FEDERAL COURT OF AUSTRALIA

MZXIH v Minister for Immigration and Citizenship [2007] FCA 667

MIGRATION – Appeal from Federal Magistrate affirming decision of Refugee Review Tribunal – Claim made in original application not repeated before Tribunal – Whether  Tribunal complied with its obligations under s 424A of the Migration Act when it failed to provide the appellants with written particulars of information claimed in original application – Authenticity of police reports claiming appellant’s child a victim of an attempted kidnapping – Whether Tribunal’s failure to exercise its powers of enquiry in relation to the police reports constitutes jurisdictional error – No appellable error made out

Migration Act 1958 (Cth) s 424A

M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 referred to

NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205 considered

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 referred to

SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 referred to

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 cited

SZEOP v Minister for Immigration and Citizenship [2007] FCA 807

MZXIH, MZXII AND MZXIJ v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

136 OF 2007

Tracey J

15 June 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The name of the first Respondent be amended to read “Minister for Immigration and Citizenship.

2.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate dated 30 January 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 9 February 2006: see [2007] FMCA 75.  The Tribunal had affirmed a decision of a delegate of the first respondent (“the delegate”) dated 4 August 2005 to refuse to grant protection visas to the appellants.

2                     The appellants are a mother and her two children who entered Australia on 2 June 2005.  They are citizens of Sri Lanka.  They entered on one month visitors’ visas.  The first appellant claimed to have been an active supporter of the United National Party (“the UNP”) in Sri Lanka and, as a result, had been subjected to harassment and threats by political opponents throughout the 2004 election period.  The first appellant also claimed that one of her children was the victim of an attempted kidnapping and that she believed that the authorities did not act because of her political allegiances.  She alleged that a JVP politician had interfered with the police investigation.  The first appellant’s husband now works in the United States of America and the appellant claims that she fears raising her children alone in Sri Lanka.

3                     A delegate of the Minister refused the appellant’s application for a protection visa and she appealed to the Tribunal.  Prior to the hearing she forwarded written submissions to the Tribunal.  Attached to those submissions were what were said to be copies of two extracts from police information books.  They were written in Sinhalese and had been translated into English.  One referred to a report of the alleged abduction of the appellant’s son.  The other referred to an assault allegedly suffered by the appellant’s husband.  The first extract was tendered to support the claim that the appellant’s son had been kidnapped.

4                     The Tribunal accepted certain of the appellant’s claims.  However it rejected her claim that an attempt had been made to kidnap her son.  One reason for rejecting the claim was that country information suggested that political violence occurred in Sri Lanka at times when elections were being conducted.  The alleged attempted kidnapping had occurred in February 2005 at which time no elections were taking place.  The Tribunal also expressed doubts about the authenticity of the extracts from police reports but held that, even if they were genuine, they “would only attest to a report being made to a police station and could not represent evidence of the events described therein having occurred.”

5                     The Tribunal also held that it could not accept that those who had allegedly caused harm to the appellant were politically motivated.  The Tribunal said:

“The [appellant] has not provided convincing evidence that any harm she claims to have been subjected to was in fact perpetrated by political enemies.  She has made vague connections between the visit by members of the JVP who were clearly on a recruiting/fund raising campaign and the threats over the phone which she claims to have received.  She also indicated that she had received requests for money from many other parties.  The Tribunal accepts that she may have been approached by funds for a number of political parties given the obviously comfortable financial position in which the family is in, it accepts that she may have been threatened for not complying; the nature of these threats over the telephone has not been detailed to the Tribunal.  Even in her own alleged report to the police on the attempted kidnap of her son she states that people are attempting to extort money from her.  There is no mention of a political motive or that the would be perpetrators were political opponents.  The attempt to kidnap her son is said to have occurred almost a year after the said election and the loss of this election by the UNP cited as the reason that the applicant was importuned; both the timing and the reason do not appear likely given that political violence tends to occur around election time; the elections which followed the general elections of 2 April 2004 were the presidential elections of 17 November 2005.  The only indication of presumed political involvement is the original claims by the [appellant] that a certain JVP politician had “interfered with the police investigation”.  This claims (sic) was not reiterated at the hearing and does not sit well with the [appellant’s] insistence that the police did nothing following any of her complaints.  If there was a police investigation, this indicates that the authorities did take her claims seriously.  The [appellant] has provided no further comment on this presumed political interference.  The Tribunal does not accept that this politician interfered with the police investigation.”

6                     The first appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates’ Court.  She claimed that the Tribunal had erred when considering the authenticity of the police reports used to substantiate the claim that her child was the victim of an attempted kidnapping.  In particular, the first appellant claimed that the Tribunal had not complied with s 424A of the Migration Act 1958 (Cth) (“the Act”) by failing to provide her with written notice that a reason for its adverse decision would be her claim that the kidnapping investigation was neglected as a result of her political affiliations.  It was also claimed that the Tribunal had failed to exercise its jurisdiction by not making adequate enquiries as to the validity of the police reports, and did not have sufficient evidence to support a conclusion that they were not genuine.

7                     The Federal Magistrate rejected the submission that the Tribunal had erred by failing to meet its obligations under s 424A(1) of the Act.  He held that the appellant’s failure to reiterate a claim made at the time of her original application for a protection visa was not “information” for the purposes of s 424A.  He continued:

“[26]  I otherwise accept that the Tribunal in any event had not regarded the applicants’ failure to reiterate her claim about the JVP politician as part of its reasons for decision. 

[27]    I am otherwise satisfied that if the reference to the failure to reiterate the claim about the JVP politician could be regarded as information, then it was not made part of the applicant’s submissions and accordingly does fall within the exception pursuant to s 424A(3)(b) of the Migration Act.

[28]    Ultimately, what has occurred in this instance is that the applicant’s claim has been rejected by the Tribunal and as submitted by the first respondent, it cannot be said that a claim that is made and rejected by the Tribunal forms part of the reasons for the Tribunal’s decision.  The claim is not the information, according to the first respondent’s submissions, but rather it is the information relied upon in rejecting a claim that is relevant.  I accept that submission and, in my view, accordingly this ground should fail.  In reaching that decision, the Court is not assisted by other authorities referred to by counsel during the course of submissions.  The Tribunal in this case is simply noting a failure to reiterate a claim, and that in my view cannot constitute information of a kind which would attract the application of s 424A of the Migration Act.  As indicated, this ground should therefore fail.”

8                     In dismissing the claim that the Tribunal had failed to properly exercise its jurisdiction in relation to ascertaining the validity of the police reports, the Federal Magistrate noted that the Tribunal had made a finding that, even if the document was accepted as genuine, that would not necessarily represent evidence of the attempted kidnapping and was ultimately not a significant factor in the Tribunal’s decision.  While the Federal Magistrate commented that the Tribunal had dealt with this issue in a “somewhat unsatisfactory manner”, his Honour found that the Tribunal “proceeded to make findings where little or no weight was placed upon the police report and other factors were taken into account.”  The Federal Magistrate dismissed the application on 30 January 2007.

9                     The notice of appeal filed in this court on 19 February 2007 alleges that the decision of the Federal Magistrate was affected by jurisdictional error and that he ought to have made the following findings:

(a)               That the Tribunal denied procedural fairness to the appellant and breached s 424A of the Act by failing to provide particulars of information relied upon when dismissing claims of the attempted kidnapping;

(b)               That the Tribunal denied procedural fairness to the appellant and breached s 424A of the Act by failing to ensure that the appellant understood that a police report that had been provided would not be  accepted as evidence of the attempted kidnapping;

(c)               That the Tribunal failed to exercise its jurisdiction by making a finding in relation to the date printed on the police report when there was no evidence to support such a conclusion; and

(d)               That the Tribunal failed to exercise its jurisdiction by reaching a conclusion in relation to the police report when expert evidence and translation were required to contradict sworn evidence given at the hearing.

10                  At the hearing of the appeal counsel for the appellants identified two issues raised by these grounds.  They were:

·        Whether the Tribunal had failed to comply with s 424A(1) of the Act by failing to give the appellants written particulars “of the information that they had claimed in their application [for protection visas]… that a politician in Sri Lanka had interfered with a police investigation into an attempted kidnap of the first appellant’s child” which claim was not reiterated at the hearing.

·        Did the Tribunal fall into jurisdictional error by making findings which were not open on the evidence or by failing to exercise its powers of enquiry in relation to the extracts from Sri Lankan police records?

11                  The appellants contend that the Tribunal was obliged to provide them with notice that the claim of interference, by a politician, with the police investigation had been made in support of the original protection visa applications and that the failure to reiterate the claim at the hearing before the Tribunal might undermine, in the Tribunal’s mind, the veracity of the claim.

12                  The respondent contends that the Tribunal was not obliged to comply with the requirements of s 424A(1) in respect of this “information” because:

·        The appellants’ failure to reiterate the claim did not form “part of the reason” for the Tribunal’s decision.  This was because the Tribunal had found as a fact that “there was no attempt to kidnap the [appellant’s] son.”  If there was no kidnapping there was no report to the police and no police investigation to be interfered with.

·        A failure to reiterate a claim cannot constitute “information” within the meaning of s 424A.

·        If the original claim was “information” which formed part of the reason for the Tribunal’s decision that information was given by the appellant to the Tribunal for the purposes of its review and, therefore, it was information comprehended by the exemption provided for in s 424A(3)(b).

13                  I am prepared to assume, in the appellant’s favour, that the fact that the claim of political interference with the police investigation was made in support of the original applications but not reiterated at the hearing before the Tribunal constitutes “information” for the purposes of s 424A(1) of the Act.  However, the Tribunal is only bound to provide particulars of information “that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.”  Information will not be “a part of the reason” for affirming a decision unless it is established that the information “contributed in some way, which renders it an operative causal link, to the decision itself”: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 256 [182]; NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205 at 224 [79].

14                  The Tribunal’s reference to the failure by the appellant to reiterate the political interference claim was made in the paragraph of its reasons which is set out above at [5].  The context is important.  The paragraph deals with the question of whether any alleged persecution suffered by the appellant occurred by reason of her political opinion or imputed political opinion.  In dealing with this issue the Tribunal puts the appellant’s case, in relation to the existence of a Convention related reason for alleged persecution, at its highest and then discounts it.  Phrases such as “[e]ven in her own alleged report to the police on the attempted kidnap of her son …”, “[t]he attempt to kidnap her son is said to have occurred ...”, “[i]f there was a police investigation …” are suggestive of considerable scepticism.  The critical and operative finding was, however, that “there was no attempt to kidnap the [appellant’s] son.”  Once the Tribunal had reached this point in its reasoning nothing which it might have said as to the reason for the kidnapping or the reason for any alleged interference with a police investigation into it could, in my opinion, form an operative reason for rejecting the appellant’s claim.

15                  Moreover, there is force in the Minister’s contention that the claim about political interference had formed part of the claims made in support of the appellant’s visa applications and that these claims had been republished to the Tribunal when review of the delegate’s decision was sought.  Section 424A(3)(b) provides that the requirements of s 424A(1) do not apply to information which an applicant “gave” for the purpose of the application.  Most, if not all, cases in which s 424A(3)(b) has been invoked have been cases in which an applicant makes a significant claim before the Tribunal which was not made in support of the original protection visa application.  This case differs because a claim which was made in the original application was not repeated during the oral hearing before the Tribunal.  Section 424A(3)(b) could only operate in this case if the claims made in support of the original visa application were made (given) to the Tribunal by the appellant:  SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 222, 252, 256.

16                  A written submission was made to the Tribunal on behalf of the appellant.  Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal’s attention was directed to the appellant’s statement in support of her protection visa application.  Part of the submission read: “She has also been politically involved as can be seen from the statement she made in support of her protection visa application.”  As already noted, one aspect of the appellant’s political involvement was her work for the UNP which it was said led to the interference by a political opponent.  She thereby expressly relied on the information and invited the Tribunal to have regard to it:  see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25].  The Tribunal was, therefore seized of the political interference claim.  Was it also seized of the “information” that the claim had not been reiterated during the hearing which it conducted?  Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant’s account do not constitute “information” for the purposes of s 424A of the Act, the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205 at 212-13 that:

“There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant’s case) should be treated any differently, when it comes to s 424A, than a positive statement.  This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant’s case.  It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party.”

See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72].  Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute “information” for the purposes of s 424A.

17                  It follows that I agree with the Federal Magistrate’s alternative basis for rejecting this ground.  The Tribunal was not obliged to give particulars of the information relating to the alleged political interference with the police inquiry which was contained in the appellant’s original application and the information relating to her failure to mention the matter during her appearance before the Tribunal.  In both cases the “information” was given by her to the Tribunal.  Section 424A(3)(b) therefore applied.

18                  The second ground relied on by the appellants relates to the Tribunal’s treatment of the extracts from the police reports.  It is fair to say that the Tribunal had serious reservations about whether the extract tendered by the appellant supported the claim that her son had been kidnapped.  The Tribunal said that:

“The new (last) translation of the relevant document, purporting to be an extract of a report to … the police about an attempt to kidnap the [appellant’s] son, provided to the Tribunal did answer some of the concerns expressed by the Tribunal at the hearing about this document, namely that there was in fact an indication of the police station where the report was said to have been made.  This was not filled in on the last line of text but appeared as a wet stamp under the signature.  The Tribunal remains of the view that the space for the date in the top part of the document is there to indicate the date on which the report to the police was made, the time, page number and paragraph number of the police book in which it is found.  A place for the date of issue of the extract is provided on the bottom left hand corner of this form.  It has not been filled in in the document in question.  The applicant, in her response to the s 424A letter on this point, stated that the date “2005.02.17”, the alleged date of the incident, forms part of the declaration to the police Constable who actually copied the extract.  Although the Tribunal can see that this date is there in the Singhalese version, it is notable by its absence in both translations of both documents.  At the hearing the Tribunal asked that this clause be read by the [appellant] and it was confirmed that this was an indication of when this report had been made, that is 17 February 2005.  There is a further issue with the declaration by the Constable.  On the top of the document the page and paragraph number of the said report in the said book are cited as 321 and 145 respectively.  In the declaration, 350/145 appear.  The adviser has submitted to the Tribunal possible reasons for this less than accurate transcription from the police record book to the present document.  These are that the process of transcription itself, the purpose for which thought the document was being obtained and the different standards applying in Australia and Sri Lanka in the matter of legal documents.  At the hearing the Tribunal sought to establish who had obtained this report from the police; the applicant stated that it was her husband.  When further questions were asked when her husband had returned to Sri Lanka she replied that this had occurred on 5 November 2005, a copy of the relevant page from her husband’s passport showed that he had entered Sri Lanka on 9 November 2005.  The Tribunal asked how he could have obtained this report on 5 November if he was not in Sri Lanka.  The answer to this question came in the adviser’s response to the s 424A letter where in it is stated that “whilst the primary applicant’s husband collected the reports, and sent these back to the primary applicant, her uncle had made a request for the kidnapping extract before her husband returned to Sri Lanka.  This accounts for the earlier date on the kidnapping extract.”

The Tribunal does not accept that this document is evidence of the events described therein.  The Tribunal does not accept that the errors in it are due to mere administrative incompetence or perceived uses to which the document would be put, not (sic) does not accept that standards in different countries is a relevant issue when it is purported that this is a case made by a person of a portion of what was contained in another book and counter signed for accuracy not only by the person making the copy but also the officer in charge of the police station.  In addition, the Tribunal is not satisfied that the report was requested by an “uncle” and picked up by the [appellant’s] husband on his arrival in Sri Lanka; this in itself negates the view that the date on the top of the document is the date of its issue to the person requesting it.  The existence of this document, even if it were accepted as genuine, would only attest to a report being made to a police station and could not represent evidence of the event described therein having occurred.  The Tribunal therefore does not accept that the [appellant] was threatened by telephone as stated in the extract or that there was an attempt to kidnap her son from school;”

19                  The appellants complained that there was no evidence to support the Tribunal’s conclusion that the statements at the top of the police reports indicated the dates on which the reports were made rather than the dates on which the reports were sought.  The appellants further contended that the Tribunal was not entitled to form a view about the extract “simply on the basis of certain English words appearing; expert evidence was needed.”  Counsel for the appellants summarised the relevant submissions as follows:

“The appellant submits that the Tribunal was required to do more than perfunctorily dismiss the reports as, in effect, forgeries.  Such a strong adverse finding required a sound basis.  The appellant’s credit had not otherwise been destroyed.  It would have been a simple matter for the Tribunal to inquire, utilising its powers under s 427(1)(d) of the Migration Act and/or its own resources, in order to obtain a firm basis for a conclusion on the authenticity of the police reports.  It was not necessary that the confidentiality of the appellant be compromised.  The relevant information was on a proforma document, readily discernable (sic) from a police station in Columbo.”

20                  The Tribunal did not find that the police reports were forgeries.  It plainly did consider that they could not be relied on to support the particular claims being made by the appellant.  In the passage extracted above at [18] the Tribunal explains its reasons for concluding that “the space for the date in the top part of the document is there to indicate the date on which the report to the police was made”.  One reason was that there was provision elsewhere on the form for the date of extract to be written in.  There was also an issue about the accuracy of transcription from the police record book to the extract.  It is clear that the Tribunal carefully examined the extract before concluding that it could place little reliance on it.  The Tribunal explained its reasoning process.  Its conclusion was a finding of fact which was open to it.  Expert evidence was not required:  there was no allegation that the document had been forged.  The Tribunal’s misgivings were exposed to the appellant and she was, through her adviser, given the opportunity to respond to the Tribunal’s concerns.  She did so.  The Tribunal was under no obligation to make further inquiries in order to obtain further information to ascertain (if this were possible) whether or not there was evidence available through police sources or otherwise in Sri Lanka to support the appellant’s claim relating to the kidnapping of her son, the reporting of the incident to the police and the conduct of the police investigation. 

21                  The appeal should be dismissed with costs.

Associate:

Dated:         15 June 2007