NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 409

FEDERAL COURT OF AUSTRALIA

NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 409 MIGRATION – applicant is a Chinese citizen who claimed to fear persecution from Chinese authorities – Refugee Review Tribunal (RRT) dismissed those claims as implausible – whether the RRT based that conclusion on confidential information protected by s 503A of the Migration Act 1958 (Cth). Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 424A, 474, 501, 503A Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited. NABF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1499 of 2001 SACKVILLE J SYDNEY 11 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1499 OF 2001

BETWEEN: NABF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 11 APRIL 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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

NEW SOUTH WALES DISTRICT REGISTRY N 1499 OF 2001

BETWEEN: NABF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 11 APRIL 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

the application 1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") for writs of mandamus, prohibition and certiorari in respect of a decision by the Refugee Review Tribunal ("RRT") made on 5 November 2001. The RRT affirmed a decision of a delegate of the respondent ("the Minister") to refuse the applicant a protection visa. 2 The applicant relies on a single ground, namely that the RRT failed to comply with s 424A of the Migration Act 1958 (Cth) ("Migration Act"). Section 424A provides as follows: "(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." 3 The particulars of the ground identified in the amended application are these: "The Tribunal regarded the fact that information protected by s 503A of the [Migration] Act had been received by the Department of Immigration and Multicultural Affairs in connection with another visa application by the Applicant as prejudicial to the Applicant's case but did not draw this fact to the Applicant's attention or invite him to comment upon it or otherwise comply with s 424A(1) of the Act in regard to it." Section 503A(1) of the Migration Act provides, inter alia, that if information is communicated to an authorised migration officer by a "gazetted agency" on condition that it be treated as confidential information and the information is relevant to an exercise of power under s 501 of the Act, the officer must not divulge or communicate the information to another person except the Minister (or an authorised migration officer) for the purposes of the exercise of a statutory power. 4 The Minister submitted that no contravention of s 424A(1) of the Migration Act had been established. The Minister further submitted that even if the RRT had contravened s 424A(1) the RRT's decision was not liable to be quashed. This was because the decision was a "privative clause decision" for the purposes of s 474(2) of the Migration Act. According to Mr Basten QC, who appeared with Mr Smith for the Minister, the effect of s 474(1) of the Migration Act is to preclude the Court from granting the relief sought by the applicant in relation to a privative clause decision, at least in the circumstances of the present case. 5 It was common ground that there was no occasion to address the effect of s 474(1) of the Migration Act if the applicant failed to establish that a breach had occurred of s 424A(1) of the Migration Act. At the conclusion of the hearing I indicated that I was not satisfied that the applicant had established such a breach and that I would later set out my reasons in written form and make formal orders dismissing the application. This judgment gives my reasons and makes orders disposing of the proceedings.