FEDERAL COURT OF AUSTRALIA

SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93

MIGRATION – review of decision of Federal Magistrates Court – whether Federal Magistrate erred in failing to find that the Refugee Review Tribunal made a jurisdictional error in dismissing application – whether information obtained by the Refugee Review Tribunal from third parties was information about the first appellant

Migration Act 1958 (Cth) ss 424A(1), 424A(3)(a)

SZJJD, SZJJE, SZJJF, SZJJG AND SZJJH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL   

NSD 219 of 2008

GRAY, STONE AND TRACEY JJ

30 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The first appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     The appellants are a husband and wife and their three children who are citizens of Uruguay who arrived in Australia on 13 December 2005.  On 27 January 2006 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, as the first respondent’s department was then known.  The substantive claims were made by the husband, the first appellant.  The wife and children based their application on their being members of the first appellant’s family.

2                     A delegate of the first respondent refused the application on 15 March 2006.  On 11 April 2006 the appellants applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal affirmed the decision of the delegate.  The appellants’ application for judicial review of the Tribunal’s decision was dismissed by Federal Magistrate Barnes on 31 January 2008; SZJJD & Ors v Minister for Immigration & Anor [2008] FMCA 3.

3                     The appellants now claim that the Federal Magistrate erred in failing to find that the Tribunal made a jurisdictional error in dismissing their application.  The parties agree that the question in this appeal is whether certain information obtained by the Tribunal from third parties was “not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member” within the meaning of s 424A(3)(a) of the Migration Act 1958 (Cth).  They agree that if the information can be so characterised then the Tribunal was not required to provide the appellants with particulars of that information pursuant to s 424A(1) of the Migration Act.

4                     The Tribunal accepted the first appellant’s account of his experiences up until the change of government in Uruguay in 2004.  It said:

I accept that [the first appellant] was an active unionist in Uruguay, was a union delegate with the union SUNCA [Sindicato Union de la Construction y Afines] in 1991-1992, and after a strike was shot by two unidentified men in 1992.  That injury is borne out by medical evidence.  I also accept that in September 1993 he was threatened, so resigned, got another job, but continued to be harassed and in late 1993 was detained by police after a union meeting. I accept that he was held for two days, tortured and released without charge. I accept, as he claimed, that he then left his job, changed his address and ceased SUNCA activities for a time.

I consider plausible, and accept that [the first appellant] was a member of SUNCA. I accept, as he claimed and as is consistent with the independent evidence, that SUNCA is a legal body in Uruguay. I accept that he was an active member until 1996. He submitted recent evidence from SUNCA’s president that he was a union member from 1988 to 1996, and had been an elected union delegate in the capital.  This letter indicates that he ceased to be a member in 1996. However it may be, as he claimed, that after 1996 he became less active because his own employment profile changed.

Of the Movimiento de Participación Popular (MPP), he has submitted no documentary evidence of his membership but I consider plausible his claim that he was a member of this group.  I am satisfied, as he claimed, that it is also a legal body in Uruguay.

[The first appellant] claimed that it was “normal” for members of these two groups to be attacked and killed in Uruguay, and that he feared that this might happen to him. For a number of reasons I cannot be satisfied that, under the present government which came to power in 2004, this is the case.

5                     The Tribunal’s reasons for concluding that the first appellant’s situation was different after 2004 included that some of his recent behaviour was not consistent with him having such a fear; that at the time he left Uruguay he was the owner of three properties, a vehicle and a well-established business and he took regular holidays outside Uruguay; that an assault in October 2005 appeared to be a “one-off mugging” unrelated to his political opinion or activities; and that his claim that it was normal for SUNCA and MPP members to be attacked was not borne out by the evidence he submitted or by other sources to which the Tribunal referred.

6                     In addition the Tribunal said that if there were continuing attacks on persons in the first appellant’s position it would expect that information to be reported by human rights groups such as Amnesty International and Human Rights Watch.  It continued:

These organisations face no restrictions on reporting human rights abuses, and both SUNCA and the MPP could readily pass on information to them about problems facing their members.  As they do not appear to have done so, and as the MPP have not responded to the Tribunal’s direct enquiries, I infer that activists with the SUNCA or MPP are not facing physical attacks because of their political activities.

[Emphasis added]

7                     The enquiries to which the Tribunal referred were described in the written submissions filed on behalf of the appellants by Mr N Poynder of Counsel who appeared pro bono pursuant to a referral made under O 80 of the Federal Court Rules.  The Court is grateful to Mr Poynder for his assistance. 

8                     The submissions were as follows:

The day after the hearing, on 22 June 2006, the Tribunal member sent a request to a Tribunal researcher which was relevantly in the following terms:

The applicant claims to be a leftist activist in Uruguay and to be a longstanding member of the MPP and SUNCA.  He claims that, both before and since the election of the leftist FA party, he has been the target of regular anonymous threats and a physical assault. It is claimed that there are elements within FA, and elements within the police force, which are behind this and other targeting of leftists.

Questions

Although I note that 4 people were arrested during a Summit of the Americas protest in Montevideo in November 2005, I have been unable to locate evidence that the type of sustained targeting and harassment described by the applicant is occurring.  However, there seems to be little information about Uruguay.

1.      I’d like information (preferably from other that the US State Dept.) regarding whether there are reports of targeting of any leftists/unionists since 2004 of the type described by the applicants.

2.      Would such reports be freely available in Uruguay? (For example please advise whether there is genuine press freedom, and scrutiny by human rights groups.)

9                     The heading to the request to the Tribunal researcher identified the relevant country as Uruguay and also bore the following notation, “CMS Number: 060335667”.  This number linked the request to the appellants’ review file in the Tribunal.  There was no other identification of the first appellant in the request.

10                  On 26 June 2006 a Senior Researcher in the Country Information Unit of the Tribunal sent four almost identical emails to the Instituto de Estudios Sociales y Legales del Uruguay, the Servicio Paz y Justicia Uruguay, the Instituto Cuesta-Duarte, and the Movimiento de Participación Popular seeking their views on the current situation for unionists and leftists including leaders or members of the Movimiento de Participación Popular.  The substantive part of each of these requests is set out in an annexure to these reasons.  In its reasons the Tribunal stated that “to date” no reply had been received from these institutions.

11                  The Federal Magistrate, in reviewing the Tribunal’s decision, accepted that the fact that the Tribunal received no reply from the four Uruguayan institutions it contacted was information that formed part of the reason for the Tribunal’s decision within the meaning of s 424A(1) of the Migration Act.  Her Honour continued at [81]-[83]:

However I am satisfied that the obligation in s.424A(1) does not apply because of the operation of s.424A(3)(a). As the first respondent contended, the information was not specifically about the applicant or another person. Consistent with the authorities referred to by both parties, it cannot be suggested that information was specifically about the applicant merely because he was a member of MPP (one of the bodies that did not reply). This is not a case in which there was a failure to reply to an enquiry to an organisation about whether a named applicant was a member or about treatment of a specific person. The requests to the Uruguayan organisations, including the MPP, were for general information about the current situation for unionists and leftists in Uruguay.

The fact that the Tribunal made an internal enquiry about the risk to unionists and leftists (and MPP members) in the context of its review of the applicant’s application for a protection visa does not convert the information consisting of Tribunal contact with the Uruguayan organisations about the treatment of leftists and unionists and the absence of a reply (in particular from the MPP) into information “specifically” about the applicant or another person.  Nor does the fact that the Tribunal used this information as part of the reason for affirming the decision under review. 

In particular, the fact that the internal Tribunal research request referred to the applicant’s review file number and was made in the context of the review of a particular application does not enliven s.424A(1). First, the internal research request, while providing the context in which the request to the Uruguayan organisations was made, was not itself part of the information that the Tribunal considered would be the reason or part of the reason for the decision. Further, even if the internal request was within the language of s.424A(1) on the basis that the internal research request initiated the process of seeking information from the Uruguayan organisations, in that sense it was not specifically about the applicant.  While it described his claims about past harm as part of the background to the research request and referred to his file number, the relevant part of the request related to whether there was information about any reports of targeting of any leftists/unionists since 2004 in Uruguay.

12                  At the hearing of the appeal it was submitted for the appellants that the use of their file number referred to at [9] above on the internal request for research assistance was a sufficiently proximate link to the first appellant to take the information concerning the Uruguayan institutions’ failure to reply out of the ambit of the exception in s 424A(3).  At the relevant time the subsection provided:

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 another person is a member.

13                  The Federal Magistrate rejected that submission when it was put to her.  In our view her Honour was correct to do so for the reasons she gave.  The fact that the Tribunal’s enquiry may have been prompted by the first appellant’s claims does not mean the information was about his claims.  The information, such as it was, was about groups of persons (unionists, leftists, activists and members of the Movimiento de Participación Popular) of which the first appellant was a member.  In no sense did it constitute information specifically about the first appellant.  We agree with the submission made by counsel for the first respondent, Mr Lloyd, that the present case is a clear example of an exception provided for by s 424A(3).  For these reasons the appeal must be dismissed with costs. 

Associate:

Dated:         30 May 2008

SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93

Annexure

The substantive parts of each email referred to in [10] of the Court’s reasons are as follows:

1.         Instituto de Estudios Sociales y Legales del Uruguay

A Member of the Tribunal is currently seeking information about the treatment of unionists and leftist activists in Uruguay since 2004 and would be most appreciative if you could answer the following questions:

1.         Since 2004, are you aware of any attacks or harassment of union members or leaders in Uruguay by the government, military or police?

2.         If so, please provide details.

3.         Since 2004, are you aware of any attacks or harassment of leftist activists including members of the MPP (Movimiento de Participación Popular) in Uruguay by the government, military or police?

4.         If so, please provide details.

Any information you provide may form part of the information used by the Tribunal to review applications for refugee status.  The information and your organisation’s identity may be disclosed to applicants, their advisers, the Department of Immigration & Multicultural & Indigenous Affairs, or otherwise become publicly available.  Please do not send any information to the Tribunal unless you agree to its use in this way.”

2.         Servicio Paz y Justicia Uruguay

A Member of the Tribunal is currently seeking information about the treatment of unionists and leftist activists in Uruguay since 2004 and would be most appreciative if you could answer the following questions:

1.         Since 2004, are you aware of any attacks or harassment of union members or leaders in Uruguay by the government, military or police?

2.         If so, please provide details.

3.         Since 2004, are you aware of any attacks or harassment of leftist activists including members of the MPP (Movimiento de Participación Popular) in Uruguay by the government, military or police?

4.         If so, please provide details.

Any information you provide may form part of the information used by the Tribunal to review applications for refugee status.  The information and your organisation’s identity may be disclosed to applicants, their advisers, the Department of Immigration & Multicultural & Indigenous Affairs, or otherwise become publicly available.  Please do not send any information to the Tribunal unless you agree to its use in this way.

3.         Instituto Cuesta-Duarte

A Member of the Tribunal is currently seeking information about the treatment of unionists in Uruguay since 2004 and would be most appreciative if you could answer the following questions:

1.         Since 2004, are you aware of any attacks or harassment of union members or leaders in Uruguay by the government, military or police?

2.         If so, please provide details.

Any information you provide may form part of the information used by the Tribunal to review applications for refugee status.  The information and your organisation’s identify may be disclosed to applicants, their advisers, the Department of Immigration & Multicultural & Indigenous Affairs, or otherwise become publicly available.  Please do not send any information to the Tribunal unless you agree to its use in this way.

4.         Movimiento de Participación Popular

A Member of the Tribunal is currently seeking information about the treatment of leftist activities in Uruguay since 2004 and would be most appreciative if you could answer the following questions:

1.         Since 2004, are you aware of any attacks or harassment of leftist activists including members or leaders of the MPP (Movimiento de Participación Popular) in Uruguay by the government, military or police?

2.         If so, please provide details.

Any information you provide may form part of the information used by the Tribunal to review applications for refugee status.  The information and your organisation’s identity may be disclosed to applicants, their advisers, the Department of Immigration & Multicultural & Indigenous Affairs, or otherwise become publicly available.  Please do not send any information to the Tribunal unless you agree to its use in this way.