.

REASONING ON APPEAL

22 The submission that inadequate time was given for a proper response to the notice under s 424A, must be considered within the context of the matter.

23 It must have been evident to the appellant for a considerable time before the s 424A notice was issued that nationality was a central issue, and that it was important to prepare material and evidence to support his contention of Iraqi nationality. The appellant asserts Iraqi citizenship in his statutory declaration of 1 June 2001. The Ministerial delegate determined on 27 June 2001 that he was not satisfied that the appellant was a citizen of Iraq, and the appellant had an opportunity after this time to gather all material information about his nationality. In addition, after the RRT hearing on 29 August 2001, the appellant had an opportunity, up until 5 September 2001, within which further submissions could have been made to the RRT.

24 Section 424A requires that the applicants are given an invitation to comment on the contents of a statement by the RRT, regarding the information that the RRT considers pivotal in affirming the decision that is under review. There is no requirement that an applicant must be given an opportunity to gather material in order to deal with the information given in notice issued pursuant to s 424A. However, as it turns out, the appellant had until at least 20 September 2001 within which to deal with the information. Admittedly, the time between the notice and the hearing was extremely short, but for practical purposes the appellant had both sufficient notice and time within which to bring relevant material before the RRT .

25 The appellant pointed to the fact that the RRT did not provide a definitive response to the application for an extension of time. In this respect, it is important to note that a period of fifteen days elapsed between the request and the date on which the RRT decision was handed down. The appellant made no attempt to respond to the request for additional information that the RRT made on 7 September 2001. In these circumstances, it was not unreasonable or unfair for the RRT to make the decision on the evidence which was available to it at the time.

26 It is correct that, if the additional information was known to the RRT after it made its decision, it could have materially affected the result. This is reflected in the concern expressed by the Magistrate, in at least three places in the decision, that the conclusion of the RRT, having regard to the additional material, may well have been wrong in fact. Nevertheless, it is clear, on accepted principles of judicial review, that the decision of the RRT is generally to be addressed at the time when it made the decision, having regard to material which was before it at that time.

27 In the present case, there has been no lack of procedural fairness on the part of the RRT in dealing with the matter and handing down its decision.

28 The appellant was given an opportunity to make further submissions and there does not appear to have been any limitation on the nature of these additional submissions. Moreover, as a matter of fact, if the time had been granted the application would have expired at about the date of the decision. The material obtained by the appellant was not brought to his attention until 25 September 2001, and no action was taken to bring the material to the attention of the RRT, or the Department, for some considerable time thereafter. This is understandable, having regard to the fact that the appellant was in detention, but the fact remains that the RRT did not act unfairly.

29 The appellant also submitted that the RRT’s finding that he was an Iranian national was an erroneous finding that affected the proper exercise of its statutory power and therefore amounts to jurisdictional error.

30 The appellant refers to the decisions in Craig v South Australia (1995) 184 CLR 163 at 179, where the Court said:

"... If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."

31 This principle was applied by the Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351.

32 In the present case, it has not been shown that there is any error of law which caused the RRT to make an erroneous finding or to reach a mistaken conclusion. Nor is there any finding that the RRT erred on the material before it in coming to the conclusion that the appellant was an Iranian national. For the reasons given above there was no unfairness in the circumstances in which the RRT reached its conclusion on the question of nationality.

33 This Court concludes that the RRT did not fail to afford procedural fairness to the appellant and is not satisfied that there has been any jurisdictional error. We consider that no ground has been established demonstrating error on the part of the Magistrate.

34 Accordingly, the appeal should be dismissed.

35 However, this Court shares the concern of the learned Magistrate that in the present case, the process may have miscarried, having regard to the additional material which has been placed before the Magistrate and before this Court. As noted above, this is material that could substantiate the appellant’s case. However, due to a combination of circumstances, and apparent communication difficulties, the material did not come to the attention of the RRT. This is not a case where an applicant has suggested that time is required to obtain the material that would be of doubtful assistance to the appellant. In this case, the material is clearly relevant and important. This is a circumstance in which it is appropriate for the Minister to consider the exercise of the discretion under s 417 of the Act to substitute a more favourable decision.

36 The orders of the Court are that the appeal be dismissed. The Court does not consider this an appropriate case in which to make an award of costs.


I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, R D Nicholson and Emmett.



Associate:



Dated: 23 December 2003




Counsel for the Appellant: L B Price (Pro Bono)



Counsel for the Respondent: P R Macliver



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 20 November 2003



Date of Judgment: 23 December 2003
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