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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse a protection visa - whether the RRT breached s.424A of the Migration Act 1958 - whether a breach of s.424A is protected by the privative clause in s.474(1).

NASQ v Minister for Immigration [2002] FMCA 305 (27 November 2002)

NASQ v Minister for Immigration [2002] FMCA 305 (27 November 2002)
Last Updated: 3 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASQ v MINISTER FOR IMMIGRATION
[2002] FMCA 305



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse a protection visa - whether the RRT breached s.424A of the Migration Act 1958 - whether a breach of s.424A is protected by the privative clause in s.474(1).



Administrative Decisions (Judicial Review) Act 1975 (Cth), s.5

Migration Act 1958 (Cth), ss.424A, 474

NAAV v Minister for Immigration [2002] FCAFC 228

NAAX v Minister for Immigration [2002] FCA 263

QAAD v Minister for Immigration [2002] FCA 1038

Re Minister for Immigration; ex parte "A" (2001) 185 ALR 489

SCAZ v Minister for Immigration [2002] FCA 1377

Applicant:
NASQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ708 of 2002



Delivered on:


27 November 2002



Delivered at:


Sydney



Hearing Date:


27 November 2002



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Mr J Young



Solicitors for the Applicant:


Mel Newman & Associates



Counsel for the Respondent:


Mr D Jordan



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) The application is dismissed.

(2) Costs of the application are reserved, with liberty granted to either party to apply for a costs order on 7 days notice, following a decision by the High Court on the validity of the privative clause in s.474 of the Migration Act 1958 (Cth).

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ708 of 2002

NASQ


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 27 June 2002 and handed down on 23 July 2002. The RRT affirmed a decision of the respondent Minister not to grant the applicant a protection visa.

2. The applicant is a citizen of Nepal who held the rank of Colour Sergeant in the Ghurkas, serving in the British army. His claims to a protection visa centred upon an assertion that after he retired from the British army on 14 November 2000 and returned to Nepal, he was harassed by communist Maoist insurgents who demanded money and his assistance in support of the Maoist insurgency. The applicant provided some documentary material in support of his claims. Notably, this included an article from the Christian Science Monitor on 15 May 2001 which stated in part that some Maoist units are reported to be forcing returning Ghurka soldiers to train local militants in exchange for a promise not to harass their families. The article also quoted a statement from Lt Col Adrian Griffith, Chief of Staff, British Ghurka headquarters in Kathmandu relating to Ghurka pension benefits (court book, pp118-119).

3. After the hearing before the RRT, a senior researcher, on behalf of the presiding member, sought information from Lt Col Griffith about that assertion. Lt Col Griffith provided a response which the RRT used in its reasons (court book, p109):

The Tribunal sought information from the Chief of Staff of the British Ghurkas in Nepal, Lieutenant Colonel Adrian Griffith. He authorised the Tribunal to disclose that he was the source of the following information. He stated that he was able to give his opinion on the issues raised by the Tribunal based on his experiences living and working in Nepal for the last 21 months. They were not an official view. In response to specific questions posed by the Tribunal he said that he had not heard of any ex British Ghurkas being targeted by the Maoists because of their military knowledge and it was thought "unlikely" that any had been. There was anecdotal evidence which he had seen in newspapers and heard when in the hills that if an individual refused to assist the Maoists he was normally punished. This may mean he had to leave the area or might involve beatings. The Maoists did also execute people although it appeared the grounds for this were normally political. If an individual came under pressure from the Maoists it was Lt Col Griffith's opinion that he would be unlikely to obtain protection other than from his family and friends. However a person was relatively safe in Kathmandu although the Maoists were active there too and almost certainly could target someone.

4. The ground of review advanced by the applicant is that the RRT breached s.424A(1) of the Migration Act 1958 (Cth) ("the Migration Act") by failing to give him the opportunity to comment upon the information provided by Lt Col Griffith. Mr Young submits on behalf of the applicant that this breach of s.424A of the Migration Act vitiates the decision of the RRT, notwithstanding the privative clause contained in s.474(1) of the Migration Act.

5. Mr Jordan, for the respondent Minister, submits that no breach of s.424A was committed by the RRT and, even if that section had been breached, the breach would be protected by the privative clause.

Consideration and reasons

6. I have considered first whether s.424A has been breached and, if so, whether that breach would render the decision of the RRT invalid in the absence of the privative clause. It is not disputed that the applicant was not given the opportunity to comment on the information obtained from Lt Col Griffith. However, Mr Jordan submits first that the circumstances are covered by the exception to s.424A(1) provided in s.424A(3). That sub section relevantly provides as follows:

(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

7. Mr Jordan submits that the information obtained by Lt Col Griffith was not information specifically about the applicant or another person and is just about a class of persons of which the applicant is a member. Lt Col Griffith was asked to provide information about the potential for returning Ghurka soldiers to be harassed by the Maoist insurgents. The applicant is clearly a member of that class but he was not mentioned in the request for information or in the information provided by Lt Col Griffith. Nevertheless, the request to Lt Col Griffith was made in the light of the important claim made by the applicant about what he says happened to him. The approach to Lt Col Griffith appears also to have been made in the light of the reference to him in the Christian Science Monitor article relied upon by the applicant.

8. Section 424A(3) exempts country information from the obligation imposed by s.424A(1). There is no dispute that the RRT is entitled to have regard to its country information resources free from the obligation to give an applicant the opportunity to comment. However, I do not read s.424A(3) as permitting the RRT to make inquiries specifically arising out of allegations made by the particular applicant and materially determinative of his claims free from the obligation to afford an opportunity to comment on the result of those inquiries. If s.424A(3) had the operation contended for by Mr Jordan the RRT would be freed from any obligation arising from s.424A(1), simply by couching its inquiry in general terms, without specific reference to the applicant. I also note that in Re Minister for Immigration; ex parte "A" (2001) 185 ALR 489 at [48] Kirby J suggested that it is possibly arguable that s.424A(3)(a) should be narrowly construed so that at least some country information should be the subject of a notice under s.424A(1). His Honour von Doussa J considered that question in SCAZ v Minister for Immigration [2002] FCA 1377 at [26] but he did not resolve it.

9. I accept Mr Young's submission that the word "just" in s.424A(3)(a) is significant. It means "only". In this matter the information sought and obtained from Lt Col Griffith was not only about a class of persons of which the applicant is a member. It was also about the applicant, specifically because the inquiry was made as a direct result of the claims made by the applicant about his own experiences. I find that the RRT should have given notice to the applicant under s.424A(1).

10. Mr Jordan next submits that the failure to give notice under s.424A(1) does not matter because the information provided by Lt Col Griffith was not determinative of the protection visa application. I do not accept that submission. The information provided by Lt Col Griffith was not solely determinative of the application but it was given prominence by the RRT and was clearly a material factor in the decision arrived at by the RRT. I accept that the RRT made findings on the credibility of the applicant that were not dependent upon the information provided by Lt Col Griffith, but his information was material to the outcome of the visa application and was a factor of significance.

11. I also raised with Mr Young the question of whether s.424A could provide a ground of challenge to the RRT's decision in the absence of any evidence from the applicant of what material the applicant would have placed before the RRT if he had been given notice under s.424A(1). von Doussa J dealt with that issue in SCAZ at [26] and found that absent some indication of the nature of the opportunity which the applicant says he was denied, any omission by the RRT to disclose information is not material. Mr Jordan submitted that the applicant should have provided affidavit evidence of what he would have done. Mr Young submitted in response that although it would have been better if the applicant had provided affidavit evidence to me about what he could have put before the RRT in response to a notice there is sufficient evidence in the court book to establish how the applicant would have taken advantage of the opportunity to comment if granted. Presumably, the applicant would have asked the RRT to seek information from the author of the Christian Science Monitor article about the Maoist harassment of ex Ghurkas referred to in the article.

I accept that submission. It is apparent from the court book, in particular the Christian Science Monitor article, that the applicant could have made practical use of the opportunity to comment on Lt Col Griffith's information.

12. I conclude that the RRT breached the obligation imposed on it by s.424A(1) by failing to give the notice required by that section in relation to the information provided by Lt Col Griffith. I find that the applicant is not precluded from obtaining relief by reason of his failure to provide specific evidence of what he would have done if notice had been given. I find that the information provided by Lt Col Griffith was partly determinative of the visa application.

13. Mr Jordan pointed out that there is a nice question of whether previous authority relied upon by the applicant as establishing that a breach of s.424A vitiates a tribunal decision remains relevant, given that a breach of s.424A was previously reviewable as a breach of procedure pursuant to s.476(1)(a), which has now been repealed. In my view, that provision, like s.5(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is a restatement of the common law position that a failure to observe a mandatory procedural requirement imposed by law in relation to the making of an administrative decision is a jurisdictional error which will vitiate the decision. The applicant in these proceedings has established that s.424A(1) has been breached. But for the privative clause that breach would invalidate the decision of the RRT as a breach of the requirement imposed by law.

14. The remaining question is whether the privative clause in s.474 of the Migration Act operates to protect the breach committed by the RRT. It is clear from the judgment of von Doussa J in NAAV v Minister for Immigration [2002] FCAFC 228 at [631] and [672] that his Honour takes the view that the effect of the privative clause is to render mandatory procedural obligations on the RRT merely directory. At [674] his Honour states that a breach of such a procedural obligation, if blatant, may constitute bad faith, which is not protected by the privative clause, but otherwise his Honour is clearly of the view that a breach of a range of procedural obligations in Part 7 of the Migration Act, including s.424A, is protected by the privative clause. His Honour restated his position clearly in SCAZ.

15. Mr Jordan submits that there is a majority in support of the position taken by von Doussa J in NAAV and that the Chief Justice adopted generally the approach taken by von Doussa J to the interpretation of s.474, with the exception of the specific issues arising in the cases of Turcan and Wang. One difficulty with that submission is that the observations by von Doussa J about s.424A are obiter. That is because that section could only have been relevant to the appeal in NAAV. That appeal arose from the judgment of his Honour Gyles J in NAAX v Minister for Immigration [2002] FCA 263. It was established in that case that s.424A had not been breached and the case was argued on the basis of common law obligations. NAAV is clear authority for the proposition that a breach of common law obligations of procedural fairness is not reviewable in the face of the privative clause. Mr Jordan submits that it follows from the reasoning in NAAV that if a breach of the higher obligation arising under the common law to observe procedural fairness will not invalidate a decision in the face of the privative clause, then a breach of the much narrower obligation in s.424A must likewise be protected. Conversely, it is arguable that the legislature in s.424A has distilled a core element of the fair hearing rule at common law which must continue to be observed even though broader elements of that rule at common law no longer need to be observed by the RRT.

16. On my reading of the judgments of the Chief Justice and von Doussa J in NAAV, there appears to be majority support for the proposition that many of the formerly mandatory procedural obligations imposed upon the RRT under Part 7 of the Migration Act, including s.424A, are rendered directory by the privative clause. The Chief Justice in NAAV at [4] generally supported the reasoning on von Doussa J, although his approach seems to differ somewhat at [16] and certainly does at [38] in relation to the appeal in Wang. Importantly, the Chief Justice otherwise adopts what von Doussa J says at [625]. It follows, in my view, that s.424A cannot itself be seen to be an inviolable limitation upon the exercise of power by the RRT, although a breach of the section may be relevant to a breach of some other inviolable limitation or restraint. It would follow that a breach of s.424A will be protected from review by the privative clause unless the breach is so blatant that it constitutes bad faith or, alternatively, amounts to a breach of some other provision of the Migration Act which is jurisdictional pre-requisite. I am fortified in that view by the approach taken by her Honour Kiefel J in QAAD v Minister for Immigration [2002] FCA 1038, in particular at [18].

17. In my view, the breach of s.424A committed by the RRT in this matter is not blatant. There is no suggestion of dishonesty on the part of the RRT. There is no suggestion that the RRT deliberately set out to deny the applicant the opportunity to comment on material information. Neither has it been suggested that the RRT was recklessly indifferent to the observance of procedure. The RRT may have been careless. The RRT may have misinterpreted s.424A(3). That does not constitute a blatant breach of the section so as to establish bad faith or a breach of a jurisdictional pre-requisite in the Migration Act.

18. I add, for completeness, that the position is unaffected by s.422B, which was inserted with effect from 4 July 2002. That section establishes a statutory code of procedure to be followed by the RRT but it only applies to applications made to the RRT after the date of commencement of the section. In addition, it is clear from the amending legislation and the explanatory materials relating to it, that Parliament did not intend, by the establishment of a code of procedure, to alter the interpretation of the privative clause.

19. But for the privative clause I would have set aside the decision of the RRT and ordered that the application be returned to the RRT for redetermination according to law. However, the effect of the privative clause is to validate what would otherwise be an invalid decision by the RRT and in the circumstances I must dismiss the application.

20. Having hear the parties as to costs, I will reserve costs pending the outcome of proceedings in the High Court which will determine the validity of the privative clause.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 November 2002
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