Case: SZLPO v Minister for Immigration and Citizenship and Another (NSD 1227 of 2008); SZLQH v Minister for Immigration and Citizenship and Another (NSD 970 of 2008); SZLPP v Minister for Immigration and Citizenship and Another (NSD 1486 of 2008) [2009] FCAFC 51 ; (2009) 255 ALR 407
Outcome: followed
hearing of this appeal was fixed for 19 November 2008. However, since the decision in SZLPO v Minister for Immigration and Citizenship and Another (NSD 1227 of 2008); SZLQH v Minister for Immigration and Citizenship and Another (NSD 970 of 2008); SZLPP v Minister for Immigration and Citizenship and Another (NSD 1486 of 2008) [2009] FCAFC 51 ; (2009) 255 ALR 407 was then pending before the Full Court of the Federal Court of Australia, the hearing of these proceedings was adjourned. On 4 May 2009 the Full Court gave judgment in SZLPO . The Court then contacted the parties to enquire whether they wished to make further oral or written submissions. The parties replied in the affirmative. The Minister filed a Notice of Contention on 18 August 2009, both parties made further written submissions and the Court listed a further hearing on 18 August 2009 for oral submissions. The following issues are raised by the Minister's Notice of Contention: The learned Federal Magistrate erred in concluding that the request to the Australian Ahmadiyya Association was a request falling within the purview of s.424 of the Act, thereby enlivening the requirements of s.424B of the Migration Act 1958 (Cth). The learned Federal Magistrate erred by concluding that there was no jurisdictional error in the Tribunal's decision because the: a Tribunal was required to confirm the address of the Australian Ahmadiyya Association for the purposes of the review and that its (inferred) failure to do so rendered ss.441A(4) , 441C (4) of the Act and regulation 4.35 of the Migration Regulations 1994 (Cth) ("Regulations") inoperable; and b the effect of the preceding sub-paragraph was that the absence of a prescribed period for response for the purpose of s.424B(2) was not enlivened. The learned Federal Magistrate erred by concluding that s.424B(1) applied in the present case because the Australian Ahmadiyya Association is not a natural person. Contrary to the conclusions of the Federal Magistrate as set out in paragraphs [1] to [3] above, the request to the Australian Ahmadiyya Association did not come within the ambit of ss.424 and 424B because: a the Australian Ahmadiyya Association is not a natural person. b it was not a request seeking " additional information " within the meaning of s.424 of the Act as no information had previously been provided by the Australian Ahmadiyya Association or Mr Mahmood Ahmed in connection with the appellant's review. c Even if the Tribunal did breach s.424 of the Act, any such error arguably did not go to jurisdiction. In the alternative, if the Court finds jurisdictional error the first respondent respectfully asks that the Court exercise its discretion and withhold relief. It is convenient to deal with the issues raised by the Notice of Contention since the resolution of those issues will assist in the resolution of this appeal. The critical issue is whether s 424(2) of the Act applied to the inquiry made by the Tribunal in its September 2007 letter. The resolution of this issue in the negative would have the consequence that the issues raised by the appellant, each of which concern the application of the requirements of s 424(2) , will not arise. The appellant relies upon the letters of 25 July 2000 and 2 September 2007 ('the false letters') as constituting original 'information' supplied to the Tribunal, and submits that the Tribunal's September 2007 letter is therefore a request for 'additional information'. The appellant alternatively submits that the Tribunal obtained 'information' by its request of the Australian Association made in 2004. Accordingly, its 2007 request was one for 'additional information'. The appellant submits that as the September 2007 letter was seeking 'additional information', the Tribunal was required to comply with the requirements of s 441A by giving notice of the request to the last address provided to the Tribunal (s 441A(4)(c)(i)) or to the last residential or business address of the person (s 441A(4)(c)(ii)); that the invitation to provide the additional information was required to specify the way in which the information was to be provided as required by s 424B(1); and also to specify the time in which the information was to be furnished as required by s 424B(2). The appellant submits that failure to comply with such procedures led to jurisdictional error. In SZLPO the Full Court considered the nature of 'additional information' within s 424 of the Act. In those proceedings the appellant claimed to be a member of the Ahmadiyya faith and to have suffered persecution by Sunni Muslims in Bangladesh. In support of his claim he provided the Tribunal with a letter on the letterhead of the ' Ahmadiyya Muslim Jamaat, Krora, Bangladesh ' apparently signed by the President of that organisation which purported to commend the appellant as an Ahmadi. The letter was addressed 'To Whom it May Concern'. Such letter had been provided prior to the hearing and at the hearing the appellant agreed that the Tribunal should make inquiries to verify his claims. As a result the Tribunal accordingly wrote to the Department of Foreign Affairs and Trade ('the Department') asking it to conduct inquiries with the office of the National Amir in Bangladesh via the Ahmadiyya Muslim Association of Australia. Subsequently the Department furnished the Tribunal with information provided by the National Amir. It confirmed that the appellant was not a member of the Ahmadiyya Muslim Jamaat. The Tribunal thereafter wrote to the appellant furnishing the information it had received from the Department and inviting the appellant to comment. The appellant claimed that the Tribunal's decision was affected by jurisdictional error because the Tribunal had ' invited the Amir to give additional information ' and as such s 424(3) required the Tribunal's invitation to be given to the National Amir by one of the methods specified in s 441A. The Full Court in SZLPO referred to the decisions in SZKTI and in SZKCQ . It summarised the findings in those two decisions as follows at [85]: SZKTI and SZKCQ establish that: (1) s 424 is a source of the Tribunal's power to get information (subs (1)) and is the source of the Tribunal's power to get "additional information" that falls within the meaning of that expression in s 424(2) (subs (2)), other sources for the getting of information having been noted by us at [13]-[19] above; (2) where there is an invitation from the Tribunal to give "additional information" within the meaning of s 424(2), s 424(3) makes it mandatory for that invitation to be conveyed by a document given to the invitee by one of the methods specified in s 441A; (3) failure to comply with s 424(3), where it applies, is jurisdictional error; (4) unless it is provided in the course of the hearing, information will be "additional information" within s 424(2) at least if it is additional to information previously given by the particular invitee to the Tribunal. The fourth proposition above leaves to be resolved by us the question whether information can be "additional information" within s 424(2) if it is additional to information obtained by the Tribunal from sources other than the invitee. [Emphasis in the original] The High Court's decision in SZKTI at [47] appears to render (1) and (2) above incorrect insofar as s 424(2) would appear to no longer be the only source of the power of the Tribunal to seek 'additional information', at least where such 'additional information' is sought by telephone. However, the High Court's decision in SZKTI does not appear to disturb the observation in (4) above, which is the relevant matter for consideration in this appeal. The reasoning grounding (4) is relevantly found in paragraph [99] of SZLPO where the Full Court said: The view that "additional information" means "information additional to any information already possessed by the Tribunal, whether it came from the invitee or not" is problematic. The written invitation r&eacute;gime would then apply to all information that the Tribunal might invite a person to give after the Tribunal first became seized of any information at all unless a contrary indication could be found (cf SZKCQ at [49]-[51])). Presumably the first time the Tribunal becomes seized of information is when the Secretary sends documents to the Registrar under s 418(3). We suggest that a more limited meaning of "additional information" must be looked for. Again, that which suggests itself is "information additional to information previously given to the Tribunal by the invitee". The Full Court said at [88]: It [s 424(2)] is also not engaged when a tribunal contacts a library, agency or body that it has had no previous contact with in relation to a particular review because it is not seeking additional information from that person. At [36] of SZMBS the Full Court, having cited SZLPO , said: It is significant that the letter of 3 February 2008 from the Local Church is not addressed to the Tribunal and was not provided to the Tribunal by Brother Poh. Rather, it was given to the Tribunal by the appellant. Thus, as at the time when the Tribunal telephoned Brother Poh, Brother Poh had not given any information to the Tribunal concerning the appellant. At [34] the Full Court observed: The language of s 424(2) is subject to possible ambiguity. Section 424(2) refers to the Tribunal inviting the person to give additional information . A question arises as to whether that refers to information that is additional to information that the Tribunal has already obtained from any source, such as from the applicant or pursuant to s 424(1), or to information that is additional to information that the Tribunal has already obtained from the person to be invited. The possible inconvenience referred to above might suggest that s 424(2) is concerned with inviting a person who has already given information to the Tribunal to give additional information. In such a case, the person may well have provided an address to the Tribunal in connection with the review. Accordingly, the preferable view is that s 424(2) refers to information additional to information previously given to the Tribunal by the person to be invited (see SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 at [99] - [100] ). At [37] the Full Court found: However, the Tribunal was not inviting Brother Poh to give additional information within the meaning of s 424(2). At most the Tribunal was making an enquiry as to whether Brother Poh had relevant information to give to the Tribunal. It did not invite him to give information, much less additional information. Was the 2004 letter 'information'? In the present appeal, the Tribunal was aware of the address of the Australian Association at the time it determined the appellant's application. As mentioned at [4], by letter dated 7 December 2004 the Tribunal had written to Mr Nasir Kahlon, General Secretary of the Australian Association, seeking information in respect of persons of the Ahmadiyya community generally. Such letter was written by the Senior Researcher, Country Research of the Refugee Review Tribunal. Relevantly the letter states as follows: The Tribunal is currently assessing the claims of a Bangladeshi citizen who states that he belongs to the Ahmadiyya community. The Tribunal would appreciate answers to the following questions: If the applicant approached the Ahmadiyya Association would he be provided with a form of certification stating that he is an Ahmadiyya? If so, how would the Ahmadiyya Association test his credibility? How else might an applicant have his claim to be an Ahmadiyya verified? In a letter, dated 3 September 1997, you informed the Tribunal that when an Ahmadi submits an application to the Department of Immigration "he/she always provides a letter with the application issued by us stating that the person is a member of our community". Is this still the case? Or was your statement in reference to the now defunct Ahmadi (Special Assistance) (Class BJ) visa? A copy of your earlier letter is attached. Please be advised that the Refugee Review Tribunal is an independent Tribunal set up by legislation to undertake merit review of applications for refugee status of persons in Australia. Our website URL at http://www.rrt.gov.au contains more information about the Tribunal. One of the functions of the Country Research Unit is to obtain information to support the review function of the Tribunal. The Court rejects the submission of the appellant that the mere placing of the 2004 letter from the Australian Association on the Tribunal's file rendered such letter 'information' for the purpose of the specific review in question as referred to in SZLPO and SZMBS . Were the false letters 'information'? In summary, the 2004 letter from the Australian Association was not 'information' since it did not relate specifically to the appellant; it was not provided by the appellant to the Tribunal; and it was not provided in connection with any review of the appellant. Further, the Tribunal's enquiry of the National Amir by its September 2007 letter was not a request for 'additional information' since the Amir had not previously been invited to provide information. That is, neither the National Amir nor the Australian Association had provided ' information additional to information previously given to the Tribunal by the invitee ': see SZLPO at [99]. It follows that the September 2007 letter was not a request for 'additional information' within s 424(2) of the Act. It follows from the above that the Federal Magistrate erred in concluding that the September 2007 letter from the Tribunal to the Australian Association was a request falling within the purview of s 424 of the Act, enlivening the requirements of s 424B of the Act. In view of the Court's conclusion, any issue of non-compliance with ss 424A, 424B or 441A of the Act does not arise for consideration. Accordingly, it is unnecessary to determine other issues raised by the Notice of Contention and by the appellant in his submissions.