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MIGRATION - application for protection visa - whether primary judge erred in finding no reviewable error by Refugee Review Tribunal in relation to degree of detail required in application for protection visa, or in failing to put to the applicant its view of the lack of such detail in the application and invite him to respond.

VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120

VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 (10 May 2002)
Last Updated: 11 July 2002


FEDERAL COURT OF AUSTRALIA
VAAM v Minister for Immigration and Multicultural Affairs

[2002] FCAFC 120


MIGRATION - application for protection visa - whether primary judge erred in finding no reviewable error by Refugee Review Tribunal in relation to degree of detail required in application for protection visa, or in failing to put to the applicant its view of the lack of such detail in the application and invite him to respond.

Migration Act 1958 (Cth), s 424A

VAAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V1294 of 2001

CARR, MOORE & MARSHALL JJ

10 MAY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V1294 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
VAAM

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT


JUDGES:
CARR, MOORE & MARSHALL JJ


DATE OF ORDER:
10 MAY 2002


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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
V1294 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
VAAM

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
CARR, MOORE & MARSHALL JJ


DATE:
10 MAY 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
THE COURT:

INTRODUCTION

1 This is an appeal from a decision of Merkel J given on 3 December 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which, on its face, says that it was made on 29 January 2001 but "handed down" on 20 February 2001. The Tribunal affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act").

2 The background to this matter is described in the reasons for judgment of Merkel J. It is not necessary to set it out again. It is sufficient to note that, in his application for a protection visa, the appellant, a Sikh and a citizen of India, claimed that he feared persecution if returned to that country by reason of his religion, his race and his political affiliations, all of which stemmed from being a Sikh. One of his claims was that, due to his past experiences with the police in India, he has been registered in "the Police Book". He claimed that the danger to a Sikh, so registered, was a continuing one, such that he would not be safe anywhere in India.

3 The Tribunal found that the appellant was not a credible witness and that most of his claims were not credible. It decided that it was not satisfied that the appellant had a well-founded fear of persecution due to political opinion, religion, nationality or for any other Convention reason.

4 As the learned primary judge noted, it is apparent from the Tribunal's reasons that one basis for its disbelief of the appellant was that his claims were "vague and not sufficiently detailed to be believable". This finding was based upon what the Tribunal described as the lack of specificity and detail in the appellant's statement of his claims in his original written application for a protection visa.

5 When the matter first came on for hearing before the primary judge, the only ground of review relied upon by the appellant was that the Tribunal had misunderstood its obligations as including an obligation for an applicant for a protection visa to "make ... specific claims under the Refugees Convention" in the written application. His Honour held that this ground of review had not been made out. He found that the Tribunal, in discharging its function as the arbiter of fact, appeared to view the absence of what it regarded as important detail in the original application as a reason, amongst others, for treating the appellant's claim as implausible. The appellant's challenge to the Tribunal's adverse credibility findings was, so the primary judge held, a claim that the Tribunal gave undue weight to the lack of specificity and detail in the appellant's original statement of claim. His Honour found that that was a question of fact rather than of law.

6 In grounds 2(b), (c) and (d) of the notice of appeal the appellant contends that the primary judge erred in law in reaching that conclusion. The grounds assert error on the Tribunal's part, in interpreting and applying the law, error of law in having regard to an irrelevant matter and error of law in failing properly or at all to have regard to a relevant matter being what was said to be the applicant's compliance with the requirement to provide details of his claims. The grounds also assert error of law by the primary judge in not making findings to that effect.

7 The appellant submitted that the Tribunal was not entitled to draw the particular adverse inferences which it had drawn in this matter if the appellant had, when completing his application for a Protection Visa, complied with the Act and the Migration Regulations. The appellant also submitted, additionally or in the alternative, that the Tribunal had erred in not having proper regard to the level of detail required by the Act and Regulations. These errors, so counsel for the appellant submitted, amounted to error of law or jurisdictional error or both.

8 In our view, neither the Tribunal nor the primary judge made any of the errors asserted by the appellant. For the reasons given by his Honour in paragraphs [7] to [8] of his reasons, we consider that these grounds have not been made out.

9 During the course of the initial hearing before the primary judge, an issue arose about whether the Tribunal's reliance, in its reasons, on information contained in the appellant's original application form revealed that the Tribunal had acted in breach of s 424A of the Act in that the Tribunal may have failed to provide particulars of that information to the appellant and to request his response to it in the manner required by that section. The appellant was granted leave to amend his application to add an appropriate ground of review. He did so and the hearing of the matter was adjourned to enable the parties to make further submissions in relation to the operation and applicability of s 424A.

10 Section 424A, in its form at the relevant time, provided:

"(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."

11 The appellant's complaint at first instance, and before us on appeal, was that the Tribunal was in breach of s 424A by failing properly or at all to give him particulars of information in relation to the degree of detail of the appellant's initial claims for a protection visa and the view which the Tribunal took of that degree of detail.

12 Counsel for the appellant submitted that it was manifest that the Tribunal formed the view that information previously given by the appellant to the respondent's Department did have an adverse bearing upon the application for review. Accordingly, so it was submitted, the Tribunal was obliged to follow the procedures of s 424A, but had not done so. Thus an important element of natural justice, codified in s 424A, was not provided to the appellant.

OUR REASONING ON THE S 424A GROUND

13 His Honour reviewed the authorities in relation to the obligations of a Tribunal under s 424A when it proposes to rely upon information provided by an applicant at an early stage of the application procedures as being inconsistent with later statements. The essence of the primary judge's conclusion can be found in paragraph 25 of his Honour's reasons, part of which reads as follows:

"The present case, however, is not concerned with earlier inconsistent statements; it is concerned with a perception (on the part of the RRT) of a lack of specificity and detail in the earlier statements. In those circumstances the complaint of the applicant is not in respect of the failure to provide particulars of information set out in the original application form. Rather, the complaint is about the information that was not set out in the original application form. Thus, the Minister is correct in contending that the information "in question in the present case is the subjective appraisal or thought process of the RRT in determining that the information provided by the applicant in his original application lacks specificity and detail". Put another way, it is the RRT's qualitative assessment of the information provided in the original application form, rather than its content, that was a reason for the RRT affirming the decision of the delegate of the Minister. As was explained by Sackville J in Tin [a reference to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109] at [53]-[54] and by Allsop J in Paul [a reference to Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196] at [95] the reaches of s 424A do not extend to embrace that kind of "information"."
14 His Honour, in essence, found that the appellant's complaint was that the Tribunal had not given to him particulars of its thought processes relating to information that had not been provided in the original application. Accordingly, there had been no contravention of s 424A.

15 It may be accepted that if s 424A provided the only means of alerting an applicant to the use that might be made of the original application for a visa as revealed in this matter, it would not be construed narrowly. However the Tribunal is required to afford procedural fairness (though a failure to do so was not intended to be amenable to judicial review: see s 476(2)(a)) and would thus be required to raise with the applicant, if a hearing is conducted, those parts of the application for a visa from which adverse inferences might be drawn. Whether, as a matter of fact, the Tribunal did so comprehensively in this case is irrelevant given that s 424A had no application for the reasons given by the primary judge.

16 In our view, his Honour's conclusion that the Tribunal had not contravened s 424A was correct and in accordance with the authorities which he cited. Neither the Tribunal nor the primary judge, in our opinion, erred in law.

17 For the foregoing reasons, the appeal will be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 10 May 2002

Counsel for the Appellant:
Mr A Krohn






Solicitor for the Appellant:
MSC Legal Services






Counsel for the Respondent:
Mr P R D Gray






Solicitor for the Respondent:
Messrs Clayton Utz






Date of Hearing:
7 May 2002






Date of Judgment:
10 May 2002


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