FEDERAL COURT OF AUSTRALIA

SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1493

MIGRATION – proper construction of s 424A of the Migration Act 1958 (Cth) – where Tribunal relied on country information to reject aspects of appellant’s story – whether reliance transformed country information into information specifically about the appellant – whether appellant entitled to be told how and why Tribunal considered the country information undermined the appellant’s credibility.

MIGRATION – ambit of s 422B of the Migration Act 1958 (Cth) – proper construction of ‘in relation to the matters it deals with’.

MIGRATION – requirement on Tribunal to apply the law to facts rationally found – whether irrational for Tribunal to make adverse credibility findings – where appellant failed to mention serious attacks in statement supporting his application for a protection visa.

MIGRATION – requirement on Tribunal to consider whether it was satisfied that the appellant faced a real chance of persecution for Convention reasons – whether Tribunal only gave consideration to whether the appellant was a credible witness.

Migration Act 1958 (Cth) s 422B and s 424A

Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 not followed

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 followed

Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 applied

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 cited

VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 followed

WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 not followed

Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 followed

SZBDF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1299 of 2005

BRANSON J

25 OCTOBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents’ costs

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

introduction

1                     Three issues were argued by counsel for the appellant on this appeal from a judgment of the Federal Magistrates Court determining an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  They were:

(a)        whether the learned Federal Magistrate erred in the construction placed by his Honour on s 424A of the Migration Act 1958 (Cth) (‘the Act’);

(b)        whether his Honour gave proper consideration to whether the Tribunal acted in an arbitrary way and thus, in a way not authorised by the Act, in making an adverse credibility finding concerning the appellant; and

(c)        whether his Honour should have found that the Tribunal wrongly replaced the statutory test for entitlement to a protection visa with a credibility test.

SECTION 424a

2                     Section 424A of the Act relevantly provides:

‘(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.

(2)       The information and invitation must be given to the applicant:

(a)        except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)        if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(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.’

3                     The critical issue on this appeal so far as s 424A is concerned is whether the Tribunal was obliged to give the appellant particulars of country information upon which it placed weight in making its decision.

4                     The reasons for judgment of the Federal Magistrate note at [9] that the appellant argued in the Federal Magistrates Court that par 424A(3)(a) was:

‘… not applicable in his case because the country information used, directly affected him in the sense that it played a significant role in the Tribunal’s assessment’.

5                     At [10] his Honour’s reasons for judgment also note that:

‘… the applicant appeared to further clarify his complaint relating to s 424A by saying that what he was really aggrieved by was that, what the Tribunal thought about the information was not put to him.’

6                     The Full Court has recently given consideration to the proper construction of s 424A of the Act in VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 (‘VJAF’).  At [11]-[16] the Full Court observed:

‘The appellant first submits that the Tribunal’s failure to put to him, and to invite his comments upon, country information that it took into account after the hearing, constitutes a breach of its statutory obligation pursuant to s 424A(1) of the Act.  This raises the question whether the Tribunal was exempted from that obligation because the country information falls within the exception provided in s 424A(3)(a) of the Act.

Section 424A(1) obliges the Tribunal to give to the applicant for review particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review.  Both parties accept that this obligation is prima facieengaged in this proceeding.  The scope of the exception provided in s 424A(3)(a) is, however, at issue: “This section does not apply to information 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.”

The appellant contends that the information does not fall within the exception for two reasons.  First, the information, whilst not being specifically about the applicant is specifically about other persons, though unnamed.  Second, this information is not “just about” a class of persons of whom the applicant is a member, as it also concerns “how the Cambodian authorities deal with SRP members.”

Both contentions fail.  The first contention depends upon the characterisation of the information contained in the country reports.  These reports were prepared by human rights bodies and foreign governments and concerned two main themes: the political environment associated with the holding of local level commune elections in February 2002; and the general treatment of SRP members by the Government.  Those reports necessarily involved some reference to the people who took part in the events described therein.  But it does not follow that this was information specifically aboutthose persons, and it plainly was not.

The major premise of the second contention, as the appellant accepted, is that s 424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation.  Such a construction of the paragraph has been rejected by previous Full Courts.  The true construction of the paragraph is one whereby

reference to the class of persons in subs 424A(3)(a) is not another criterion to be met.  It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.

That was the view of the unanimous Full Court in VHAP of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since.

It must again be emphasised that the requirement for a Full Court to be satisfied that an earlier decision of another Full Court is plainly wrong before departing from it, is most unlikely to be satisfied by a mere repetition or development of arguments already authoritatively rejected.  It is to be regretted that at least three Full Courts have recently been invited to depart from the settled construction of s 424A(3)(a) on what appears to have been no more than a rehearsal of previously rejected arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92.  Much more is required: see Telstra Corp v Treloar(2000) 102 FCR 595 at 602-603 (Branson and Finkelstein JJ) and see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [28]-[30] (Lander J; Dowsett J and Hely J agreeing).’

7                     I conclude that it is not open to me to entertain the submission that the construction of s 424A accepted by the Full Court in VJAF is not correct.  Plainly therefore I must reject the submission that the Federal Magistrate erred in applying that construction of s 424A.

8                     Additionally the submission that the Tribunal transformed the country information into information specifically about the applicant by placing reliance on it in rejecting aspects of the story told by the appellant must be rejected.  This submission, when explored, came down to a submission that the appellant had an entitlement to be told why and how the Tribunal considered that the country information undermined the appellant’s credibility.

9                     In Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [95] Allsop J, with whom Heerey J agreed, observed:

‘… I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and  Multicultural Affairs  [2000] FCA 1109 at [54] that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal.  For example, as in Tin, supra, “information” does not extend to the subjective view in the mind of the Tribunal of the evidence, in that case that the applicant was “not credible” or, as here, that Mr John Knight appeared to give his evidence honestly.  However, the distinction can become very fine.  If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of para 424A(1)(b)) of information (for para 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.’

10                  As Allsop J’s observation makes clear, it is necessary to draw a careful distinction between subjective thought processes of the Tribunal and the information that has given rise to those thought processes.  Section 424A says nothing at all about the giving of particulars of thought processes.  The requirement to give particulars of information imposed by subs 424A(1) does not reach to information of the kinds identified in subs 424A(3).  For this reason the Tribunal’s thought processes concerning information of a kind identified in subs 424A(3) cannot transform that information into information to which subs 424A(1) applies.

11                  The appellant’s application to the Tribunal for review of the decision not to grant him a protection visa was made after 4 July 2002.  Section 422B of the Act, which appears in Div 4 of Pt 7 of the Act, thus had application (see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)).  Subsection 422B(1) provides:

‘This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’

12                  There is a division of opinion on the Court as to the ambit of subs 422B(1).  The division of opinion may be illustrated by comparing the approach adopted by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 (‘WAJR’) at [47]‑[59] and Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 (‘Moradian’) at [35]‑[37] on the one hand with the approach adopted by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 (‘NAQF’) at [50]‑[87] and Hely J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 (‘Wu’) at [21]-[23] on the other.  Although NAQF involved consideration of subs 357A(1) of the Act and Wu and Moradian involved consideration of subs 51A(1), rather than subs 422B(1), the cases provide relevant comparators because the three subsections are relevantly in identical terms.

13                  In WAJR at [57] French J said:

‘Section 422B provides that Div 4 of Pt 7 is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.  The “natural justice hearing rule” is not defined.  It is not necessary for present purposes to attempt an exhaustive definition.  It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the tribunal.  Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness “in relation to the matters it deals with”.  This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the tribunal.  The “matters” Div 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, that is, the conduct of reviews by the tribunal.’

14                  In Moradian Gray J adopted a similar approach to that adopted by French J in WAJR, concluding that the ‘matters’ dealt with by Div 4 of Pt 7 are those identified in the specific terms of the sections which constitute the division.

15                  In NAQF at [59]‑[60] Lindgren J said:

‘… on any reckoning the expressions “the matters it deals with” in subs (1) and “the matters they deal with” in subs (2) must have been intended to refer to something wider than the exact text of the enacted procedural requirements, otherwise those subsections would be superfluous.  It is inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind, to be found within Div 5 (or ss 375, 375A and 376 and Div 8A).  For example, within Div 5, s 360(1) provides as follows:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

If s 357A(1) signified that the natural justice hearing rule was excluded only to the precise extent that it would have required the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review” (with all that that provision implies – see [85]) and no further, s 357A(1) would have achieved nothing in the present respect:  the rule would survive as a ground for relief outside the parameters of s 360(1).

Once it is accepted, as it must be, that the expression “the matters it deals with” in s 357A(1) was intended to refer to a larger subject matter or larger subject matters than the exact text of the procedural fairness requirements to be found in Div 5, the question “How much larger?” inevitably arises.’

16                  Ultimately his Honour found it unnecessary in that case to determine the full reach of the expression ‘the matters it deals with’ in subs 357A(1).  However, in Wu at [23] Hely J observed:

‘The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2).  The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted whilst the applicant is offshore (s 57(3)): see NAQF at [59] – [60].’

17                  In my view the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively.

18                  As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal’s review process.

credibility finding

19                  I consider it appropriate to proceed on the basis that the submission of the appellant that the principle of legality required the Tribunal to apply the law to facts rationally found should be assumed to be correct (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59).  The allegation that the Tribunal applied the law to facts irrationally found, was based on the following passage from the reasons for decision of the Tribunal:

‘I do not believe that [the appellant] was attacked and beaten some seven or eight times by members of the BNP because of his membership of the Awami League.

In the first place …

Second, and more importantly, there were significant changes in the evidence which [the appellant] gave regarding these alleged attacks.  His protection visa application mentions only the December 1993 attack.  While I accept that applicants do not always give a full account of their situation in such statements, I do not believe that [the appellant] would have failed to mention serious attacks which resulted in him being hospitalised in this statement.  Furthermore, when asked to tell me about the first serious problem which he had faced because of his membership of the Awami League, he first mentioned the attack of December 1993.  He clearly understood the question that was being asked as before answering he asked me to confirm that I wanted to know about the first problem that he had experienced because of his political involvement.  However, he later changed his evidence to include sever attacks prior to that time, including at least two serious attacks.  I believe that [the appellant] concocted the claims regarding the earlier attacks when I asked him why he suddenly began to experience problems in late 1993.’

20                  Counsel for the appellant asked me to conclude that the statement which accompanied the appellant’s protection visa application did not imply that he had suffered no attacks earlier than late 1993.  I accept that this is the case.  Nonetheless, I do not accept that it was irrational of the Tribunal to proceed on the basis that an applicant for a protection visa might ordinarily be expected to make mention in a supporting statement, which touches on attacks made upon him, of serious attacks that resulted in his being hospitalised.

21                  The attack on the rationality of the Tribunal’s conclusion concerning the appellant’s credibility fails.

the statutory test

22                  It was argued on behalf of the appellant, in effect, that the Tribunal did not consider whether it was satisfied that the appellant faced a real chance of persecution for political reasons but rather gave consideration only to whether the appellant was a credible witness.  In my view this argument is not sustainable.

23                  The only basis upon which the appellant asserted a fear of persecution should he return to his country of nationality was that attacks against him because of his involvement with the Awami League would be renewed and that ‘[t]oday massive scale oppression is going on against the leaders and activists of the Awami League’.  That oppression may be understood to be by way of false charges and, perhaps, otherwise.

24                  The Tribunal’s reasons for decision include the following passage:

‘After considering all of the relevant evidence, I am not satisfied that [the appellant] faced serious problems because of his membership of the Awami League prior to his departure from Bangladesh or that the [sic] left Bangladesh because he feared persecution for reasons of political opinion.  I believe that he fabricated the claims regarding being attacked and falsely accused of murder for the purposes of obtaining a protection visa.

On the evidence currently before me, I am not satisfied that [the appellant] had any significant involvement in politics prior to his departure from Bangladesh.  Furthermore, even if I accept that he was a member of the Awami League and held a position on the executive of the local branch of the party, I do not accept the he faces a real change of being persecuted because of this if he returns to Bangladesh now.  While it is certainly true that violence is common in Bangladesh and that some people been [sic] detained or have faced false charges as a form of political harassment, the sources which I have consulted do not suggest that members and supporters of the Awami League who participate in political activities in a peaceful and legitimate manner are generally at risk of serious harm amounting to persecution as a result of their activities.  In these circumstances, I do not believe that there is a real chance that someone such as [the appellant], who did not face serious problems for political reasons prior to his departure from Bangladesh and has now has [sic] been absent from the country for 8 years, would face serious problems amounting to persecution for reasons of political opinion if he returned home now, even if he become [sic] involved in the Awami League in the manner he claims to have been involved prior to his departure.’

25                  As it was not suggested to the Tribunal that the appellant feared persecution for any reason other than his political opinion and membership of the Awami League the above passage discloses that the Tribunal did give consideration to whether it was satisfied that he faced a real chance of persecution for political reasons.

conclusion

26                  The appeal will be dismissed with costs.

Associate:

Dated:              25 October 2005