FEDERAL COURT OF AUSTRALIA

SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405

MIGRATION – s 424A (1) – obligation to provide particulars of information relied upon – substance and relevance of the information relied upon by the Tribunal not disclosed to the appellant – insufficient connection between the appellant’s circumstances and subject matter of evidence – failure to comply with requirement – s 424A (3)(a) exception does not apply – jurisdictional error established – appeal upheld.

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

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572

Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298

NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82

WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330

SZLIQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 487 OF 2008

BUCHANAN J

15 SEPTEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is upheld.

2.                  The first respondent pay the costs, if any, of the appellant before the Federal Magistrates Court of Australia and of this appeal.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1                     This appeal will be upheld. 

2                     The appellant claimed to be a farmer in China who feared persecution in her own country after she protested against the local Party Secretary who, she said, had misappropriated her farmland.  She said she organised protests and that she was subjected to mistreatment and persecution by the police as a result.  Her further activities were said to expose her to immediate arrest.  The detail of all her claims does not require further analysis because the ground upon which the appeal will be upheld is a narrow one.

3                     The appellant arrived in Australia on 13 January 2007 and applied for a protection visa on 26 February 2007.  A delegate of the first respondent (the Minister) decided to refuse the grant of a visa on 19 March 2007.  The same day the appellant applied to the Refugee Review Tribunal (‘the RRT’) for review of the delegate’s decision.  The RRT held a hearing on 22 June 2007.  During the hearing, the RRT records:

‘The applicant stated she planted rice, peanuts and sweet potatoes.  She stated the sweet potatoes were planted in mid April.  She stated they grew for 2 months and were harvested in mid June.  She stated she planted sweet potato 5 cm apart.  She stated that rice was planted in March (Spring) and took 3 and half months to grow and was harvested in mid June.  She stated the peanuts were also planted in March, took four months to grow and were harvested in mid July.’

4                     It is not clear under what circumstances these statements were made but it seems reasonable to infer, in the light of other material to which reference will be made, that the statements were made in answer to questions put to her by the RRT.

5                     On 17 July 2007 the RRT wrote to the appellant in a letter addressed to her authorised recipient.  The letter was clearly written in order to comply with the obligations on the RRT imposed by s 424A of the Migration Act 1958 (Cth) (‘the Act’).  Section 424A of the Act provides as follows:

‘(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.’

6                     The effect of s 424A(2) is that the information conveyed to the applicant and the invitation to comment must be in writing.  The letter in part said:

‘Your knowledge of farming

At hearing on 22 June 2007 you stated you planted sweet potato 5 cm (or 2 inches apart).

Evidence before the Tribunal suggests you should plant sweet potato 15 to 18 inches apart.  This may lead the Tribunal to conclude you do not have knowledge that is consistent with the claim you planted sweet potato or that you are farmer.  This may lead the Tribunal to conclude that you are not telling the truth.’

7                     There were other matters which were also raised but it is not necessary to discuss them.

8                     In neither the letter to the appellant nor, later, in its decision did the RRT state the source or nature of the ‘evidence’ which it said was before it.  I think that probably the failure to identify the nature of the evidence was itself a breach of the obligation in s 424A(1)(a) but, in light of further material to which reference will be made it is not necessary to reach a final decision about that issue.  There is no doubt, however, that the issue was relevant to the RRT’s deliberations and was one of the reasons why the RRT formed a view adverse to the appellant about her credibility.  The RRT said:

‘At hearing, the applicant did not display a knowledge of farming and in particular of sweet potatoes that was commensurate with her alleged farming activities.  The applicant subsequently stated she made a mistake, she did not know the exact meaning of centimetre and she did not know how long 1 centrimetre [sic] was.  The Tribunal has considered this submission however does not accept it.  That is because when the Tribunal asked how far apart did she plant sweet potato, the applicant measured the distance in centimetres.  The Tribunal finds that if she did not understand that word, then she would not have used it and would have measured the distance in another way.  The Tribunal does not believe that the applicant has ever planted sweet potato.  This leads the Tribunal to conclude she is not telling the truth about her farming experience.  The Tribunal considers that this goes to the very basis of her claims that her farming land was taken and sold by the Party Secretary.’

9                     After the RRT affirmed the decision of the delegate in a decision handed down on 23 August 2007 the appellant applied to the Federal Magistrates Court of Australia (‘the FMCA’) for judicial review of the RRT.  It is apparent from the decision of the FMCA (SZLIQ v Minister for Immigration and Anor [2008] FMCA 382) handed down on 19 March 2008 that the FMCA had reservations about the approach taken by the RRT but concluded that the RRT’s findings of fact were effectively immune from review.  In the course of its decision the FMCA identified the source of the ‘evidence’ to which the RRT referred in the letter of 17 July 2007.  I shall set out the relevant passage in the decision of the FMCA before some further discussion of this issue.  The FMCA said at [5]-[6]:

‘The concerns which the Tribunal had with the responses given by the applicant were articulated by it in the s.424A letter, which is extracted at [CB 105] in the Tribunal's record of decision.  The concerns raised included the applicant's knowledge of farming, her husband's presence at the farm and her alleged leadership of the group.  In relation to her knowledge of farming the Tribunal had serious concerns about the distance between each planting of sweet potatoes.  The applicant stated that she had planted sweet potatoes approximately 5 centimetres apart, whereas the Tribunal, apparently relying upon a book by Alan Searle [sic], entitled "Growing Vegetables" [CB 74‑75] asserted that a farmer in China would plant sweet potatoes 18 inches apart.  The applicant responded in her statutory declaration that she did in fact plant the sweet potatoes between 15 and 18 inches apart and she did not know the exact meaning of a centimetre.  The Tribunal took the view that this response was not acceptable because the applicant had herself referred to centimetres in answer to the original question and therefore she must have understood what a centimetre was:

“The Tribunal finds that if she did not understand that word, then she would not have used it and would have measured the distance in another way.  The Tribunal does not believe that the applicant has ever planted sweet potato.  This leads the Tribunal to conclude she is not telling the truth about her farming experience.  The Tribunal considers this goes to the heart of what she was doing in China and goes to the very basis of her claim that her farming land was taken and sold by the party secretary.”

It is not for this court to cavil with the Tribunal's findings of fact, even if it might disagree, and disagree strongly, with the conclusions reached provided those conclusions are available on the evidence (see: Minister for Immigration v Eshetu[1999] HCA 21 at [40] per Gleeson CJ and McHugh J). If the applicant's failure to plant sweet potatoes at the distance recommended by Mr Searle [sic] was the only ground upon which her application was to be rejected a court might have serious concerns. But in fairness to the Tribunal, although what appears to be an inordinate amount of emphasis has been placed on this fact, it was by no means the sole reason for the rejection of the applicant's evidence and is just part of its general concern as to her credibility because of the way in which she appears to have trimmed her responses and provided evidence that the Tribunal considered to be implausible…’

10                  The Appeal Book in the present appeal contains an extract (consisting of only several pages) from the publication ‘Growing Vegetables’.  The author is Allan Seale.  On what appears to be the back cover of the book the following appears:

‘An expert’s guide to the home growing of garden fresh vegetables.  All you need to know about  Preparing the beds  Soil  Plant Foods  Mulching  Watering  Cultivation  Weed Control  Sowing Seeds  Direct Sowing  including details of thirty-eight vegetables and their individual requirements.’

11                  On what is numbered p 59 the following appears in relation to sweet potatoes:

‘SWEET POTATOES

  Preparation of Soil and Sowing – Sweet potatoes will grow in poor soil, but for best results the soil should be prepared as suggested for potatoes.  They are propagated by placing tubers in moist soil during spring then striking pieces as cuttings when 4 to 6 inches long.  They root readily in sandy soil.  The plants are set out in rows 30 inches apart with 15 to 18 inches between the plants.  Vines are lifted occasionally to prevent them from rooting down at the joints.

Tubers are dug when plants commence to die down in winter and then stored in a cool dry place.  They are ready to cook if  they dry white when cut.  Exuded sap and greenish black discolouration suggests immaturity.’

12                  This seems a very flimsy foundation upon which to pose questions, much less draw conclusions, about farming practices in what appear to have been small village plots in China.  Assuming, for the moment, that s 424A(1)(a) applied, it does not appear to me that the information provided to the appellant in the letter of 17 July 2007 complied with it.  Details of the source of the ‘evidence’ should have been given.  The appellant should have had an opportunity to make some comment upon whether the source upon which the RRT relied was relevant to her claimed activities in China.  I have not overlooked the fact that the appellant’s response to the letter of 17 July 2007 is not to her credit.  That response was:

‘1.        I have to accept that I actually planted sweet potato about 15 to 18 inches apart.  I apologised for my mistake.  I have only had 3-year education.  I really did not know exact meaning of centimetre (cm)”; and I really did not know how long it would be for 1 “centimetre (cm)”.’

13                  The RRT might have been correct to conclude that the appellant’s response was an indication that she was not to be believed.  That is not to the point.  The obligation under s 424A, if it applied, is a strict one.

14                  The issue which I have identified was not a ground relied upon by the appellant in her application for judicial review before the FMCA and it is not a ground in her appeal to this Court.  However, I do not think that the issue can be overlooked.  When the appeal came on for hearing, on 14 August 2008, I raised my concerns with Ms McWilliam, who appeared for the Minister.  She sought, and I allowed, an opportunity to make further written submissions about the issue.

15                  In the written submissions which were duly provided Ms McWilliam advanced a number of arguments in support of the contention that no jurisdictional error was committed or, at worst, any error should be regarded as inadequate to found relief as a matter of discretion.  It is not necessary for me to address all the points she made, some of which are not directly concerned with the basis of my reservations about the present matter.  The submissions which require attention were the following (which I shall refer to as points 1, 2 and 3):

‘5.        It is well established that s 424A(3)(a) is to be construed as being directed towards general information, rather than requiring satisfaction of two separate limbs, the first being that the information is not specifically about the applicant and the second being that the information refers to a class of persons of which the applicant is a member: NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264 at [67]-[71], [138].

7.         If, contrary to the first respondent’s submissions, the Court determines that s 424A of the Act does apply, then there was no failure to comply with that provision, as a letter was sent to the appellant, setting out the substance of the information (AB97-98), and its relevance.  The Tribunal was not obliged to either specify, or to provide to the appellant, the particular source documents relied on: see NAVM v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 99 at [32]-[33].

8.         In response to a concern of the Court that the information relied on by the Tribunal may not have been applicable to farming in China, again it is well established that the choice and assessment of the information relied on by the Tribunal is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11-13].  Any investigation as to whether there was more appropriate information on farming available which the Tribunal should have considered is tantamount to merits review, an unavailable avenue of appeal in both this Court and the Court below.’

Point 1

16                  With respect, a confusing position has arisen from discussion in various cases about the construction of s 424A(3)(a) (compare and contrast the judgments of Full Courts in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (‘VHAP’) esp. at [13]-[14]; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 (‘NAMW’) esp. at [124]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 esp. at [43]-[46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; and Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298 esp. at [19]).

17                  The view which has prevailed is that expressed, although for different reasons, by the majority judgments in VHAP and NAMW that what is arguably a second limb or element to be satisfied in s 424A(3)(a) is not the legislative expression of another criterion to be met but 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’ (see VHAP at [14]; NAMW at [138]).

18                  I would, of course, be bound to defer to Full Court authority directly in point and obliged to respect decisions of other judges as a matter of comity.  I would need to determine an appropriate and principled response to, and proper resolution of, any conflict of authority which was presented about matters I need to decide.  However, in the present case none of these issues arises for consideration, much less resolution.  In my view it is clear that the information upon which the RRT relied was not excluded by s 424A(3)(a) because it was neither about the appellant specifically nor about any class of which she was a member to which s 424A(3)(a) could conceivably rely.  The information was not ‘country information’ about China.  It had nothing to do with persecution on Convention grounds.  It was about growing vegetables in Australian home gardens by Australian home gardeners.  Its only use was to impeach the credibility of the appellant.

19                  In my view, therefore, the RRT was obliged to comply with s 424A(1)(a) and (b).  Failure to do so would be a jurisdictional error.

Point 2

20                  I do not accept that the RRT set out the substance of the information and its relevance.  The passages relied upon by Ms McWilliam from NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 are as follows:

‘32.      I further accept the Minister’s submission that the form that disclosure of material must take will depend on the nature and context of the decision.  It must be borne in mind that the Tribunal is a non-judicial, inquisitorial body (i.e. there is no contradictor), with a heavy case load, which is enjoined by statute to be, inter alia, economical and quick and yet to act according to substantial justice.  Tribunal members commonly draw on a body of accumulated knowledge which may encompass a large number of documents.

33.       The authorities confirm that procedural fairness requires an applicant to be acquainted with the issues upon which the decision will turn, so that he or she may put a case concerning them.  In protection visa decisions, that does not (at least ordinarily) require provision of, or reference to, particular documents.  It is sufficient if the ‘substance’ of the ‘information’ is conveyed, so that the applicant may put arguments about its relevance or adduce whatever competing material is available to him or her.  In my view, that was done in the present case.’

21                  Apart from the fact that it would impose no burden at all upon the RRT to provide the very limited extracts from Mr Seale’s book which its own researches had uncovered, the critical absence of any apparent connection between the appellant’s circumstances in China and the subject of the book was a matter, in my view, of considerable substance.  I see no basis for any assumption that there was a sufficient connection.  Mr Seale’s book was not identified in the delegate’s decision as part of the material before the delegate.  There is nothing in that decision which might have alerted the appellant to the possibility that such a publication might be used to test her claims about farming practices in China (cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).  The RRT decision does not make any reference to Mr Seale’s book either.  The only reference to any ‘evidence’ it had about the subject of planting sweet potato was given by setting out verbatim the letter written to the appellant on 17 July 2007.  Nothing in the decision itself indicates how a pronouncement about growing vegetables in Australian home gardens might relate to farming practices in China.

22                  In my view the substance and relevance of the information which the RRT had obtained was not disclosed and the requirements of s 424A were not thereby met.

Point 3

23                  I do not need to enter upon any enquiry about whether the information ‘relied on by’ the RRT was ‘appropriate’.  Whether or not it was appropriate, if it was to be relied on it was necessary, for reasons already explained, that it be given to the appellant.  In my view it was not.  The failure to do so was a jurisdictional error.

CONCLUSION

24                  The appeal will be upheld.  The order of the FMCA will be set aside and in lieu thereof it will be ordered that the decision of the RRT handed down on 23 August 2007 is set aside and the matter is remitted to the RRT to be determined in accordance with law.  The first respondent must pay the costs, if any, of the appellant before the FMCA and of this appeal.

Associate:

Dated:         15 September 2008