FEDERAL COURT OF AUSTRALIA

VWBF v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 851

MIGRATION – appeal from Federal Magistrates Court – rejection of application for review of Refugee Review Tribunal decision – Indian Christian evangelist – claim for refugee status based on fear of lack of effective protection against Hindu extremists – argued before FMC (i) no evidence to support finding of fact as to action by Indian police in response to attacks against members of religious minorities (ii) Tribunal did not ask “What if I am wrong?” – leave sought to raise further arguments (iii) failure to comply with s 424A Migration Act 1958 (Cth) in respect of information concerning appellant’s failings to return to site of home allegedly burned down by extremists and (iv) failure to deal with essential integers of appellant’s claim

Held -

(i)         On its proper construction finding did not mean literally Indian police always responded to such attacks.  There was conflicting evidence on the issue.  In any case, finding was not a jurisdictional fact;

(ii)        Doubt referred to by Tribunal was as to appellant’s evidence, not its own conclusion.  In any case, independently of its findings as to appellant’s credibility as to past events, Tribunal made findings as to chance of appellant suffering persecution within meaning of s 91R if he returned to India;

(iii)       Leave given to argue this point.  The information had been given in the appellant’s interview with the delegate and had been given to the Tribunal for the purposes of its review, within the meaning of s 424A(3)(b), by the interview being relied on in a letter from the appellant’s migration agent;

(iv)       Leave refused.  In any case, the Tribunal, having expressed doubts about the appellant’s version of past events, was not bound to make findings as to what in fact happened.

Migration Act 1958 (Cth) s 424A

VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1334 affirmed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 applied

Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443 applied

VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [13] applied

Minister for Immigration and Multicultural and Indigenous v Rajalingam (1999) 93 FCR 220 at [67] applied

Guo v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 191 CLR 559 at 574 applied

Abebe v Commonwealth (1999) 197 CLR 510 at [192] applied

SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [19] applied

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 discussed

Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 110 FCR 27 discussed

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 discussed

M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [24], [25] applied

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39] discussed

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 discussed

SZCKD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [34], [37] applied

SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [36] discussed

SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 cited

SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] applied

SZDPY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 627 at [35], [36] applied

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 discussed

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [16], [17] applied

VWBF v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1198 OF 2005

HEEREY

6 JULY 2006

MELBOURNE

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of India and a Christian.  He applied for a protection visa alleging a well-founded fear of persecution on the ground that the Indian authorities would be unable to provide him with effective protection against Hindu extremists.  His application was refused by a delegate of the Minister and on review by the Refugee Review Tribunal.  An application for review to the Federal Magistrates Court was dismissed by Hartnett FM:  VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1334.

2                     The appellant submits that the Magistrate erred in failing to find that the Tribunal committed jurisdictional error because:

·        there was no evidence to support a critical finding of fact by the Tribunal; and

·        having expressed doubt about some of its findings, the Tribunal did not proceed to consider the consequences if it were wrong.

3                     The appellant also sought leave to raise grounds which were not argued before the Magistrate namely:

·        the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth); and

·        failed to deal with essential integers of the appellant’s claims.

Protection visa application

4                     In a statement in support of his application for a protection visa the appellant stated he was born in 1956 in Chennai (formerly Madras).  He had been involved in evangelical work since an early age.  He married in 1982 and he and his wife have three children.  Since 1984 he and his family have become active members of the Church of God.

5                     He started preaching the Gospel in and around his villages.  Government officers told him that a lot of people living in the area were unhappy about his activities and that in the event of any problem the police and government officers would not protect him but he would be held responsible for starting the trouble. 

6                     On 7 June 1999 he organised a Gospel meeting in a village called Athanoor.  A group of Hindus attacked the appellant and his family with “very dangerous and sharp weapons”.  His fifteen year old son was injured.  The group destroyed a stage that had been erected.  They said that if they found him in these type of activities again they would definitely kill him.

7                     On 19 December 1999 he was returning home from preaching the Gospel.  Some strangers followed him, forced him into a car, took him to an old house and kept him the whole night and threatened to kill him if he continued with his preaching.  He was released the next morning.  When he appeared before the Tribunal he also said that when he was detained at this time he was beaten, his penis was pulled and his testicles squeezed, he thought in an attempt to make him sterile.

8                     In February 2000 he went to England and spent six months Gospel training. On his return to India in July he continued with his missionary work.  On 2 July 2001 a group of five Hindus came to his house and accused him of obtaining money from Christian countries to convert Hindu people.  He denied this but they did not believe him.  They demanded 10,000 rupees to guarantee his protection.  He said he had no money to give them.  They became upset and left, promising to set fire to his house and destroy his family.

9                     Two days later his house caught fire.  He and his family fled.  He informed the police and government officials about the burning down of his house, but they did not record his complaint nor take any action. 

10                  He left for Australia where he arrived on a visitor visa on 5 September 2001.  He applied for a protection visa on 25 September 2001.

No evidence for critical finding?

11                  The Tribunal’s finding for which it is said there was no evidence is the underlined section of the following passage:

“Aspects of the applicant’s account have led me to doubt that he has provided accurate accounts of what occurred.  I am unable to accept that on each occasion the police response to the applicant’s complaint was determined by the RSS [Rashtriya Swayamsewak Sangh] on account of the applicant’s involvement in Christianity and the concern that some Hindus have with such activity.  Independent information indicates that those Hindus who have attacked Christians are extremists and that most Hindus are not affiliated with the RSS or other extremist groups; it also indicates that the police across India have taken action to respond to attacks against members of religious minorities, that there is a large number of Christians in Tamil Nadu and that the government of Tamil Nadu has a history of support for religious minorities.”

12                  The Magistrate held (at [38]) that while some of the country information concerning India pointed towards difficulties experienced by religious evangelists, it was a matter for the Tribunal to weigh up the factual information that was before it.  The Tribunal did so, concluding that the evidence before it supported a finding of fact that:

“Indian authorities do respond to violent episodes perpetrated against religious minorities.”

13                  On the appeal counsel in his written submissions argued that the statement of the Tribunal was

“… an unqualified statement of general action on the part of the police.  The evidence before the Tribunal indicated significant attacks upon Christians and other religious minorities.  The authorities were unable to prevent all attacks and equally on the evidence accepted by the Tribunal the police did not respond to all attacks. …there was not evidence which indicated the global, unqualified proposition which the Tribunal based upon that evidence.” 

14                  Certainly there was before the Tribunal evidence of failure by police to respond to attacks on religious minorities.  For example in a United States State Department report dated 4 March 2002 it was said that the Indian Constitution provides for freedom of religion and the government generally respects this right in practice, however the government “sometimes does not act effectively to counter societal attacks against religious minorities and attempts by state and local governments to limit religious freedom”.  The report continues:

“Although the law provides for religious freedom, enforcement of the law has been poor, particularly at the state and local levels where the failure to deal adequately with intragroup and intergroup conflict and with local disturbances has abridged the right to religious freedom.  In particular, some Hindu extremist groups continued to attack Christians during the year.  In many cases, the government response was inadequate, consisting largely of statements criticising the violence against Christians, with few efforts to hold accountable those persons responsible or to prevent such incidents from occurring.”

15                  On the other hand there was some evidence in a US State Department report of October 2002, quoted by the Tribunal, which stated that the government “makes some effort, not always successfully, to prevent these incidents” of violence arising from tensions between religious communities.  The US report also states that the four southern states (including Tamil Nadu) are ruled by political parties with strong secular and pro-minority views which have a history of support for religious minorities and “which have attempted to assuage religious minority fears about religious tensions in the rest of the country”. 

16                  A United Kingdom Immigration and Nationality Directorate’s assessment of India (April 2003) stated in relation to violence against Christians in the Dang District of Gujarat Province that the Prime Minister of India had stated that the “government would not tolerate any further attacks on the Christian minority”.  The government had sent a team of officials to investigate the attacks, and security forces were deployed in the affected areas to guard missionaries and churches.

17                  To succeed on the “no evidence” ground the appellant would have to show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.  Thus the question is not whether the court on judicial review would have reached the same finding on conflicting evidence.  There was in the present case some evidence to support the finding, as properly understood. 

18                  The finding complained of must be identified accurately.  In the present case the appellant’s argument rests upon a misreading of the finding in question.  India is a vast country.  The Tribunal could not be reasonably taken as saying that it was satisfied that literally in every instance of attacks against religious minorities police across India have always taken action to respond.  Viewed in context, the point the Tribunal is making is that while there is some protection generally in India against attacks against religious minorities, the position in Tamil Nadu, where the appellant comes from, is more favourable.

19                  Further, to succeed on the “no evidence” ground, the fact of which there is said to be no evidence would need to be a jurisdictional fact, that is to say “an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry”: Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443, VXDC (2005) 146 FCR 562 at [13] (hereafter, unless otherwise indicated, all citations are to be taken as including the responsible Minister as a party).  The fact in question would fall within the second Willan category.

The “What if I am wrong?” test

20                  While the Tribunal referred several times to “doubt” as to the appellant’s claims, those references were to doubt about the appellant’s evidence, not about the Tribunal’s satisfaction as to its own findings: Rajalingam (1999) 93 FCR 220 at [67], cited by the Magistrate at [44]. 

21                  In any event, the Tribunal had an alternative basis for its ultimate non-satisfaction as to the protection visa criteria.  The Tribunal did not rely only on its findings as to the appellant’s lack of credibility on his account of alleged past events.  The Tribunal said that, notwithstanding the rejection of most of his evidence about the adverse consequences of his involvement in Christian evangelism in the past, its focus must be on what would follow his return to India in the reasonably foreseeable future.  This was correct.  The fundamental task of the Tribunal was to form an opinion as to what was likely to happen to the appellant if he returned to India: Guo (1997) 191 CLR 559 at 574.  What had happened to him in the past in that country was a relevant, but not essential step: Abebe v Commonwealth (1999) 197 CLR 510 at [192].

22                  The Tribunal accepted that the appellant might try to continue Christian evangelical work, but its consideration of all the evidence led it to conclude that the chance that he would face serious harm because of his religious practice was remote.  In particular, the Tribunal noted that his home state of Tamil Nadu, including its capital Chennai, has a strong Christian community and a large proportion of all of India’s missions.  Some 12 per cent of its population are Christian.  In the Tribunal’s view, it was possible that the appellant might experience some harassment because of his religious activities, as he probably had in the past, and as independent information indicates can occur, but there was not more than a remote chance of such harassment being of a kind which could amount to persecution, that is to say the serious harm envisaged by s 91R of the Act.

Section 424A

23                  First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate.  For the reasons given in SZCJD [2006] FCA 609 at [19], I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2.  In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the “unanticipated but potent combination” of the Full Court’s decision in Al Shamry (2001) 110 FCR 27 and the High Court’s decision in SAAP (2005) 215 ALR 162.  It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005.  Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 

24                  Section 424A(1) provides that the Tribunal must give to applicant 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”, ensure that “the applicant understands why it is relevant to the review” and “invite the applicant to comment on it”.  The information and invitation must be given in writing.

25                  However, subs (3) provides that the section does not apply to certain sorts of information, including information “(b) that the applicant gave for the purpose of the application”.  In Al Shamry the Full Court held that “the application” means the application for review by the Tribunal and does not include the information given by the applicant for the purposes of the initial visa application to the Department.  In SAAP a majority of the High Court held that if s 424A(1) applies, the obligation is not satisfied by putting the information orally to the applicant in the course of the Tribunal hearing.

26                  The s 424A argument in the present case was founded on the Tribunal’s use of something said by the appellant in an interview with the delegate. In the interview the appellant said that after his house was burnt down his family moved into a hut built on the same site.  The Tribunal said (the following appears as one paragraph in the Tribunal’s reasons):

“My doubt about the accuracy of the applicant’s evidence has also followed my consideration of his evidence about where his wife and family have been living.  He told the delegate that he and his family had moved after the fire.  He said that about a month after he came to Australia a hut was constructed on the land and his family went to live there.  He told the delegate at the interview on 13 March 2002 that his family had been threatened and asked about the applicant’s whereabouts and that they were living in constant fear.

He said at the hearing on 18 August 2003 that his family had moved a few months previously because of the problems. 

If the applicant’s family were living in constant fear in March 2002, then it is difficult to accept that they would have remained in the hut on the land until, it appears, July 2003 when there have been relatives and friends who they have been and are able to live with.  The evidence about the circumstances of his wife and children added to my doubt that the applicant was providing an accurate account of what occurred.  His evidence that his family were harassed and living in fear and that his son was twice attacked – in June 1999 and while the applicant was away in England in 2000 – appeared to indicate that this was a consequence of the applicant’s religious activity yet he said that they were not targeted and that it was he who was sought appeared to me to be contradictory. 

I am not able to accept that the applicant’s evidence that his family were living in fear of coming to harm because of the applicant’s involvement in religious activity is credible.”

27                  Counsel on the appeal accepted that the issue about the family moving back to the site of the burned out home was not discussed at the hearing before the Tribunal but had been mentioned in the interview with the Delegate. 

28                  Under cover of a letter of 9 December 2002 a migration agent acting for the appellant sent to the Tribunal a further statement by the appellant of the same date which was said to be “in support of his refugee application”.  The statement commenced:

“I have already sent a statement to the RRT giving a detailed account of verbal and physical attacks on me and my family and my personal experiences in the hands of RSS and Hindu Brahmin extremists.

In this statement, I will try to present the current situation in my country INDIA.  I am presenting the INDIAN situation in general with special emphasis to my situation as an average Indian Citizen, attempting to lead a truthful and Christian way of life as an Evangelist. 

In this connection, please refer the following documents:

1.         My statement to the DIMIA in support of my visa application

2.         My tape recorded interview at the DIMIA on 13th March 2002

3.         Protection Visa Decision Record dated 8/4/2002 from the DIMIA

4.         INDIA – Country Reports on Human Rights dated 4th March 2002 US State Department … Document marked No. 11

5.         My statement to the RRT in support of my review application

If the RRT considers the above documents, it will be clear that, there is consistently in all what I have said to the DIMIA, both in my written statement and at my interview.”

The statement goes on to refer to extracts from the Department decision record. 

29                  It was not in dispute that the facts about the appellant’s family moving back to the home site was “information” for the purposes of s 424A(1) or that such information, and the use the Tribunal made of it, was part of its reason for affirming the decision to refuse to grant the visa.  The Tribunal did not give the appellant written particulars of, or explain the relevance of, this information.  Nor did the Tribunal do so orally at the hearing. 

30                  I therefore accept that the Tribunal failed to comply with s 424A(1).  The critical question then becomes whether the information in question fell within the exception created by s 424A(3)(b).  If it did not, jurisdictional error will have been established: SAAP.  It will be necessary to look at some of the recent authorities dealing with subs (3).

31                  In M55 [2005] FCA 131 Gray J had to deal, amongst other things, with an argument that the Tribunal had wrongly relied on the use by the applicant of his Sri Lankan passport on several occasions in leaving that country, the inference being that because the Sri Lankan authorities had not confiscated it they had no interest in him.  His Honour held (at [24]) that the Magistrate was wrong in finding that the provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s 424A(1).  However, in his Honour’s view that was not the end of the matter.  He held (at [25]) that because, by means of the written submission of his counsel to the Tribunal, the appellant replied expressly on the terms of his protection visa application he thereby invited reference to the copy passport which was attached to his application form.  There could be little doubt that the appellant intended that the Tribunal should look at this material.  His Honour said:

“In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review.  This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act.”

32                  In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form.  The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant’s oral evidence before the Tribunal as one of the reasons for rejecting his claim.  The inconsistency was put orally to the appellant in the course of the hearing.  Jacobson J held that s 424A(1) was not complied with.  It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct.  Counsel for the Minister relied on Gray J’s decision in M55. 

33                  Jacobson J said (at [39]):

“In my view it cannot be said that the appellant himself provided the information in the protection visa to the (Tribunal) as part of his application.  The passage set out at [11] indicates that the (Tribunal) raised the issue of the protection visa application form and the answers contained in it during questions asked in the course of the hearing.  The (Tribunal) then put the inconsistency in the information to the appellant as a possible basis for finding that the claim had been fabricated….” 

34                  It would seem that Jacobson J did not regard Gray J’s decision in M55 as wrong.  Rather, that case was to be distinguished on the basis that there the appellant had expressly adopted and put forward as part of his application to the Tribunal the earlier information whereas in NAZY the appellant had adopted the earlier information in answer to a question from the Tribunal. 

35                  In SZEEU [2006] FCAFC 2 a Full Court dealt with five cases raising s 424A points.  In one of these cases, the appeal in SZBMI, the appellant had said in his protection visa application that he had fled from Bangladesh (referred to in the case as “the flight information”).  This was drawn to the appellant’s attention by the Tribunal but no particulars in writing were given.  The Tribunal recorded that the appellant had confirmed at the hearing that he had read his protection visa application statement before signing it and that it was true and correct. 

36                  Moore J (at [20]) did not accept that “by adopting the statement at the hearing before the Tribunal the flight information was transformed into information provided by the appellant in his application review”.  His Honour went on to say:

“If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in  the present appeal) being comprehended by s 424A(3)(b).  Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review.  In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate.  However, it cannot be said, in this case, that the Tribunal acted in such a way.”

His Honour said that NAZY was correct.  His Honour did not further explain the distinction between mere adoption and the fact of the adoption.  I am not sure that I understand it.   

37                  Weinberg J said (at [157]):

“The adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review.”

38                  Allsop J (at [219]) agreed with Moore J that the flight information was “information” within the meaning of s 424A(1) but held, contrary to Moore and Weinberg JJ, that such information was part of the reason for affirming the decision.  His Honour did not deal expressly with the subs (3) point.

39                  M55 was not mentioned in SZEEU.  Implicitly the members of the Full Court accepted that Jacobson J was correct in treating M55 rightly decided, but distinguishable. 

40                  In another of the cases dealt with in SZEEU, the case of SZDXA, the relevant information was that the appellant had entered Australia on a business visa.  The Tribunal originally came to know this from another source but as Moore J said at [91]:

“… it is tolerably clear from the Tribunal’s reasons that it discussed this fact … with the appellant and he affirmed he had.  Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.”

41                  The distinction between this case and SZBMI (see [35]-[37] above) was not explained. 

42                  In dealing with the same case Weinberg J said at [179]:

“… if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant.  If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy:  see generally SZEFM [2006] FCA 78 per Bennett J.  This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception.  If, however, the Tribunal proposes to use the earlier statement as the reason or part of the reason for affirming the decision under review rather than the later adoption, it must comply with s 424A(1).”

43                  In SZCKD [2006] FCA 451 the Tribunal relied in part on the absence of certain information from the applicant’s protection visa application, which was referred to before the Tribunal.  Graham J noted that the appellant’s migration agent sent to the Tribunal a 31 page fax which included a statutory declaration made by him in the course of his application for a protection visa.  His Honour said at [34] that the “inescapable conclusion” was that all of the information contained in the fax, which constituted the application for review as submitted to the Tribunal by the appellant’s agent, constituted information that the appellant gave for the purpose of the application within the meaning of s 424A(3)(b).  His Honour referred to the statements already mentioned from SZEEU and (at [37]) distinguished the case before him saying:

“This case is quite different from one where in the course of a hearing before a Tribunal member an earlier statement was adopted.  In this instance the information to which the Tribunal referred in its reasons was information derived from the documents which the appellant gave to the Tribunal for the purpose of the review application.” (Emphasis in original)

44                  In SZGGT [2006] FCA 435, a decision handed down on the same day as SZCKD, the Tribunal had stated in its reasons that it had the Department’s file before it and had considered its contents.  In his letter in support of the application for review to the Tribunal the appellant, dealing with the reasons he had left China, said “As I explained before” and “I gave full explanations in my previous statement”.  Rares J rejected the Minister’s argument that the incorporation by this reference was of everything which the appellant had put before the delegate, and not just so much of the material as related to the events surrounding his leaving China.  His Honour said (at [36]) that when it is sought to say that a person “republished” something which had been provided at a different time, an objective assessment is called for.  After reference to the concept of objective assessment in the law of defamation, contract, trade practices and passing off, his Honour concluded that a subjective criterion could not have been intended by Parliament in the case of s 424A.  His Honour noted the earlier decision of SZDMJ [2005] FCA 1034 where Gyles J held that there was a “clear republication of original claims made in a declaration by the applicant as part of his application for review”..”

45                  In SZCJD [2006] FCA 609 I rejected a s 424A argument primarily because the protection visa application and its characterisation as vague and general were not the Tribunal’s reason or part of its reason for its decision.  I held (at [42]) that in any event s 424A(3)(b) applied as the applicant had given the information in the course of answering the question put by the Tribunal. 

46                  In SZDPY [2006] FCA 627 the Tribunal had relied on the appellant’s educational history in India and in Australia as a basis for its finding as to the reasonableness of relocation within India.  The appellant conceded that at the hearing before the Tribunal he had done more than simply adopt information concerning his education in Australia; in response to the Tribunal’s questioning he had actively given details of his education in this country.  However, he argued that answers regarding his education in India were in response to leading questions from the Tribunal where in effect he was asked to do no more than confirm the details in his original visa application. 

47                  Kenny J found that the appellant specifically provided the Tribunal with his Indian education details.  Her Honour (at [35]) rejected the submission that the information did not fall within s 424A(3)(b) because it was given in response to questions in the nature of cross-examination.  The Tribunal’s questions “were specific and arose, naturally enough, from the appellant’s visa application”.  Her Honour considered that SZEEU supported the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by s 424A(3)(b), even if it came from another source.  Her Honour found (at [36]) that the appellant did not “merely adopt” the education information in his visa application.  At the Tribunal hearing he “separately and specifically” gave detailed information about his Indian education.

48                  For no apparent reason, almost all the discussion of s 424A(3)(b) in the cases proceeds on the basis that the provision uses the word “provide”.  The subsection in fact uses the verb “to give”, which simply conveys the notion of delivering or handing over (Shorter Oxford English Dictionary).  If this matter were free from authority, there would be much to be said for the view that an applicant “gave” information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered.  Either way, the information is conveyed from applicant to Tribunal.  If we were to read or hear “At the trial, A gave information about fact X to the court”, we would take that as equally comprehending the possibility of A giving evidence about X in chief, or in cross-examination, or in answer to a question from the judge.

49                  Likewise, if an applicant says to the Tribunal “What I said in my visa application is true” and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application. 

50                  Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.

51                  In any event, in the present case, the information in question was positively advanced on behalf of the appellant in the letter of 9 December 2002.  The reasoning in M55, SZCKD, SZCJD and SZDPY applies.

Failure to make findings

52                  Counsel submitted that the Tribunal had to determine “substantive issues which arise on the evidence and material before it”.  He referred to a number of instances where the Tribunal had used expressions such as “The evidence … has led me to be unable to accept that the essential and significant reason for the assault was his religious practice”, “Aspects of the applicant’s account have led me to doubt that he has provided accurate accounts of what occurred”, and “I am unable to accept the accounts he has provided of what occurred in June and December 1999 are accurate” etc. 

53                  I would not grant leave to raise this argument.  There is no explanation for it not being raised before the Magistrate.  In any event, it has no reasonable prospects of success.  The Act imposes no obligation to make positive findings in accepting or rejecting claims: VSAF [2005] FCAFC 73 at [16]-[17].  In a situation like the present one where the Tribunal expresses doubts about the appellant’s account of specific events, it is unreal to expect the Tribunal to go on and make positive findings as to what in fact did happen.

Orders

54                  The appeal will be dismissed with costs.

Associate:

Dated:              6 July 2006