SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968

FEDERAL COURT OF AUSTRALIA

SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968 SZEWL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR NSD 1719 of 2005 ALLSOP J 25 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 1719 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEWL

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: ALLSOP J DATE OF ORDER: 25 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) the appeal be allowed; (2) the orders of the Federal Magistrates Court made on 31 August 2005 be set aside; (3)(a) in lieu thereof there be an order in the nature of certiorari quashing the decision of the second respondent made on 29 November 2002; (b) an order in the nature of mandamus requiring the second respondent to reconsider the application for review according to law; (c) that the first respondent pay the applicant's costs. (4) the first respondent pay the appellant'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

NEW SOUTH WALESDISTRICT REGISTRY NSD 1719 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEWL

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE: 25 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court in which an application for judicial review pursuant to s 39B of the Judiciary Act was dismissed. In those orders the applicant was ordered to pay the respondent's costs and disbursements of and incidental to the application. 2 The notice of appeal sets out some five grounds of appeal. 3 The appellant is unrepresented. The careful reasons of the Federal Magistrate, delivered before the Full Court decision in SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 dealt comprehensively with the submissions of the appellant put to the magistrate. 4 For the reasons that will become apparent, it is unnecessary to deal with the findings of the Magistrate. It is sufficient to say that the appellant had not attended the hearing of the Tribunal having said he would. The appellant as applicant in the Federal Magistrates Court claimed that he had an epileptic seizure on the day of the hearing and that a friend contacted the Tribunal that afternoon to inform the Tribunal of that matter. 5 The Tribunal proceeded to make a decision and the applicant, being the appellant before this Court, said that he had been denied a hearing and procedural fairness in the circumstances which he identified. The appellant gave evidence before the magistrate as did the friend, and in terms that it is unnecessary to recount, their version of events was not accepted. 6 Thus the Federal Magistrate examined the matter by reference to the balance of the submissions put and the claim that the terms of the decision of the Tribunal were somehow vitiated by error. The terms of the notice of appeal do not identify any ground under accepted principles of appellate review why the Federal Magistrate's decision, as to the rejection of the appellant's evidence and his friend's evidence, should be overturned. 7 The appellant filed submissions entitled Outline of Applicant's Submissions in March of this year. I will not deal with them in detail for reasons that will become apparent. However, it is sufficient to say that much of the complaint related to traversing the question of the inability to attend the hearing and the underlying independent evidence and factual matters. 8 However, one matter which was dealt with in the submissions and can be seen to be raised on appeal was the proper operation of s 424A of the Migration Act 1958 (Cth). This was dealt with by the learned Federal Magistrate in the context in which it was put by way of emphasis below and that is in relation to the country information. 9 It is undoubted and it was settled by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 that what is referred to as country information, that is, information about the country in question from where the applicant may originate, is not information for the purposes of the operation of s 424A(1). In particular, it is information which falls within s 424A(3)(a). 10 However, embedded within the complaints of the appellant is a general allegation that s 424A was not complied with. In late 2005 the Full Court delivered judgment in SZEEU and other related matters. In that case there was an attempt by the Full Court, of which I was a member, to resolve the interrelationship between the proper construction of s 424A as identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the working of the section by reference to what had been said in the case of Al Shamri v Minister for Immigration and Multicultural Affairs [2000] FCA 592. The Full Court unanimously expressed the view that Al Shamri was not clearly wrong and should not be disturbed as an authority governing the operation of s 424A, in particular, s 424A(3)(b). 11 Thus in those cases, and in this case, information that the applicant gave to the Department and not to the Tribunal, though passed on by the Department to the Tribunal, was not information excluded from the operation of the Act and the operation of s 424A by 424A(3)(b). This has led in many cases, and I think in this case the same could be said, to a highly technical application of the law of the Parliament in circumstances where little or no injustice can be seen in the way the Tribunal dealt with the matter. 12 Nevertheless, the High Court in SAAP expressed the view by a majority that these provisions of the relevant law of the parliament must be applied strictly irrespective of the absence of any procedural unfairness or substantive injustice, which notions can be seen to inform the common law or general law or procedural fairness. That view was adopted by a clear majority of the Court in SZEEU in relation to the application of s 424A(1). 13 The first respondent filed submissions drafted by counsel. Those submissions, if I may respectfully say so, helpfully illuminate the substantive issues for determination in this appeal. With one exception, there is much force in the submissions placed on behalf of the first respondent. 14 However, I have not thought it necessary to decide the case on those matters and I have not given the appellant an opportunity to deal with the other issues because it seems to me that there is a fundamental problem with the Tribunal's decision. That incipient problem was recognised squarely by counsel for the first respondent in her submissions, that is, that at page 8 of the Tribunal's reasons information is taken into account and for the purposes of s 424A might be seen as part of the reason for affirming the decision, that information being information not excluded by s 424A(3)(b). This information was material from the appellant's passport and supporting documentation put to the department and/or delegate. 15 It is said on behalf of the Minister that for two reasons in the alternative, this is not information, the failure to deal with which in a letter under subsection (1), should vitiate the decision. First, it was said that there was an alternative ground of the decision being an independent basis for the decision. Reliance was placed on a decision of North J in VBAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, a decision followed in a number of cases. Indeed, it was a decision applied in one of the cases in the SZEEU appeals. 16 In my view reliance on that case is misconceived, if I may put it that way without any intended disrespect. This is not an independent basis, in my view. Reading the whole of the decision it is not possible, in my view, to conclude that the material in the first half of page 8 was not part of the decision. Whatever may be the proper extent and analysis underpinning cases such as VBAP, I do not think it applies here. 17 The second way of putting the matter, which may be a more attractive way of putting it for the first respondent, is that it is not so much an independent ground, but the second half of page 8 of the decision and the first half of page 9 which indicate that the true reason for the decision was unconnected with what was said at the top of page 8. If this were so, what appeared at the top of page 8 would be a matter of preliminary comment only and not part of the decision; to use the language of subsection (1), not a part of the reason for affirming the decision. 18 However, for the reasons I expressed a little earlier, I do not see such a clear-cut distinction in the reasoning process of the Tribunal. In my view, there is bound up in the whole decision-making process the totality of what appears on page 8 and page 9. In those circumstances, I would conclude that the information on the top of page 8 of the reasons for decision required a letter in conformity with the prescription of s 424A and failure to provide that letter in accordance with the Act and regulations vitiates the decision by reason of a failure to comply with a mandatory statutory requirement. 19 As I said earlier, in particular taking into account the nature of the information, no procedural fairness appears to have been denied the appellant and no criticism of a personal or professional character would lie against the Tribunal for failing to comply with this mandatory requirement of the Act, if for no other reason than at the time of the decision, the illumination of the proper scope of 424A had not been clarified by the High Court and the Full Court. Nevertheless, that illumination is not the creation of law but the declaration of it and in my view there has been a failure to comply with the mandatory terms of s 424A. It is unnecessary therefore for me to deal with any of the other arguments put either by the appellant or the respondent. 20 For those reasons I make the following orders: (1) the appeal be allowed; (2) the orders of the Federal Magistrates Court made on 31 August 2005 be set aside; (3)(a) in lieu thereof there be an order in the nature of certiorari quashing the decision of the second respondent made on 29 November 2002; (b) an order in the nature of mandamus requiring the second respondent to reconsider the application for review according to law; (c) that the first respondent pay the applicant's costs. (4) the first respondent pay the appellant's costs of the appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.