FEDERAL COURT OF AUSTRALIA BZAGU v Minister for Immigration and Border Protection [2015] FCA 920 Citation: BZAGU v Minister for Immigration and Border Protection [2015] FCA 920 Appeal from: BZAGU v Minister for Immigration & Anor [2015] FCCA 1278 Parties: BZAGU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: QUD 425 of 2015 Judge: LOGAN J Date of judgment: 18 August 2015 Catchwords: MIGRATION – judicial review – procedural fairness – appeal from Federal Circuit Court dismissing application for judicial review of Refugee Review Tribunal (Tribunal) decision refusing to grant appellant protection visa – leave granted to raise ground of appeal not raised below – where appellant claimed persecution based on marriage into higher caste – appellant's evidence as to having married shortly before travelling to Australia inconsistent with much earlier date on marriage certificate which came before Tribunal after hearing – Tribunal wrote to appellant regarding inconsistency – whether Tribunal failed to comply with requirement under s 424A of the Migration Act 1958 (Cth) to give clear particulars of information considered part of reason for affirming decision under review and invite appellant to comment – what constitutes compliance with requirement – whether requirement to write to appellant in his native language Legislation: Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) ss 424A, 424AA Cases cited: SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 228 CLR 294 cited SZTGV v the Minister for Immigration and Border Protection (2015) 229 FCR 90 applied Date of hearing: 18 August 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr S Richardson Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent The second respondent entered a submitting appearance save as to costs IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 425 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: BZAGU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 18 AUGUST 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the first respondent's costs of the appeal, fixed in the amount of $6,439.00. 3. The name of the second respondent is amended by deleting "Refugee Review Tribunal" and inserting instead "Administrative Appeals Tribunal". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 425 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: BZAGU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 18 AUGUST 2015 PLACE: BRISBANE REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The appellant is a citizen of the Republic of India. He arrived in Australia on 25 August 2009 as a dependent of his wife. His wife entered Australia pursuant to a student visa. The appellant's entry into Australia was consequential upon his wife's entry, pursuant to that visa. On 17 October 2012, while still in Australia, the appellant applied to what is now known as the Department of Immigration and Border Protection under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection (Class XA) Visa (protection visa). On 14 March 2013, a delegate of the Minister for Immigration and Border Protection, who is the first respondent to the appeal, refused to grant the visa for which the appellant had applied. 2 The appellant then sought the review of the Minister's delegate's decision by the Refugee Review Tribunal. That Tribunal is named as the second respondent to the appeal. Quite properly, as the Refugee Review Tribunal did before the Federal Circuit Court, it has taken no active part in the hearing of the appeal and neither has its statutory successor, the Administrative Appeals Tribunal. On 28 February 2014, the Refugee Review Tribunal decided to affirm the Minister's delegate's decision not to grant to the appellant a protection visa. 3 The appellant then applied to the Federal Circuit Court for the judicial review of the Refugee Review Tribunal's decision. On 20 May 2015, the Federal Circuit Court dismissed with costs the appellant's judicial review application. 4 There is only one ground of appeal. The ground of appeal is: 1. The Hon Judge failed to consider that the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424Aa of the Act. [sic] 5 That ground of appeal does not reflect a ground of review specified in the appellant's judicial review application. It has been said more than once, and it bears further repetition, that this Court's jurisdiction is appellate, not original. It is correspondingly important that there be no encouragement that points can be saved up for use on appeal which ought to have been pleaded in the original jurisdiction in a judicial review application. Having said that, there can be cases where it is permissible for a point not taken or an issue not raised in the original jurisdiction permissibly to be raised on an appeal where an absence of permission would render an injustice to an appellant and where there is no prejudice to a respondent. 6 The ground of appeal is one that required a factual foundation, but the evidence for it is to be found and only found in the appeal book, at least if the pages of that book were legibly reproduced. That is a subject to which I shall return later in these reasons for judgment. It is first necessary to detail the basis of the claim made by the appellant for a protection visa. 7 The appellant claimed to fear persecution if he returned to India because of his membership of a particular social group or caste which was that of people who had married someone from a higher caste. The appellant stated that he had married a woman of a higher caste. His evidence before the Refugee Review Tribunal was that he and his wife had separated in 2012, after coming to Australia, and subsequently divorced. Nonetheless, his claim in respect of fearing persecution if he returned to India was that his former wife's family would kill him, despite the divorce, because of the damage which the marriage had caused to their prestige. His further claim was that he had been attacked by unknown assailants in India after the marriage. 8 The appellant was invited to and took up the invitation extended by the Refugee Review Tribunal to attend at a hearing in respect of his review application. That hearing occurred in October 2013. Thereafter, the department's file in respect of the student visa application came into the Refugee Review Tribunal's possession. The appellant had stated at the hearing, in his evidence, that he married his wife on 16 February 2009, just before he and his wife came to Australia. His evidence was that he had lived with his wife for just one month after the wedding. 9 The Refugee Review Tribunal noticed a copy of a marriage certificate in respect of the appellant and his wife on the student visa file. That states that the date on which a marriage was solemnised was 24 May 2003. This difference as between the date on the marriage certificate and the date of marriage given in evidence by the appellant occasioned the Refugee Review Tribunal to send a letter of 19 December 2013 to the appellant. Attached to that letter was a copy of the marriage certificate. 10 The author of that letter, as has been quite properly drawn to my attention by Mr Richardson of counsel who appeared for the Minister, erroneously gave as the date stated in the certificate of the marriage 28 May 2003, rather than 24 May 2003. A copy, though, of the certificate was attached to the letter. The letter then stated that the information on the certificate was relevant to the review: Because you have claimed to have married your wife on 18 February 2009, just before you came to Australia... It was then stated: If the tribunal relies on this information in making its decision, it may disbelieve your claim to fear persecution from your wife's family or people from a higher caste, and decide you are not entitled to the grant of a protection visa. The letter then invited the appellant to give comments on or respond to the information specified in the letter. It was only after the time allowed had expired that the Refugee Review Tribunal gave its decision. 11 In that decision the Refugee Review Tribunal recorded an absence of satisfaction that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention. Reading the reasons of the Refugee Review Tribunal as a whole, as one must, highly influential indeed in that absence of satisfaction was an adverse view formed by the Refugee Review Tribunal of the credibility of the appellant and, in turn, that adverse view was much influenced by the inconsistency between the appellant's evidence as to the date of his marriage and the date of the marriage as recorded in the marriage certificate on the student visa file. 12 The Refugee Review Tribunal also recorded its impression of the appellant's evidence as being evasive and vague, but the impression there recorded was underscored, plainly, by the inconsistency mentioned. The end result of the tribunal's assessment of the appellant's evidence, at para 51 of its reasons, was that his evidence was "patently false". The Refugee Review Tribunal recorded in its reasons the giving to the appellant by letter of 19 December 2013 of an opportunity to comment upon the inconsistency, having regard to the date of marriage on the certificate. 13 In the Federal Circuit Court the learned judge dealt in an unremarkable way with the grounds of review pleaded. It is not necessary to refer to his Honour's treatment of those grounds further because no error in the conclusions reached in respect of those grounds is pleaded. Instead, it is put that the Federal Circuit Court ought to have appreciated that there was a patent breach of s 424A of the Act, in any event, in the processes of Refugee Review Tribunal. 14 It was again quite properly conceded on the part of the Minister, as it had to be, that non-compliance by the Refugee Review Tribunal with s 424A of the Act would constitute a jurisdictional error and invalidate the Refugee Review Tribunal's decision: SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 228 CLR 294 at paras 77, 173 and 208. This and other authorities concerning the construction and application of s 424A of the Act were recently collected and discussed by the Full Court in SZTGV v the Minister for Immigration and Border Protection (2015) 229 FCR 90. A feature of the Full Court's judgment is the distilling of a checklist of questions at para 9 which arise in relation to any controversy concerning the operation of s 424A of the Act. 15 Suffice it to say, in the circumstances of the present case and having regard to that checklist, one reaches the position that the critical question is question (e), namely did the Refugee Review Tribunal give the appellant the information in accordance with s 424A(2)? The Minister's position is that it did, because the letter complied with the requirements of that subsection. The method chosen by the Minister was a letter, and that letter gave in it, in my view, clear particulars of the information that might form a part of the Refugee Review Tribunal's reasons for deciding to affirm the decision to refuse the grant of a protection visa. 16 It is possible to conceive of a case where a factual error in a letter sent in purported compliance with s 424A(2) would not amount to such compliance. That would be because it did not truly give clear particulars. Here, the critical difference or inconsistency was the year 2003 when compared with 2009. Further, the certificate which gave rise to the apparent inconsistency was copied and attached to the letter. Lamentable though the inaccuracy was in the letter, it was not, in my view, of any moment in terms of whether there was compliance with the requirements of s 424A in the circumstances of this case. 17 Another question which arose in the course of the appellant's submission was that he did not understand the letter. The Refugee Review Tribunal's reasons record of the appellant, at para 21, that he had indicated that he spoke, read and wrote Gujurati, as well as English. It was though apparent that on the hearing of the appeal, that he required the assistance of an interpreter fluent in Gujurati. The point I took the appellant to make in relation to s 424A, albeit one not expressly stated in his ground of appeal, was that it was a requirement of the section that the letter to him be given in his native language, not English. 18 As I have already stated, the appellant's claim to the Refugee Review Tribunal was that of being bilingual, although it appears that his evidence before the Refugee Review Tribunal was given with the assistance of an interpreter. Be this as it may, the official language of Australia all branches of government, is English. The Act does not expressly require that compliance with s 424A be in the language of the applicant for review. Rather, the Act assumes, as, for that matter, does the Judiciary Act 1903 (Cth) in respect of the High Court of Australia and the Federal Court of Australia Act 1976 (Cth) in respect of this Court, that proceedings will be conducted in English. 19 As a matter of fairness, the Refugee Review Tribunal chooses to offer the assistance of an interpreter. That has the consequence, where an interpreter is used, that if the alternative of giving particulars orally in the course of a hearing pursuant to s 424AA is used, those particulars will be given in a review applicant's native language. It does not, in my view, follow from this procedural outcome, which occurs in many cases, that there is a corresponding requirement that notice under s 424A must be given in a review applicant's native language. 20 What remains then is a case where, when one has regard to a legible copy of the certificate, as the Refugee Review Tribunal apparently had (and as came to be marked as Exhibit 1 in these proceedings), an inconsistency is evident. The Refugee Review Tribunal became aware of that inconsistency after the hearing. In the circumstances of concluding that it might form part of a reason to affirm the decision under review, an obligation arose under s 424A to give particulars of the information and to offer an opportunity to comment or make submissions to the appellant. This the Refugee Review Tribunal did. Having done that, the Refugee Review Tribunal reached a view it was entitled to reach, having regard to the identified inconsistency, with respect to the appellant's credibility. What followed thereafter was an unremarkable absence of satisfaction in light of the identified inconsistency. 21 The judgment below dismissed the judicial review application. Even had the ground pleaded on appeal been raised, it would not have made a difference to the order made below. There is no merit in the ground of appeal pleaded. The appeal is therefore dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 24 August 2015