Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 187 ALR 574
Outcome: followed
In the RRT reasons, consideration is given to Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 187 ALR 574 (" Khawar" ). At page 26 of its reasons, the RRT concluded that, in the present case, the State was prepared to protect its citizens, and I can see no error in the reference to, or application of, the principles set out in Khawar . This was the sole ground relied on by the appellant. The RRT was prepared to accept that she was a member of the social group but did not accept that there was a lack of state protection. Therefore, the reasons of the RRT are consistent with Khawar . There is no substance in the ground of appeal raised. 8 Notwithstanding that the explanation for delay is not sufficient and that the applicant has made no submission of substance disclosing special reasons, I consider that the RRT reasons on their face do raise a question as to whether s 424A of the Migration Act 1958 (Cth) ("the Act ") has been breached. This section provides: " Section 424A Applicant must be given certain information (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 ... ... (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." ( Emphasis added) The onus of establishing a breach of s 424A is on the applicant. 13 After referring to Khawar , the RRT concluded on the country information that the government in Fiji had made a commitment to redressing gender discrimination and the law, particularly as it related to women and domestic violence. The RRT also noted that a new police commissioner had been appointed to increase the professionalism of the police force with an independent complaint mechanism, and that reports in the press indicated that the Fijian courts made judgments against male perpetrators of violence against women, including those in family situations. Accordingly, the RRT concluded that the case did not come within the principle set out in Khawar . The RRT also noted that there are non-government organisations of women's groups in Fiji who help women in domestic violence situations. The RRT concluded that, on the basis of the evidence before it, there was no real chance that the applicant would face persecution for any Convention reason should she return to Fiji. The reasons then proceed to note that she is married to an Australian citizen, that she is terrified of her former husband and that she is determined to gain custody of her children. The RRT reasons also state that the case merits consideration on humanitarian grounds. 14 On a reading of the RRT decision as a whole, it is not apparent whether or how the RRT used the material on the Departmental file. It is apparent that the RRT accepted that the applicant had suffered as she claimed and that she was a credible witness. The RRT decision turns on its acceptance and application of the principles laid down in Khawar in relation to state protection. Having regard to country information, which it cites in detail, the RRT concluded that there was no real chance of persecution if the applicant were returned to Fiji. In my view, the reasons for decision do not indicate that the RRT used the material in the file as a reason or part of any reason to reach its decision. The considerations discussed by the RRT in its decision indicate that the RRT used the file in the applicant's favour as to credibility. Accordingly, the primary obligation of s 424A(1) to make information that may be used by the RRT to affirm the decision under review available to the applicant has not been established in the present case. Therefore, there has been no breach of s 424A. 15 A second question that requires consideration in relation to s 424A is whether it can be said that the applicant or her agent have incorporated, adopted, or relied on the material in the departmental file before the RRT so that it can be said that the departmental file was information which the applicant gave to the RRT in the review application. 16 In the applicant's Application for Review to the RRT, there is a reference to the departmental file number and to reasons given by the applicant as to why she considers herself to be a refugee. In those reasons, she asserts that the case officer deprived her of the opportunity of an interview to enable her to explain her situation and the persecution she had suffered in Fiji. She says the case officer, on the application and information before him, was not able to fully understand the degree and seriousness of her claims. In my view, the fact of the file reference, of itself, does not amount to incorporation, adoption, or re-presentation of the material in the departmental file by the applicant or on her behalf to the RRT. The Appeal Book in this matter contains a letter from the solicitors and migration agents for the applicant wherein the following statements are made: 'We note that the delegate refused [the applicant's] protection visa application primarily on the ground that the persecution that [she] claims to have suffered was not Convention related. The RRT will note that this information is consistent with the claims put forward by [the applicant] in her original statement as confirmed by the statutory declaration presented by her siblings at the hearing.'