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MIGRATION - refusal of protection visa - appeal - particulars provided to applicant in respect of evidence from gymnasium proprietor - no jurisdictional error for failure to provide particulars under s 424A of the Migration Act 1958 (Cth) as applicant was fairly informed of the information considered to be adverse - provision of evidence not required - no breach of natural justice as applicant had opportunity to deal with the particulars - evidence from Iranian community not sufficiently operative in the mind of the Tribunal to require giving of particulars - no breach of natural justice as appellant was aware of the matters put against him

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

NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 (28 May 2003)
Last Updated: 29 May 2003


FEDERAL COURT OF AUSTRALIA
NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112


MIGRATION - refusal of protection visa - appeal - particulars provided to applicant in respect of evidence from gymnasium proprietor - no jurisdictional error for failure to provide particulars under s 424A of the Migration Act 1958 (Cth) as applicant was fairly informed of the information considered to be adverse - provision of evidence not required - no breach of natural justice as applicant had opportunity to deal with the particulars - evidence from Iranian community not sufficiently operative in the mind of the Tribunal to require giving of particulars - no breach of natural justice as appellant was aware of the matters put against him

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 424A

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 cited

NATL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1259 OF 2002

RYAN, FINKELSTEIN and DOWNES JJ

28 MAY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1259 OF 2002




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NATL


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS




JUDGES:
RYAN, FINKELSTEIN AND DOWNES JJ


DATE OF ORDER:
28 MAY 2003


WHERE MADE:
SYDNEY











THE COURT ORDERS:

Appeal dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1259 OF 2002




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NATL


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS




JUDGES:
RYAN, FINKELSTEIN AND DOWNES JJ


DATE:
28 MAY 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT

1 The appellant is a national of Iran. He applied for a protection visa on 21 May 1998. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application on 8 January 1999. The decision was affirmed by the Refugee Review Tribunal. That decision was set aside in the Federal Court of Australia and the matter remitted to the Tribunal. The matter was heard again in the Tribunal on 16 February 2001. The Tribunal further affirmed the decision not to grant a protection visa by a decision dated 24 July 2002 which was handed down on 6 August 2002.

2 The appellant instituted proceedings under s 39B of the Judiciary Act 1903 (Cth) for review of the second decision of the Refugee Review Tribunal. The application was heard by Wilcox J who dismissed it on 8 November 2002. The appellant has appealed to the Full Court.

3 The appellant claims to have a "well founded fear of being persecuted" which satisfies the requirements of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The appellant's claims are based on his alleged political opinion, his religion and his race. He claims to be at risk in connection with his political opinions because of his association with an uncle who had been held in prison for twelve years. So far as religion is concerned he asserts that he associated with Christian friends and had attended a Christian church in Iran. His claim to risk of persecution because of race is associated with his assertion that he is an Azari and that Azaris are persecuted in Iran. He also claims to have converted to Christianity and joined a church in Australia.

4 The Refugee Review Tribunal examined all of these claims in great detail. The reasons for decision of the Tribunal cover some 49 pages. The Tribunal rejected all of the appellant's claims. The Tribunal did not believe the appellant and held that he had fabricated the claims. It is apparent that the Tribunal's conclusion was based primarily upon its assessment of the evidence of the appellant as well as upon a review of a great deal of other evidence. No single piece of evidence assumed special significance in the deliberations of the Tribunal.

5 The application to this Court, as appears from the amended application dated 28 October 2002, was based on two grounds. The first was that the Tribunal's decision was vitiated by jurisdictional error because it failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth). The second was that the Tribunal did not accord the appellant natural justice and procedural fairness. The particulars given of both grounds were the same and were as follows:

"Particulars

a) The Tribunal sent the applicant a letter (under s 424A) dated 15 February 2002. With regard to the adverse information in this letter the Tribunal:-

1) did not provide the name of the person referred to as "the "proprietor of Thunderlegs Martial Arts centre".

2) did not state at which of the gymnasiums (Seven Hills or Guilford), or whether it was at both gymnasiums that the applicant:-

i) was alleged to have trained at for almost two years.

ii) "organised other Muslims in the gymnasium to say prayers"

3) did not state which gymnasium it was referring to when the Tribunal said that it was alleged the applicant was "asked to leave the gymnasium forever".

4) did not state to whom it was known that the applicant had "harassed Christian members of the gymnasium who were of middle eastern background to become Muslims".

5) did not tell the applicant who it was the Tribunal had contacted on 10 June 1999 other than to say that the person was the "proprietor of the Thunderlegs Martial Arts centre".

6) did not tell the applicant whom it was the Tribunal had contacted on 5 February 2001 other than to say that the person was the "proprietor of the Thunderlegs Martial Arts centre".

b) The Tribunal did not provide the applicant with the name or other details of the "Iranian community organisation" who had provided "evidence" that was adverse to the applicant (see page 187 of the Relevant Documents)."

6 In an affidavit in support of the application the appellant explained the matters giving rise to his claim as follows:

"5. The Tribunal in its Reasons for Decision (dated 24 July 2002 and handed down on 6 August 2002) stated that the adverse information put to me included "evidence before the Tribunal suggesting that an Iranian community organisation did not support (my) claims" (see page 187 of the Relevant Documents) I was never told who this organisation was and was never provided with any information that would allow me to identify precisely what was said about me and who said it, and thereby enable me to meet this adverse information.
6. On or about 16 February 2001 The Refugee Review Tribunal ("the Tribunal") provided me with a letter dated 15 February 2001 under s424 of the Migration Act 1903 ("the s424 letter"), a copy of which is provide at page 134 of the Relevant Documents."

7 The reference to the Tribunal's reasons for decision at "page 187 of the Relevant Documents" appears to be a reference to paragraph 91 of the reasons of the Tribunal which is as follows:

"The applicant was informed that there was evidence before the Tribunal suggesting that an Iranian community organisation did not support his claims. The applicant was informed that members of the Iranian community, whose names are set out below, had signed a letter to the Tribunal stating that he was a strong believer in Islam and that he was in no danger in Iran."
8 Although the reasons refer to the names of the relevant members of the Iranian community being "set out below" the context of the decision shows that they were in fact set out above, in paragraph 44 of the decision, which is as follows:

"44. A letter signed by a number of Iranian Australians was received by the Tribunal on 29 May 1999. The signatories stated that the applicant wanted to obtain refugee status in Australia through lies and deception, that he was a strong believer in Islam regardless he claimed he had converted to Christianity and would be killed if he returned to Iran, that his life was safe in Iran and he did not have any problems that might put his life in danger if he goes back to Iran. They accused the applicant of misusing the humanitarian processes in Australia to obtain residency. The letter was signed by Jamal Ghoreanisisan, B. Albertiasl, R. Yousefi and Rasul Roll."

9 The letter dated 15 February 2001 is as follows:

"Refugee Review Tribunal

...

18 February 2001

Dear ...

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 part of the reason, for deciding that you are not entitled to a protection Visa.

The Tribunal has received information that you have not genuinely converted from Islam to the Christian faith. The proprietor of Thunderlegs Martial Arts centre has indicated that you attended and trained at the Thunderlegs gymnasium in Sevenhills and Guildford for a period of almost two years up until May 1999. During that time you were know to be of the Muslim faith, as you, along with other Muslims at the gymnasium, practiced your religion before and after classes on many occasions. You were known to the proprietor to be of an aggressive manner and you were asked to leave the gymnasium forever because you were incapable of changing your ways despite the discipline of martial arts. You were also known to have harassed Christian members of the gymnasium who were of middle eastern background to become Muslims. You organised other Muslims in the gymnasium to say prayers.


Why this information is relevant to the review:

The information raises issues in relation to the credibility of your claims to have converted from Islam to Christianity.


How should the Applicant comment on the information?

Interview [X] Following the Tribunal hearing of 16 February 2001."

10 Section 424A of the Migration Act 1958 is in the following terms:

"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.

(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."

11 The appellant appeared before us in person. His submissions broadly addressed the subject matter of the grounds of his application but they did not address them in a way that might assist his appeal. For example, he maintained that he had not attended the Thunderlegs Gymnasium for more than two months. This was a submission which had been put to the Tribunal and rejected (par [151]). Its only relevance on an appeal could be in aid of the case made that the failure to furnish more information relating to the Thunderlegs Gymnasium was a breach of s 424A of the Migration Act 1958 or a denial of natural justice. It might, for example, assist an argument that the failures relied upon were significant.

12 In the circumstances we have not concerned ourselves primarily with addressing the matters put to us orally, which could not alone result in the appeal being upheld. We have looked at the issues raised in the original application in the context of the claims which were made in the hearing before us.

13 We think that the Tribunal's letter of 15 February 2001 adequately deals with the identity of the gymnasiums with which it was concerned. It identifies both the gymnasium at Seven Hills and the gymnasium at Guildford as being covered by the particulars. There is no substance in the appellant's claims set out in a) 2, 3 and 4 of the particulars. That leaves particulars a) 1,5 and 6. The common element in each of these claims is the failure of the letter to identify a person. In each case the person is described in the letter as "the proprietor of the Thunderlegs Marshal Arts centre".

14 The obligation imposed by s 424A of the Migration Act 1958 is to "give ... 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...". The significant phrase is "particulars of any information". The section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396. We think that identifying an informant by describing the person as the proprietor of a specified establishment is an adequate provision of particulars relating to that person.

15 We note that the first decision of the Tribunal was set aside because no notice under s 424A of the Migration Act 1958 was given identifying the name of the gymnasium. Hill J. left open the question of whether the name of the informant should be given, saying: "it must be doubted whether the name of the writer of the letter would fall within the category of relevance to which I have referred."

16 We do not think that any of the particulars under s 424A of the Migration Act 1958 with respect to the letter of 15 February 2001 are made out. Nor do we consider that the failure to supply the further information raised in the particulars gives rise to any claim that the applicant was denied natural justice or procedural fairness. The appellant had every opportunity to deal with the particulars with which he was provided which adequately put him on notice of the concerns of the Tribunal. We also bear in mind that the material referred to in the letter of 15 February 2001 was only a small part of the matter which the Tribunal dealt with in its reasons.

17 We turn to deal with the second matter raised in the appellant's particulars, namely that the Tribunal did not provide the appellant with the name or details of the Iranian organisation which had provided adverse evidence. As appears above the relevant material is set out in paragraph 44 of the Tribunal's reasons for decision. It does not appear that any notice under s 424A was given with respect to this material. However, reading the reasons for decision as a whole, we do not think that this material was sufficiently operative in the mind of the Tribunal to give rise to any obligation to give particulars under s 424A. It does not seem that the Tribunal considered that it was necessary for it to give any such notice with respect to this material although it is apparent that it did address that issue with respect to the material covered by the letter of 15 February 2001. Nor do we think that the rules of natural justice or procedural fairness required the information to be given to the appellant. The appellant was well aware of the matters that were put against him. If he had any doubts about this at the time of the first hearing before the Tribunal there can be no doubt that he was aware of the issues by the time of the second hearing before the Tribunal which is the hearing that led to the decision under review.

18 The Appeal must be dismissed with costs.

I certify that the proceeding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Finkelstein and Downes.

Associate:

Dated: 28 May 2003

Counsel for the applicant: The applicant appeared in person

Counsel for the respondent: T Reilly

Solicitor for the respondent: Australian Government Solicitor

Date of Hearing: 26 May 2003

Date of Judgment: 28 May 2003
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