FEDERAL COURT OF AUSTRALIA

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 424A

Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 cited

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 applied

SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 cited

VAF v Minister for Immigration & Multicultural & Indigenous Affairs  (2004) 206 ALR 471 applied

VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 applied

WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 applied

SZDXC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD 1054 OF 2005

HELY J

15 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Smith FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a decision of the Minister’s delegate not to grant a protection visa to the appellant.  By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined before a single judge.

The RRT proceedings

2                     The appellant is a citizen of Pakistan who claimed to have a well-founded fear of persecution by reason of his religion.  In the form of application for review lodged with the RRT the appellant responded to the question: ‘Please tell us why you consider yourself to be a refugee’ as follows:

‘Written submission shall be sent if so advised.’

In the form, the appellant nominated a firm of immigration consultants as acting on his behalf.

3                     By letter dated 12 March 2004 the RRT informed the appellant and his immigration consultants that the RRT had considered the material before it in relation to the application but was unable to make a decision in the appellant’s favour on this information alone.  The appellant was invited to come to a hearing of the RRT fixed for 21 April 2004 to give oral evidence and present arguments in support of his claims.  On 1 April 2004 the RRT received from the appellant a completed ‘Response to Hearing Invitation’ form in which he stated that he did not want to come to a hearing and consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable the appellant to appear before it.

4                     The RRT made its decision on 13 May 2004.  In the section of its decision headed ‘Findings and Reasons for Decision’ the RRT said:

‘In the present case the Applicant’s statement provides very little detail beyond the assertions that the Applicant is a Shia Muslim and a member of the TNFJ, that he has been threatened and attacked by the SSP and that he believes that his name is on an SSP “hit list”.  The Applicant’s statement suggests that these circumstances existed before he first came to Australia as a student in 1997 yet he returned to Pakistan in 1999, he says to see his mother.  He came back to Australia and continued his studies and he did not apply for a protection visa until August 2003.  As Heerey J noted in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution.  In the present case I am unable to be satisfied on the evidence before me that the Applicant genuinely fears the SSP, its supporters or terrorists or Sunni Muslims more generally because he is a Shia Muslim or because of his claimed involvement in the TNFJ.  I am unable to be satisfied that there is a real chance that the Applicant will be persecuted for reasons of his religion or his political opinion if he returns to Pakistan now or in the reasonably foreseeable future.’

The Federal Magistrates Court

5                     It is clear from a reading of Smith FM’s decision that the appellant was unable to articulate any arguable ground for judicial review.  Nonetheless, Smith FM said that he had carefully considered the procedures and reasoning followed by the RRT and had been unable to identify a jurisdictional error affecting its decision.

6                     Smith FM also gave consideration to the possible application of s 424A of the Migration Act 1958 (Cth) (‘the Act’) even though non-compliance with that provision had not been specifically relied upon by the appellant.  His Honour said:

‘15.      I should record that, although nothing in the applicant’s applications or submissions raised the question of compliance with s.424A of the Migration Act, the respondent anticipated that the Court might wish to consider that question in the light of the recent High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.  I have considered the Minister’s submissions, and accept that the reasoning of the Tribunal does not reveal a failure to observe an obligation arising under s.424A(1) to give to an applicant written notice of information used adversely.  In my view, the present Tribunal’s reasoning falls within the third proposition extracted from relevant authorities by the majority in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]:  

(iii)      the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].

16.       In the present case, I consider that the reason for the Tribunal affirming the decision was its assessment of the applicant’s claims made in relation to his visa application, and its identification of gaps and concerns arising from those claims which left the Tribunal unable to be satisfied that the applicant met the criteria under the definition of refugee.  The Tribunal had been left in that position by reason of the applicant’s decision not to attend the Tribunal to provide more information.  I therefore do not consider that the Tribunal was under any obligations under s.424A and s.424B, and therefore do not have to consider whether there is evidence bearing on whether or not a notice was served.’

The appeal to this Court

7                     The Notice of Appeal to this Court does not disclose any recognisable ground of appeal.  Ground 3 asserts that more details would be provided later, but this has not occurred.  On 27 July 2005 I ordered that the appellant should file and serve written submissions no later than five clear working days before the hearing date of the appeal, but no such submissions have been provided.  The appellant did file a document styled ‘Ammended Application’ on 29 August 2005 but this document does not show any recognisable ground of appeal.

8                     When the matter came on for hearing before me the appellant appeared for himself with the assistance of an interpreter.  I invited him to put before me any matters which he wished me to take into account in support of his appeal, but the appellant was unable to identify any error on the part of Smith FM.  That would ordinarily result in the dismissal of the appeal, however, like Smith FM, I have given independent consideration to the potential operation of s 424A of the Act. 

9                     Subsection 424A(1) obliges the RRT to give to the appellant for comment particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review.  Subsection 424A(3)(b) provides that the section does not apply to information that the appellant gave for the purpose of the application.  In Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (‘Al Shamry’), a Full Court held that the information to which subs 424A(3)(b) refers is information given by an applicant to the RRT for the purpose of the application for review, and not to information given on the original application for a protection visa: see [17] per Ryan and Conti JJ; [35] per Merkel J.  The ‘information’ (assuming it to be such) referred to in the passage of the RRT’s reasons quoted above was derived from the original application for a protection visa and the Departmental file.  It was not information given by the appellant to the RRT for the purpose of the application for review, hence subs 424A(3)(b) has no application.

10                  Two considerations therefore arise:

(a)        whether there is ‘any information’ for the purposes of subs 424A(1)(a); and

(b)        if so, whether it can be said to be information the RRT considered would be the reason or part of the reason for affirming the decision under review. 

These questions have been the subject of consideration by Full Courts in WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 (‘VAF’), by North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 965 (‘VBAP’) and by Allsop J in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200.

11                  Those Full Court decisions establish that ‘information’ in s 424A does not encompass a failure to mention a matter to the RRT.  An observation that an applicant failed to refer to a particular matter may constitute nothing more than an aspect of the RRT’s reasoning concerning a deficiency in his evidence.  Subjective appraisal and thought processes are not ‘information’ for the purpose of s 424A.  At [24] of VAF Finn and Stone JJ extracted a number of propositions derived from the cases concerned with the compass of the term ‘information’ in its subs 424A(1) setting.  One such proposition (omitting case citations) is as follows:

‘(iii)     the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’

12                  VAF is also authority for the proposition that information which is merely consistent, in its own way, with, and thus confirmatory of, a conclusion taken for other reasons, is not for s 424A purposes a part of the reason for that conclusion.  In VBAP North J explains that if there are a number of independent bases for the decision, then there is no jurisdictional error if at least one of them is immune from attack on s 424A or other grounds.

13                  Three matters are referred to by the RRT in the passage quoted above, namely:

(a)        the lack of detail in the appellant’s statement;

(b)        that the persecutory acts occurred in 1997, yet the appellant return to Pakistan in 1999 to see his mother; and

(c)        the delay in lodging the application for a protection visa.

14                  In the passage from the RRT’s reasons quoted above, the RRT has, in effect, stated that the appellant had provided little detail in support of his claims, and then gone on to identify two aspects of the appellant’s claims about which it wished to have further detail.  It was the absence of any explanation of the fact that the appellant  returned to Pakistan in 1999 to see his mother, and the absence of any explanation for the delay in applying for a protection visa that was of concern to the RRT having regard to the appellant’s claimed fears.

15                  On the authorities referred to above, the RRT’s assessment of the inadequacy of the appellant’s statement is not ‘information’ disclosable under s 424A.  The two illustrations which it gives of that inadequacy fall into the same category.

16                  The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 287,when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.  Thus, even though the RRT adverted to matters (b) and (c) in its reasons, what was integral to the RRT’s reasoning process was the notified inadequacy of the information provided by the appellant in support of his claims, and his rejection of the invitation to appear at a hearing designed to afford him the opportunity to elaborate on that information.

17                  Thus, even if I were wrong in my view that matters (b) and (c) were not disclosable ‘information’, the RRT did not commit a jurisdictional error because the matter referred to in (a) is sufficient to sustain the RRT’s decision.

18                  For those reasons I agree with the conclusions expressed by Smith FM on the issue of whether the RRT committed a jurisdictional error having regard to the provisions of s 424A of the Act.  The appeal should therefore be dismissed with costs.

Associate:

Dated:              15 September 2005