FEDERAL COURT OF AUSTRALIA

SZGEP v Minister for Immigration and Citizenship [2008] FCA 1798

SZGEP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1543 of 2008

RYAN J

24 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs, to be taxed in default of agreement.

Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from orders of Orchiston FM pronounced on 12 September 2008.  By those orders, the learned Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), which was handed down on 8 January 2008: SZGEP v Minister for Immigration & Anor [2008] FMCA 1289.  By its decision, the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant a protection (class XA) visa to the appellant. 

Background

2                     The appellant is a citizen of India of Hindu faith who arrived in Australia on 5 November 2004.  On 23 November 2004, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. On 13 December 2004, a delegate of the Minister refused the application for a protection visa and, on 6 January 2005, the appellant applied to the Tribunal for a review of that decision. 

3                     On 5 April 2005, the first Tribunal handed down its decision, affirming the decision of the delegate not to grant a protection visa.  On 10 October 2006, orders were made by consent in the Federal Magistrates Court setting aside the decision of the Tribunal and remitting the matter to the Tribunal to be heard and determined according to law.  I have been informed by Ms Baw of Counsel for the Minister that the consent order to which I have just referred was made on the basis that adverse information, which might have been the reason or part of the reason for the decision of the Tribunal, had not been put to the appellant before the Tribunal made its decision. 

4                     On 5 January 2007, the Tribunal, as secondly constituted, handed down its decision, again affirming the delegate’s decision.  On 5 September 2007, the Federal Magistrates Court again made orders, by consent, setting aside that decision and remitting the matter to the Tribunal, again to be heard and determined according to law.  I have also been informed by Ms Baw of Counsel that the reason for that second setting aside of the decision of the Tribunal was that, contrary to ss 425 and 425A of the Migration Act 1958 (Cth) (“the Act”), an invitation to attend the hearing of the Tribunal as secondly constituted had not been sent to the applicant’s new address.

The decision of the third Tribunal

5                     At a hearing before the third Tribunal, held on 15 November 2007, the appellant gave evidence that, in 2002, political riots had broken out in the state of Gujarat, resulting in the deaths of thousands of Hindus and Muslims.  The appellant claimed that, at the time, he was an active member of the Bharatiya Janata Party (“the BJP”), and was involved in the relief camps that were set up for victims of the riots.  These activities, it was said, had come to the attention of Muslim political parties, including the Congress-I Party.  In June 2006, the Congress-I Party came to power and began harassing BJP supporters.  The appellant claimed that supporters of the Congress-I Party had attacked and threatened to kill him, after which he decided to leave the country.  He mentioned that moving to another part of India would only have made him a bigger target for the Congress-I Party and that the police would not have come to his assistance as they favour the government. 

6                     The Tribunal, as thirdly constituted, did not accept that the appellant’s evidence was credible or reliable.  The Tribunal listened to the tapes of the first Tribunal hearing and found that the appellant’s evidence, both at the first hearing and the current hearing, was vague, unconvincing and so lacking in detail that it could not be considered credible.  Furthermore, the Tribunal did not accept that the appellant had been an active member of the BJP as his evidence in that regard was non-specific and vague, and he had failed to demonstrate the level of knowledge of political affairs in Gujarat that was to be expected of an active BJP member.  The Tribunal subsequently rejected the appellant’s claims in their entirety due to the vagueness of, and lack of detail in, his evidence.  It ultimately held that the appellant was not a refugee within Article 1A(2) of the 1951 Convention Relating to the Status of Refugees because he did not have a well-founded fear of persecution as required by the Act. 

The decision of the Federal Magistrates Court

7                     On 4 February 2008, the appellant applied to the Federal Magistrates Court for review of the third Tribunal’s decision.  He filed an amended application on 10 June 2008, and a further amended application on 12 August 2008, in which he advanced two grounds of appeal.  However, at the hearing, only the first ground of the further amended application, based on s 424A of the Act, was pressed. 

8                     At the time of the hearing, s 424A provided, so far as is relevant;

‘(1)      Subject to subsection (3), the Tribunal must:

(a)   give to the appellant, 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 appellant understands why it is relevant to the review; and

(c)   invite the appellant to comment on it.

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

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

(b)   if the appellant 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 appellant or another person and is just about a class of persons of which the appellant or other person is a member; or

(b)   that the appellant gave for the purpose of the application; or

(c)   that is non-disclosable information.’

9                     The first ground in the notice of appeal reads as follows;

‘The Tribunal breached the provisions of section 424A(1) of the Migration Act 1958 (Cth), in failing to disclose to the applicant material that it considered adverse to the applicant.

1)         The Tribunal failed to comply with its obligations under s. 424A of the Act.  Section 424A obliged the Tribunal to provide the applicant with particulars of any information that it considered would be the reason or part of the reason for affirming the decision under review in order to ensure that the applicant has an opportunity to comment upon these matters.

2)         The Tribunal (third Tribunal) proceeded to decide the matter on all the available information including “listening to the tapes of the first Tribunal hearing (differently constituted), and decided that in both the first and second hearings, the applicant’s evidence was vague and unconvincing” (CB p 129.3).  This means the third decision was essentially based on the same information as the first decision and second decision. Accordingly, it is submitted that the jurisdictional defect inherent in the first decision has carried over into the third decision.  It is further submitted that the Tribunal was obliged to provide the applicant this adverse information. 

3)         It is further submitted that the judgment of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 is relevant to this appeal. 

            The effect of SAAP was that any Tribunal decision based on “information” adverse to the applicant, where such information did not fall within any of the exceptions contained within s. 424A(3), was likely to be set aside irrespective of whether there has been any actual unfairness to the applicant. 

            The Tribunal used the information from the first and second hearing to form conclusions that discredited the applicant.  The Tribunal declared that “the applicant’s evidence was so lacking in detail that it was not credible...” (CB p 129.3). 

            This was crucial in that the Tribunal was obliged under s. 424A to put to the applicant all relevant information that the Tribunal was relying on to form its adverse decision.  If the applicant’s evidence was “so lacking in detail that it was not credible”, the Tribunal was obliged to put this information to the applicant. 

            SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100 at [34] noted per Cowdroy J. that “the reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place.”

4)         The Tribunal in its decision record provided 7 ½ pages of Independent Country Information (CB p 117-124).  The Tribunal relied on this country information to reach its decision. 

            The country information was used to reach an adverse conclusion on the credibility of the applicant’s claims.  There is no evidence that the information was disclosed to the applicant prior to the Tribunal’s decision.  The applicant was never served the contents of the 7 ½ pages of the country information for comments. 

5)         During the course of the Tribunal’s hearing held on 15 November 2007, all that the Tribunal did was to make brief references to the country information without stating the relevance of this information to the applicant.  At no stage during the hearing (as evidenced by the transcript) did the Tribunal indicate that it was going to rely on this information to form its decision.  It follows that at no stage was there ever a mention of the purpose of the country information.

6)         Section 424A(3)(a) is not an exception that the Tribunal can rely upon in order not to conform to section 424A(1). 

7)         It is submitted that the decision of the Tribunal is infected by jurisdictional error in that it breached its procedural fairness obligations under the general law and breached section 424A(1) of the Migration Act in failing to disclose to the applicant clear particulars of information that was the reason or part of the reason for affirming the decision that was under review.

10                  The appellant raised three matters to support this ground of appeal.  First, he contended that there was no basis on which the Tribunal could have reached its decision without putting the appellant on notice that his responses to its questions in relation to the riots were vague, ambivalent and not commensurate with the level of detail and explanation that would be expected of a person who had participated in the riots. 

11                  Secondly, the appellant contended that the Tribunal had failed to inform him that certain information would be the reason, or part of the reason, for affirming the decision under review and had failed to ensure that, as far as reasonably practicable, the appellant understood why the information on the subject of how he was in a position to help and influence other farmers was relevant to the review, and the consequences of it being relied on by the Tribunal in affirming the decision under review. 

12                  Thirdly, it was contended that the Tribunal had regarded the appellant’s inability to recall certain events as a significant factor which undermined his credibility without taking into account that he had suffered memory loss, and that the Tribunal should have conducted the hearing in a “natural flow”, rather than putting specific questions to the appellant. 

13                  With respect to the claim that the Tribunal had incorrectly taken into account the material which had been before the first and second Tribunal hearings, the appellant relied on the decision of Cowdroy J in SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100 at [34], where his Honour observed that “the reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place.” 

14                  By contrast, Counsel for the Minister referred to the decision in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107, in which a Full Court of this Court held that;

‘An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taking in arriving at that invalid decision are themselves invalid.  The Tribunal still has before it materials that were obtained when the decision that had been set aside was made.’

15                  The learned Federal Magistrate accepted the submissions of the Minister, and found that the Tribunal was entitled to have regard to the material provided to the first and second Tribunals.  In other words, the invalidity of the first decision did not invalidate such material as had been presented at the earlier hearing of the Tribunal.  Nor, in these circumstances, was there any obligation on the Tribunal to provide this adverse “information” from the first and second hearings to the appellant to give him the opportunity to comment on or respond to the information: see SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 per Emmett J at [16]-[17]; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; and SZEPZ (supra)). 

16                  In relation to the use of independent country information, her Honour noted that it is well-settled that the choice, assessment and weight of relevant country information is a purely factual matter for the Tribunal: see NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1, at [8] per Gleeson CJ; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.  Further, it is also established that “country information” falls within the statutory exemption in s 424A(3)(a), being 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”: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, at [66]-[71] per Beaumont J and at [138] per Merkel and Hely JJ;  WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330, at [44]‑[46];  QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92, at [7]-[30]; and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178, at [11]-[16].

17                  With respect to the third matter, the learned Federal Magistrate noted at [42] that at no stage had the appellant himself stated or claimed at the Tribunal hearing that he was suffering from a loss of memory, or that his memory loss may have affected his recall.  Her Honour further noted that it was not for the Tribunal to “second guess” any other explanation over and above that proffered by the appellant, and that there was no duty on the Tribunal to prompt or stimulate an expansion of the applicant’s answers or claims.  Further, Orchiston FM held, it was well-settled in this regard that, although the concept of onus of proof was not applicable to administrative inquiries and decision-making: Yao-Jing Li v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 74 FCR 275, at 288, the Tribunal is not required to make the applicant’s case for him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, at [40];  WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225, at [73].  In addition, her Honour observed, the Tribunal was not required to accept, uncritically, any and all allegations made by an applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437, at 451. 

18                  Her Honour found that the “information” referred to by the appellant in the three examples was constituted merely by the Tribunal’s thought processes and subjective appraisals of the appellant’s evidence, including its adverse findings of credibility, which could not be regarded as information for the purposes of s 424A of the Act: SZBYR (supra). 

19                  Accordingly, her Honour found that the Tribunal had complied with all of its obligations under s 424A of the Act, and dismissed the appeal. 

The appellant’s submissions

20                  On 29 September 2008, the appellant filed in this Court a notice of appeal in which he claimed that;

‘The Federal Magistrates Court was in error in not finding that the Tribunal had breached its powers under s 424A of the Migration Act 1958.’

21                     The notice of appeal and the appellant’s written submissions set out the same particulars which had been outlined in the further amended application before the Federal Magistrates Court. 

22                  The appellant submitted that, at the third hearing before the Tribunal, he had been asked a series of questions in relation to the evidence which he had given before the first and second Tribunals, and had been asked to comment on material from the first and second Tribunal hearings (including hearing tapes, country information and decision records), now held by the third Tribunal.  According to the appellant, that line of questioning on such information gave rise to an obligation on the part of the Tribunal to put the appellant on notice in writing that it intended to use such information as the reason, or part of the reason, for affirming a decision under review.  Further, it was submitted, the Tribunal was obliged to ensure, as far as reasonably practicable, that the appellant understood why that information was relevant to the review.  The appellant contended that, by failing to do so, the Tribunal had contravened s 424A(1)(a) and (b) of the Act. 

23                  The appellant submitted the word “information” in s 424A(1) had the same meaning as that contained in s 424, namely, “knowledge of relevant facts or circumstances communicated to or received by the Tribunal…irrespective of whether it is reliable or has a sound factual basis” and “[did] not encompass the Tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, at 24.  

24                  The appellant asserted that the Tribunal had “treat[ed] its questions as though it provides implicit support for a positive assertion that is detrimental to [the] applicant’s case.”   The appellant, after noting that s 424A was “astatutory enactment of the basic rules of natural justice”: see SRFB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 252 at [52]; and VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [46], submitted that;

‘It would seem to be contrary to the requirements of procedural fairness if the Tribunal were not required to invite the applicant to comment on such information (that is found to be adverse to the applicant) simply because the Tribunal has already invited the applicant to appear before it or has alluded to it in some other manner.’

25                  The Tribunal had refused to accept the appellant’s evidence in relation to his involvement in the relief camps because, when asked to describe his role, the appellant had responded that it had happened a long time ago and he was unable to remember.  The appellant alleged that;

‘…prima facie, the source of the Tribunal’s information as to the role he played at the relief camps was not information given by the applicant to the Tribunal for the purposes of his review application but was “prior” information found on the department’s file – this was relevantly the only source of that information when it was used by the Tribunal to put the question of relief camps to the appellant.’

26                  The appellant submitted that s 424A(1)(a) and (b) applied not only to circumstances where the information imports some positive factual finding but also where there was inconsistency between the information and an applicant’s evidence, and the information formed part of the Tribunal’s reasons for its decision.  According to the appellant, the Tribunal should have ensured that:

‘a)       the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review; and

b)         when the applicant said that it was a long time ago and he could not remember, the Tribunal ought to have advise [sic] the applicant that he…may seek additional time to comment on or respond to the information.  This was the least the Tribunal could have done to accord the appellant procedural fairness.’

27                  The appellant claimed that failure by Orchiston FM to recognise that the Tribunal had contravened s 424A constituted jurisdictional error.  The appellant, therefore, sought orders in the following terms;

‘1)       A writ of certiorari to quash the decision of the Refugee Review Tribunal made on 13 December 2007 and handed down on 8 January 2008, which refused the appellant’s application for a protection visa affirmed by Orchiston FM.

2)         A writ of prohibition directed to the First Respondent preventing him or his agents or delegates from acting upon or giving effect to or enforcing the Tribunal’s decision. 

3)         A write of mandamus directing the Refugee Review Tribunal to hear and determine the appellant’s review applications in accordance with law.

4)         An order that the Respondents pay costs.

5)         Such order as the court deems fit.’

The Minister’s submissions

28                  Counsel for the Minister first sought to refute the appellant’s contention that the Tribunal was not entitled to rely on information from the first and second hearings to form conclusions that discredited the appellant without putting that information to the appellant: see SZEP at [39].  It was submitted that the Tribunal, in having regard to the material from the first and second hearings, was under no obligation to put the appellant on notice of its reasoning or state of mind and give him the opportunity to comment on or respond to it: see SZBYR at [18] and [21].  Furthermore, the Tribunal had refused to accept the appellant’s claim that he had been persecuted as an active member of the BJP because of doubts as to the reliability of, and lack of detail in, his evidence.  The Minister argued that such doubts or absence of evidence did not constituted “information” within s 424A of the Act. 

29                  Secondly, the Minister addressed the appellant’s contention that the Tribunal had exceeded its jurisdiction when it drew the inference that the appellant’s evidence was “so lacking detail that it was not credible” without specifically putting that to the appellant.  The Minister reiterated the argument advanced to the Court below that the lack of detail in the appellant’s evidence did not amount to “information” within the meaning of s 424A, citing SZBYR at [11] and [13]-[14]. 

30                  In relation to the appellant’s third ground of appeal, that the Tribunal had been obliged to disclose that it would rely on country information to form its decision, the Minister submitted that under s 424A(3)(a) of the Act, the Tribunal is not required to give written particulars to the appellant about information that does not relate to the appellant or a specific individual and is just about a class of persons of which the appellant or other person is a member.  It was argued that the country information cited in the Tribunal’s decision did not specifically pertain to the appellant or another person and that, accordingly, there was no obligation upon the Tribunal to put that country information to the appellant. 

31                  Therefore, Counsel for the Minister submitted, no jurisdictional error could be found in the Tribunal’s decision and, accordingly, the appeal should be dismissed with costs. 

Disposition of the appeal

32                  I do not consider that the Tribunal, as thirdly constituted, was obliged to put to the appellant the fact that it entertained doubts about his credibility because of what had occurred at previous hearings of the Tribunal.  Those occurrences, in my view, did not constitute “information” within the meaning of s 424A(1) of the Act.  Rather, they were part of the thought processes or the reasons which led the Tribunal not to accept information which had been put before it by the appellant himself.  In this respect, I adopt with respect what was said by the High Court in SZBYR at [18] and [21]. 

33                  It correspondingly follows that the Tribunal was not under an obligation to put to the appellant its tentative view, assuming that it had formed it at the time of the third hearing, that his evidence was “so lacking in detail that it was not credible”.  That was, in my opinion, a conclusion formed by the Tribunal as part of its eventual task of weighing the evidence for and against the ultimate finding of fact which it was required to make, which was whether the appellant had a well-founded fear of persecution for a Convention reason.  

34                  It follows that the formation of a view about the appellant’s credibility did not constitute “information” within the meaning of s 424A(1).  In my opinion, which is reinforced by a very great preponderance of authority in this Court, country information of the kind set out at the pages of the Court Book to which the appellant referred was information that did not relate to the appellant or a specific individual.  Rather, it was information just about a class of persons of which the appellant was, or other persons were, members.  That country information, therefore, came within the exception erected by s 424A(3)(a) of the Act.  Also I can discern no error in the learned Federal Magistrate’s treatment of the appellant’s reliance on his loss of memory. 

35                  Finally, as was pointed out in the course of discussion this morning, a ground has been raised by the appellant in his written submissions invoking s 424AA of the Act which, as Ms Baw indicated, was a ground raised before the learned Federal Magistrate.  It was then conceded by the solicitor who appeared on behalf of the appellant that it had no application because the appellant’s application to the Tribunal for review had pre-dated the coming into force of the amending Act which inserted s 424AA into the Act.

36                  For these reasons, it follows that none of the grounds of appeal from the orders of the learned Federal Magistrate has been made out and the appeal must be dismissed with costs. 

Associate:

Dated:         27^th November 2008.