FEDERAL COURT OF AUSTRALIA WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266 MIGRATION – application to review decision of Refugee Review Tribunal – meaning of "information" in s 424A(1) of Migration Act 1958 (Cth) – applicant provided "green card" to Tribunal in support of claim for refugee status – contents of green card at variance with evidence given by applicant – whether Tribunal obliged to provide particulars of discrepancies so that applicant may comment upon them – effect of s 424A(3)(b). WORDS AND PHRASES – "information…that the applicant gave for the purpose of the application" – s 424A(3)(b). Migration Act 1958 (Cth) ss 424(1), 424A(1) and 424A(3)(b) Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212,[2001] FCA 56, followed NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1010, approved WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091, approved Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, followed Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32, referred to WAGP OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W 131 OF 2002 MARSHALL, WEINBERG and JACOBSON JJ MELBOURNE (heard in Perth) 13 SEPTEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 131 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAGP OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: MARSHALL, WEINBERG and JACOBSON JJ DATE OF ORDER: 13 SEPTEMBER 2002 WHERE MADE: MELBOURNE (heard in Perth) THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 WESTERN AUSTRALIA DISTRICT REGISTRY W 131 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAGP OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: MARSHALL, WEINBERG and JACOBSON JJ DATE: 13 SEPTEMBER 2002 PLACE: MELBOURNE (heard in Perth) REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of R D Nicholson J in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the RRT") made on 22 August 2001. The RRT affirmed a decision of a delegate of the respondent, on 27 June 2001, not to grant a protection visa to the appellant. 2 The legislation relevant to this appeal is the Migration Act 1958 (Cth) ("the Act") in the form which it took prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Consequently, the appeal does not raise for consideration the "privative clause" provisions introduced with effect from 2 October 2001. Factual Background 3 The appellant entered Australia on 2 November 2000. In his initial interview, on 14 November 2000, he claimed to be an Iranian citizen born in the region of Khuzestan. He gave details of his education, work and military service in Iran and said that he spoke only Persian. He also said that his parents and eight siblings continued to reside in Iran. 4 He claimed that he left Iran because his life was in danger. The reason was that several years earlier a person who had problems with the Iranian government had left a bag with him. After escaping to Iraq that person had returned to collect the bag. Some days later the appellant's house was raided by members of the security forces and he was interrogated. Three days later, when one of his relatives left the home after a visit, carrying a similar bag, the appellant was shot at. 5 In June 2001, approximately seven months after providing that information, the appellant lodged his application for a protection visa, accompanied by a statutory declaration. He now stated that he was a citizen of Iraq and a Shi'ite Muslim. He claimed to have been forced to leave Iraq in 1980, when around three or four years old. He said that his father had told him that the family had been forced to leave Iraq because they were Shi'ite Muslims, with no ancestors in Iraq, and that they had to return to Iran. However, he claimed that Iran did not recognise them as citizens. 6 The appellant further claimed that all the members of his family, including himself, had been issued with green cards. He described the characteristics and use of those cards in detail. He claimed that the green card served the purpose of an identity card, and did not allow him to travel or live outside the designated area of Khuzestan. He also stated that, as an Iraqi, he had no rights in Iran and could not live a normal life. He was constantly in fear of being deported to Iraq. Whenever he had any contact with Iranian government authorities, or the national police, he was told to leave Iran and go back to Iraq. 7 Additionally, the appellant acknowledged, at that stage, that the account which he had given in his initial interview about looking after a bag for a friend had been untrue. The decision of the RRT 8 On 10 August 2001, the appellant attended a hearing of the RRT at which he gave evidence, and answered questions. He stated, in that hearing, that his reason for leaving Iran was that he was continually being given ultimatums to leave that country. He denied having any fears of harm apart from those arising from being an Iraqi living in Iran. Following the hearing, the RRT caused a letter to be sent to the appellant putting two matters to him that would constitute reasons for deciding that he was not entitled to a protection visa. These related to the differences between the account which he gave when first interviewed and the account which he gave some seven months later. 9 In response, the solicitors for the appellant wrote to the RRT explaining that the initial interview had been extremely stressful, and that he had been frightened that if he revealed his real place of birth, and his background, he would be sent back to Iran. That was why he had lied about having been born in Iran. It was also why he had made up the story regarding the bag having been the main reason for his having left Iran, although he now claimed there had been an incident of some sort involving a bag. In support of his claim that he was an Iraqi citizen, the solicitors attached additional information, being translations of the green cards of the appellant and his father. 10 The RRT made the following findings: · the appellant was a national of Iran, and not of Iraq; · the photocopy identity card purporting to be a green card recording his birth in Iraq was not genuine; · his claim that he had received a warning that upon his return to Iran he would be deported to Iraq because of his possession of the bag was false. The Primary Judge's Reasoning 11 The appellant's principal contention before his Honour was that the RRT had failed to afford him an opportunity to make submissions, and to be heard, regarding its finding that the photocopy identity card was not genuine. 12 The obligation of the RRT to give information to an applicant is dealt with in s 424A of the Act. That section relevantly 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) … (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." 13 His Honour concluded that the information relating to the identity card was "about the applicant" and not "just about a class of persons of which the applicant ... is a member". He noted that s 424A(3)(a) would not preclude the operation of s 424A(1). 14 However, his Honour concluded that that information had been given to the RRT by the appellant for "the purpose of the application", and therefore fell within the ambit of s 424A(3)(b). He found that the information had been forwarded to the RRT by the appellant's advisers in response to the letter from the RRT inviting comment upon the matters that were of concern to that body. The letter was sent "for the purpose of the application", within the meaning of s 424A(3)(b), although it was sent after the hearing had been completed. 15 Accordingly, his Honour found that s 424A had no application and did not require the RRT to give to the appellant particulars of any inferences that it considered might be drawn from the information which he had provided, or to comment on that information. His Honour found that, even if it could be argued that s 424A did not preclude the common law rules of natural justice, no ground of review under s 476(1) could arise in relation to a breach of the common law in that respect having regard to the provisions of s 476(2)(a). 16 There were a number of other grounds argued by the appellant before his Honour, but they were held to be devoid of any merit. Submissions on appeal (other than on s 424A) 17 The appellant was unrepresented on the appeal on all issues other than what we describe below as the s 424A issue. Understandably, he was not able to articulate grounds identifying errors of law which might assist him. In substance, the only argument which he advanced was that the RRT had erred in finding that he was Iranian, and not Iraqi. The s 424A issue 18 At [8] of his reasons for judgment the primary judge referred to the appellant's claim that he and his family had been issued with a green card. His Honour reproduced the two relevant paragraphs of the appellant's claim which dealt with the green card. They were as follows: "7. All our family including myself were issued with a green card. The green card is a green colour with black writing. There is a photo in the top left hand corner with a seal over the photo. The official signature is in the bottom left hand corner. There are two serial numbers on the bottom left and right sides. The personal details are on the front of the card. The symbol of Iran is in the top middle. There are two diagonal lines across the card from the top right corner to the bottom right corner, but do not extend all the way to each corner. On the back is the date of renewal. I was issued one when I was a young child and it was renewed when I was a teenager. 8. The green card did not allow me to travel or live outside the designated area of Khuzestan. If anyone wanted to go outside the province, one had to obtain permission from the government office. The green card was used as an ID card. In the four years I was studying in the mosque the basiji and other government organs often checked my green card because I went home at night. It was normal for the government to check identity cards for all persons." 19 At [14] the primary judge observed, inter alia, that the RRT made the following finding: "(ii) The Tribunal was unable to accept that the photocopy identity card purporting to be that of the applicant is a copy of a genuine card issued to him by the Iranian authorities. The Tribunal was not satisfied that either photocopy identity card was that of a green card issued to the applicant or his father." 20 At [19] his Honour referred to five matters which led the RRT to its conclusion not to accept the appellant's green card as a genuine document. Three of the five listed matters are relevant to submissions advanced on behalf of the appellant. Those three matters are: · "(t)he document showed the date of issue as '20/8/2000' whereas in his evidence he had said that his green card was issued when he was a child and renewed when he was a teenager (he being aged 25 years of age when giving that evidence) and no mention had been made in his evidence of a new card having been issued." · "(h)e claimed to have left Iran on 6 September 2000 so that the card would have issued just seventeen days before he left the country and it is not explained why he would have applied for a card at such a time." · "(t)here was an inconsistency between the content of the card granting identity for one year from the date of issue (that is valid until around 20 August 2001) and his claims he had repeated that he had left Iran because he had received repeated ultimatums to leave." 21 At [22] the primary judge said that: "The information relating to the identity card was information "that the applicant gave for the purpose of the application". It was forwarded by the applicant's advisers in response to a letter from the Tribunal after the hearing occasioned by the making of the application. Section 424A(1) did not therefore apply to require the Tribunal to refer the inferences it drew from the information or inconsistencies arising to the applicant. …" 22 Counsel for the appellant submitted that the three matters referred to by the primary judge, which are repeated at [20] above, constitute "information" which, in each case, was "part of the reasons" that the RRT affirmed the delegate's decision. 23 With regard to the meaning of "information" for the purposes of s 424A(1), counsel referred to the judgment of the Full Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212, [2001] FCA 56 at [17] to [22], where the following was said, in the context of s 424(1): "For these reasons, 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) 101 FCR 352 at 366-367; 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." 24 In respect of the first matter referred to at [20] above, it was contended that it included "information" which was not given by the appellant. That "information" was said to be that "the [appellant] made no mention in his evidence of a new identity card having been issued." 25 In response to this submission, counsel for the respondent submitted that the RRT's observation that the appellant made no mention in his evidence of a new identity card having been issued was no more than a part of the RRT's reasoning process which led it ultimately to conclude that it was not satisfied that either photocopy was a copy of a genuine green card. The fact that, as part of its reasoning process, the RRT noted that the appellant had not referred to any more recent renewal of his green card when he gave his evidence could not constitute "information" for the purpose of s 424A(1). 26 In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at [20] "information" is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information". Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature. 27 At [22] in Win the Full Court considered that assertions which cast doubt on an applicant's version of events may constitute "information" for the purposes of s 424A. However, the assertions in Win were those of an informant. The Full Court did not intend to include in its definition of "information" conclusions arrived at by the RRT in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence. 28 Support for the approach we take to our rejection of counsel's submission may be gleaned from the judgment of Branson J in NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1010 at [8] where her Honour said: "I am inclined to doubt that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement or statements made by an applicant in support of his or her initial application, whether believed by the Tribunal or not, and the general impression, whether of coherence or otherwise, created by those claims and assertions, is "information" received by the Tribunal when the Tribunal is given a copy or record of the statement or statements. If such an intention is to be discerned from the section, the consequences would seem to be that, before the Tribunal can place weight on any inconsistency or incompatibility between claims and assertions made to the Department and the evidence given by the applicant to the Tribunal, the requirements of s 424A would have to be met. As Merkel J pointed out in Al Shamry [2001] FCA 919 at [30], the requirements of s 424A are unlikely to be able to be met during the course of the hearing before the Tribunal. It may be that the invitation to comment could be given by hand to the applicant at the hearing pursuant to s 441A(2) although Merkel J seems to have doubted this. However, even if the invitation were able to be given to an applicant during the course of a hearing, the effect of s 424B is that the time within which the comments could be given would be unlikely to expire until well after the completion of the hearing. Consequently, in virtually every case in which the Tribunal considered that a reason or part of the reason for affirming the decision under review would be inconsistency or incompatibility between a statement made by the applicant to the Department and the applicant's evidence to the Tribunal, the review process would have to be extended to allow the invitation required by s 424A of the Act to be issued and the applicant given an opportunity to respond." 29 We are also fortified in our conclusion that the matters sought to be relied upon by counsel for the appellant do not constitute "information", in the relevant sense, by the remarks of Tamberlin J in WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091. An issue in that case was whether the RRT had failed to furnish the appellant with particulars in writing of information to which the RRT had had regard, contrary to s 424A. A matter relied upon by the RRT, and claimed not to have been particularised, concerned the evidence of a Mr Davoodi, a witness said to corroborate the appellant's case. His evidence was considered by the RRT and rejected. Tamberlin J observed at [15] to [18]: "The submission for the appellant, in relation to Mr Davoodi's evidence is not, in substance, that he was unaware of the particulars of the information, but that the RRT did not inform him in writing as to the approach it would take in relation to the evidence of Mr Davoodi. The RRT did not have any obligation to give information to the appellant, before making its decision, as to its reasoning process or its conclusions in relation to the inconsistency or unconvincing nature of the evidence of Mr Davoodi. The appellant had called Mr Davoodi and it was for the RRT to accept or reject his evidence or to give it such weight as it thought appropriate. It cannot be said in any way that the appellant was unaware of the nature and extent of the information. It is well settled that in reasoning to its conclusion there is no obligation on the RRT to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning. As the Full Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592: "The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." (Emphasis added) This extract was cited with approval by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [194.]" 30 Turning to the second matter reproduced at [20], this was said by counsel for the appellant to include the following, "piece of information": "(that) there was no explanation in the appellant's evidence as to why he would have applied for the card [17 days before he left Iran]." 31 For the reasons set out at [26] above the RRT's conclusion that the lack of an explanation as to why the applicant would have applied for a green card shortly before he left Iran is not "information" within the context of s 424A(1). 32 The final matter relied on by counsel for the appellant, and reproduced at [20] is said to contain the following information: "(that) there was an "inconsistency" between two pieces of information." 33 A conclusion on the part of the RRT that there is an inconsistency between two pieces of information is not, of itself, "information" for the purposes of s 424A(1). It is no more than an observation made by the RRT in dealing with a conflict between information given by the appellant (ie. the provision of the green card to the RRT apparently legitimising the holder's presence in Iran, at a time when most Iraqis in that country were, according to DFAT, unable to obtain such cards), and a claim made by him in support of his application (ie. his assertion that he had received repeated ultimatums to leave Iran). 34 As each piece of alleged "information" relied upon by counsel for the appellant is not, in truth, "information" within the purview of s 424A(1) of the Act, the foundation upon which the appeal rests cannot be sustained. The only "information" which was provided to the RRT was that contained in the green card. The use which it made of that information, by contrasting it with particular claims made by the appellant, is not of itself "information", still less information of a kind which must be conveyed to an applicant pursuant to s 424A(1). 35 Even if, contrary to our view, the matters raised by the appellant did constitute "information" in the requisite sense, the green card was provided to the RRT by the appellant in support of his application for review of the delegate's decision. Any information contained in that card was, as the primary judge correctly noted, information "that the applicant gave for the purposes of the application" within the meaning of s 424A(3)(b). It follows that there was no obligation on the part of the RRT to provide any particulars of that information to the appellant. 36 Moreover, even if contrary to the conclusions set out above, the appellant were able to establish that one or more of the matters relied upon as constituting "information" was information for the purpose of s 424A(1), there would be no breach of that section unless the information was "the reason or a part of the reason" for the RRT's decision. That means that the appellant must establish that, on a proper analysis of its reasons for decision, in the absence of that particular information, the decision under review would not have been affirmed: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 at [58]. In the present case, it is not possible to arrive at that conclusion. 37 The Court acknowledges the considerable assistance which it has received from Mr M Howard who appeared as pro bono counsel on behalf of the appellant in relation to the s 424A issue. However, in our view, there was no error in the conclusion reached by the primary judge that the appellant had not made out a ground of review. Indeed, we agree with that conclusion. Disposition 38 For the foregoing reasons, it is our view that the appeal should be dismissed, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Weinberg and Jacobson. Associate: Dated: 13 September 2002 Counsel for the appellant: Mr M Howard Counsel for the respondent: Mr P Macliver Solicitor for the respondent: Australian Government Solicitor Date of hearing: 23 August 2002 Completion of written submissions: 9 September 2002 Date of judgment: 13 September 2002