FEDERAL COURT OF AUSTRALIA

SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372

 MIGRATION – application for review of decision to refuse protection visas – whether denial of procedural fairness in disregarding evidence

MIGRATION – failure of Tribunal to afford right to comment under ss 424AA and 424A Migration Act 1958 (Cth) – failure of Tribunal to deliver correspondence to appellant

Held: appeal on the basis of denial of procedural fairness allowed

Migration Act 1958 (Cth), ss 424AA, 424A

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

SZMUK, SZMUL and SZMUM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 339 of 2009

PERRAM J

25 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed with costs.

2.                  Costs be fixed in the sum of $4,675.00

3.                  Set aside the orders of the Federal Magistrate’s Court made on 6 April 2009 and in lieu thereof order:

1.                  Order absolute in the first instance for a writ of certiorari to quash the decision made by the second respondent on 2 September 2008 in matter number 0803919

2.                  Order absolute in the first instance for a writ of mandamus to compel the second respondent to determine the applicants’ applications in case number 0803919

3.                  The first respondent is to pay the applicants’ costs, fixed in the sum of $5,000.00.

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 a decision of the Federal Magistrates Court given on 6 April 2009.   The appellants are a husband and wife and their child.  The adult appellants were born in Sierra Leone and arrived in Australia in February 2008.  Shortly afterwards they applied to the Minister for Immigration and Citizenship for protection visas, which is the visa which may be granted to a person if the Minister is satisfied that he or she is owed protection obligations by Australia under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done in New York on 31 January 1967.

2                     Their application for that visa was dealt with by a delegate of the Minister who, on 16 June 2008, determined to refuse it.  The appellants, as was their right, then sought a review of that decision before the Refugee Review Tribunal (“the Tribunal”).

3                     The Tribunal reviewed the delegate’s decision on 2 September 2008 and concluded that it should be affirmed.  Undeterred, the appellants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  A number of grounds were advanced in that Court, however, only two remain relevant to the issues which arise in this Court. 

4                     The appellants had argued that they had a well founded fear of persecution in Sierra Leone because of their support for a political party known as the Sierra Leone Peoples Party (“the SLPP”), as well as their support for the former president of Sierra Leone, a Mr Kabbah.  The appellants left Sierra Leone in 1999 during a brutal civil war which, as the delegate found, lasted from 1991 to 2002, killed 20,000 people, left thousand of others maimed and ultimately resulted in the displacement of half the population.  

5                     Of course, that was sometime ago and the critical issue was, in substance, what would occur if the appellants were to return to Sierra Leone in 2008.  No doubt to that end, the solicitor acting for the appellants sent a detailed written submission to the Tribunal on 1 August 2008.   It touched upon a number of topics.  Relevantly, for present purposes, it contained quotations from an article entitled “Sierra Leone: Political Violence Rife in Kono” which was published on the allafrica.com website on 2 July 2008.  That article documented persecution and harassment of SLPP members by operatives of another political party known as the APC.  Included in the allegations in the article were accounts of violent assault, property damage and mob violence against various SLPP members.  That article was dated 2 July 2008 and hence was issued a few weeks before the submission on behalf of the appellants was lodged with the Tribunal on 1 August 2008.   The Tribunal conducted a hearing on 6 August 2008.  During the course of that hearing the member constituting the Tribunal said:

Now it is difficult to accept on the basis of the evidence available to me that there is a real chance that you will be persecuted because of any perception that you are a supporter of the former President Mr Kabbah or the Sierra Leone People’s Party if you return to Sierra Leone now. 

6                     The Tribunal subsequently followed up this concern by a letter dated 12 August 2008.  In that letter the Tribunal indicated that it accepted there had been violence at the time of the presidential elections in 2007, however, it made no reference to the material in the letter of 1 August 2008 which suggested violence against SLPP members in July 2008.  Instead, the relevant parts of the Tribunal’s letter were as follows:

As referred to in the decision under review, the civil war in Sierra Leone ended in 2002.  The Tribunal accepts that problems remain in Sierra Leone, as referred to in your representatives’ submission to the Tribunal dated 1 August 2008, in particular severe youth unemployment and a lack of basic services.  However, as discussed at the hearing on 6 August 2008, what the Tribunal has to look at is whether there is a real chance that you or your wife or your son will be persecuted for one or more of the five Convention reasons if you return to Sierra Leone now or in the reasonably foreseeable future.  So far as your and your wife’s claims based on your real or imputed political opinion in favour of the SLPP and the former president, Tejan Kabbah, are concerned, as discussed at the  hearing on 6 August 2008 the Tribunal accepts there was violence at the time of the parliamentary and presidential elections in Sierra Leone in 2007.  However the information available to the Tribunal suggests that the polls themselves were generally free and fair and that the police and the army acted professionally to put a stop to violence generated by all sides (Human Rights Watch, World Report 2008 (relating to events of 2007) in relation to Sierra Leone, copy attached).  As the Tribunal put to you and your wife, this information is relevant to the review because it makes it difficult for the Tribunal to accept that there is a real chance that you or your wife or your son will be persecuted for reasons of your real or imputed political opinion in favour of the SLPP and the former president, Tejan Kabbah, if you return to Sierra Leone now or in the reasonably foreseeable future. 

7                     This letter tends to suggest that the article of 2 July 2008, which expressly referred to violence against SLPP members only a few weeks before the Tribunal’s hearing, had escaped its attention.  In any event, the Tribunal afforded the appellants the opportunity to make further submissions by 26 August 2008 which the appellants took up.  On 25 August 2008, the appellants put on a further affidavit.  That affidavit made reference to matters suggesting oppression in Sierra Leone but did not point out that the Tribunal appeared to have overlooked the article of 2 July 2008.  `

8                     Pausing there, it might neutrally be said that the Tribunal had not appreciated that the article of 2 July 2008 suggested violence in 2008 – this much was clear from its letter of 12 August 2008 – and that the appellants (or their solicitors) had, in turn, overlooked the Tribunal’s own inadvertence.  Such a state of affairs was bound to lead to confusion.  In its decision the Tribunal reasoned as follows, at [80] – [81]:

While the applicant says that he knows the mentality of the people in Sierra Leone and that one cannot stop violence happening in Africa, there is nothing in the information available to me with regard to what is happening in Sierra Leone which would suggest that supporters of the SLPP or the former president, Tejan Kabbah, or people who may be perceived to be such supporters, are being singled out to be attacked, prosecuted or killed by the present government, the present ruling party, the APC, or its supporters.

In their submission dated 1 August 2008 the applicants’ representative referred to claims made by the SLPP in relation to violence against SLPP supporters around the time of the parliamentary and presidential elections in August and September 2007 and ahead of forthcoming local council elections in June 2008.  I consider that, if supporters of the SLPP or the former president had been being attacked, prosecuted or killed by the present government, the present ruling party, the APC, or its supporters following the change of government in 2007, the SLPP would have drawn attention to this.

(emphasis added)

9                     Before the Federal Magistrate the appellant’s contended that in so reasoning the Tribunal failed to discharge its function of conducting a review.  An allied submission was that the Tribunal had denied the appellants procedural fairness by failing to indicate to them that it was going to disregard the evidence of the article of 2 July 2008. 

10                  The Federal Magistrate was persuaded that the core issue was whether there was violence during the 2007 elections.  His Honour then reasoned the case was one where the Tribunal had failed “to point out to them all of the weaknesses in their case” which did not, without more, involve a breach of the rules of procedural fairness.

11                  In my opinion, the learned Magistrate has erred in his approach to the Tribunal’s review.  The issue was not whether there was violence during the 2007 elections.  The issue was whether the appellants faced persecution in 2008 if they were to return to Sierra Leone.  The Tribunal’s process of reasoning in that regard was, in my opinion, wholly unsatisfactory.  I have emphasised various portions of the quotation set out above from its reasons.  Those highlighted portions contain the following propositions:

(a)        There was no evidence which suggested that supporters of the SLPP or the former President were being singled out to be attacked by the APC or its supporters;

(b)       the appellants’ submission of 1 August 2008 referred to claims made by the SLPP about violence against SLPP members ahead of elections in June 2008;

(c)        the Tribunal rejected that submission because if it were true it would have been made by the SLPP itself.

12                  Proposition (a) is wrong.  There was before the Tribunal the article of 2 July 2008 to which reference has already been made which precisely contained the allegation that, as at July 2008, members of the SLPP were being attacked by members of the APC.  The Tribunal in fact rejected that evidence on the basis that the claims were not made by the SLPP itself (ie. Proposition (c)).  It is difficult to reconcile that statement with Proposition (b) (which referred to claims by the SLPP) but it is not necessary to decide the matter on that basis.  In effect, the Tribunal has rejected as untrue the account contained in the article because of the absence of a corroborating claim made by the SLPP to the same effect. 

13                  The appellants were not afforded the opportunity to make any submission about this reasoning, such as it is.  They were not told that the article of 2 July 2008 was to be treated as being untrue.  They were not informed that their case was to fail because they had not provided proof from the SLPP itself that its members were being attacked in July 2008.

14                  This was not some peripheral issue; it was the central question debated before the Tribunal.  It is true, as the Minister submitted, that the Tribunal had given the appellants an opportunity to establish that they might be subject to violence if they returned to Sierra Leone.  That opportunity was given both at the hearing on 6 August 2008 and subsequently again by means of the letter sent to the appellants on 12 August 2008.  On both occasions the Tribunal signalled that it did not think that the appellants had established that they faced risk if they returned.  What the Tribunal did not say was that it was proposing to reject the only evidence on the topic of violence in June/July 2008 on the basis of the Tribunal’s own surmise that that evidence must be wrong because if it were to be right then the SLPP would itself have complained.

15                  The critical step in that reasoning is the conclusion that the SLPP had not complained about violence in June 2008, a matter which the Tribunal inferred from the absence of any evidence to that effect.  It follows that the Tribunal regarded the absence of evidence about the SLPP’s complaints as to violence against its members in June/July 2008 as a critical issue.  In fact, as its reasoning shows, it was the determinative matter in the Tribunal’s consideration.  It is true that the Tribunal was not obliged to point out the weaknesses in an appellants’ case to them.  I would not, however, regard that principle as being in any way apposite to the present appeal.  Here what the Tribunal did was to reject uncontradicted third party material on the basis of an assumption – itself unproven before the Tribunal – that there had been no complaint by the SLPP.  That the Tribunal committed the fallacy of confusing the absence of evidence with that evidence of absence is, in the present context, besides the point although it can hardly be calculated to increase one’s sense of confidence in the correctness of the outcome. 

16                  Rather, the important matter is that the absence of evidence upon which the Tribunal acted was a direct result of the Tribunal not indicating to the appellants that it would not accept the article of 2 July 2008 unless corroborated by the SLPP.  The appellants not being warned in that way took no steps to prove that the SLPP had also raised the matter.  To conclude in those circumstances that the article’s veracity was to be rejected because it had not been corroborated by the SLPP resulted in a hearing which was unfair, in my opinion, seriously so.

17                  The categories of procedural fairness are neither closed nor susceptible of exhaustive definition.  One category which is however established is that which obtains when a decision maker decides the case by reference to an issue which the party before it could not be reasonably expected to have anticipated.  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 is one such case.  There, the Tribunal unaccountably rejected two aspects of an applicant’s case which had been accepted by the delegate and which had not been questioned by the Tribunal during its hearing.  That was held to be procedurally unfair.  I do not think that a different principle can apply here.  It follows that there was a denial of procedural fairness.  The appeal must be allowed with costs.

Second ground:   the Tribunal’s letter of 12 August 2008

18                  The appellant wife submitted that:

(a)        the Tribunal was bound either by s 424A or s 424AA of the Migration Act 1958 (Cth) to give to her an opportunity to comment on various matters which it had not done; and/or

(b)       to the extent that it did do so, the Tribunal had sent a letter of 12 August 2008 to her husband with an instruction to him to pass on its contents to her.   Sending the letter to him was said to be legally ineffective.

19                  The second argument in (b) must fail on the facts.  The letter of 12 August 2008 was not only sent to the appellant husband but also to the appellant wife’s solicitor who was her authorised representative.  By doing so, the letter was taken to have been given to her. 

20                  As to the first argument in (a), the appellant wife submitted that the Tribunal had failed to give her a chance to provide comments on the passage of  legislation in Sierra Leone in 2007 which was said to strengthen the position of women in that country.  This mattered because it was used by the Tribunal as a reason for discounting the appellant wife’s claim based on persecution of her as a woman of a particular ethnic background.

21                  Any obligation to provide that information to her can only have emerged from the operation of s 424A(1).  However, the information in question was not specifically about the appellant wife but was instead just about a class of persons of which the second appellant was but a member.  Accordingly, it could not be information of the kind at which s 424A(1) is directed:  see s 424A(3).  

22                  The appellant’s reliance upon s 424AA is, I think, misconceived.  The provision creates no imperative duties; rather, it is an enabling provision which permits the Tribunal, if it wishes, to give particulars at an oral hearing.  It has no application to the letter of 12 August 2008. This ground of appeal should be rejected.

Conclusion

23                  The appeal must be allowed with costs.

Associate:

Dated:         25 November 2009