FEDERAL COURT OF AUSTRALIA

SZNYL v Minister for Immigration and Citizenship [2010] FCA 1282

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court on 6 May 2010 be set aside.

3.    In lieu of those orders, the following orders be made:

    (a)     a writ certiorari issue, directed to the second respondent, removing into the Court its decision, made on 8 September 2009, affirming the decision of a delegate of the first respondent not to grant a protection visa to the appellant, for the purpose of quashing that decision;

    (b)     the decision of the second respondent, made on 8 September 2009, affirming the decision of a delegate of the first respondent not to grant the appellant a protection visa, be quashed;

    (c)     a writ of mandamus issue, directed to the second respondent, requiring it to hear and determine the application of the appellant for review of the decision of a delegate of the first respondent refusing to grant him a protection visa.

4.    The first respondent pay the appellant’s costs of the appeal.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 6 May 2010. The Federal Magistrate dismissed an application for a review of a decision of the Refugee Review Tribunal given on 8 September 2009. The Tribunal affirmed the decision of a delegate of the first respondent to refuse the appellant a protection visa.

2    The issues central to the appeal involve the application of s 424A and s 424AA of the Migration Act 1958 (Cth) (the Act).

3    The appellant is a Kenyan, who follows the Christian faith, and is from the Kikuyu clan. He arrived in Australia on a short stay tourist visa to attend the World Youth Day. He claimed to fear persecution from the Mungiki, an anti-Christian organisation, for the reason that he refused to join the organisation.

4    The appellant relied, in part, on a letter from a priest, Father Daniel Kiriti, dated 9 December 2008. That letter included the following passage:

The Mungiki are very many youths Kenyan who are not Christian believers. They have killed many Christian youths who have refused to follow them [or join them]. The Kenya government is trying the best to arrest them but they are very secretive [underground movement] to kill by heading [or cutting in pieces of the victims] other youths who do not follow their movement.

5    And a later it continued:

[The appellant] is on their lists to be killed for not agreeing to join them. They are about 100 youth who have left the country, and especially the neighbouring countries, for being in wanted lists by the Mungiki members.

6    It was clear from the way the application unfolded before the Tribunal that the Tribunal saw a difficulty in accepting this information in view of other information which it had from the departmental file concerning the application for the short stay tourist visa used for the appellant’s attendance at the World Youth Day. Apparently a letter was written by a Father Cosmos in support of that application. In that letter, Father Cosmos indicated that he had interviewed the appellant, and had further indicated that he saw no reason why the appellant would not return to Kenya at the end of the duration of the short stay tourist visa.

7    Section 424A of the Act provides:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to 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

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(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 for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is nondisclosable information.

8    Section 424AA of the Act provides:

424AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear 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)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

9    The following passage appears in the transcript of the proceedings before the Tribunal. The explanation was intended by the Tribunal to constitute compliance with the obligation under s 424AA:

Member    I want to put something else to you now. Now I have on file in the Immigration Department file, okay, a report on the history of your World Youth Day visa application and a little record of the material that the Department considered in relation to your World Youth Day visa. Okay now the person who wrote your reference was Father Cosmos Matia and he personally interviewed you and other applicants for World Youth Day visas. Okay now when I asked you before in the hearing earlier who wrote, which priest or priests, which priests supported you, you did not name Father Cosmos, you named Father Daniel and Father John and when I asked you was it just those two priests who supported your application, you said yes. Now please wait I have to go through a protocol before I let you talk. I have to go through a protocol. So effectively you denied the existence of Father Cosmos in this process. Now meanwhile the Department has no record of the involvement of Father Daniel or Father John it would appear. So the Department’s record of the material that you used to support your application is different from your own recollection today. Now subject to a comment that you might make on this discrepancy, I might have reason to doubt any material that comes to me through somebody called Father Daniel Kiriti. Seemingly contrary to what you are saying, he had nothing to do with the process of assisting you in getting your World Youth Day visa. Okay and I may, subject to comments that you make, rely on the information that says that Father Cosmos supported your application and was very very confident that you would not be seeking to remain in Australia and was very confident that you didn’t have any reason to use the World Youth Day visa for any other opportunity. Now as I said, subject to comments that you might make, I may draw negative inferences from this discrepancy in information and if I draw such negative inferences they could form the reason or part of the reason for finding that you are not entitled to a protection visa. Now a few moments ago you seemed like you wanted to reply but I am required to offer you, to ask you whether you want to reply now or do you need more time to consider your response.

Applicant    I want to answer now.

Member    Okay. I’ll listen.

Applicant    I have been dealing with Father Daniel and Father John in Naivasha and then they are the ones who are dealing with the other Father but ask me what they think of these two because them the ones dealing with the Fathers in Nairobi because they were working in group like the ones in Naivasha then forwarding to the priests in Nairobi. There was youth from different places in Kenya and maybe this Father Cosmos was the one who was??? To put down the information in the paper.

Member    Did he interview you?

Applicant    No. This Chaplain called Father Mugai he is the one who was interviewing people on behalf of Father Cosmos. Maybe I’m not very sure but we were interviewed by a Chaplain called Mugai.

Member    Now as I mentioned before DIAC reports that Father Cosmos personally interviewed you and all of the applicants for the World Youth Day visas.

Applicant    It was when all the youth came from all the deltas in Kenya in one place and he talked to them, but personal interviews were done by the local priest then in Nairobi Chaplain Mugai who was under Cosmos. (Emphasis added)

10    The first respondent filed a Notice of Contention on 31 August 2010. It contended that the decision of the Federal Magistrate should be affirmed on the ground that there was no obligation on the Tribunal, under s 424A(1)(a), because there was no information to which that section applied.

11    There were two elements to the argument presented by the first respondent in the Notice of Contention. First, it was said that the matters to which the Tribunal referred in the passage extracted at [9] of these reasons were not relevant information because they did not constitute facts which involved a rejection, denial or undermining of the appellant’s claims to be a person to who Australia owed protection obligations: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17].

12    The possible relevant information identified by the first respondent, comprised the following:

a.    Father Cosmos wrote the appellant’s reference;

b.    He personally interviewed the appellant for World Yourth Day visas;

c.    When asked at the hearing who wrote reference for the appellant, the     appellant did not name Father Cosmos;

d.    Father Cosmos supported the appellant’s application for a World Youth Day     visa;

e.    He was very very confident that the appellant would not be seeking to remain     in Australia;

f.    He was very confident that the appellant did not have any reason to use the     World Yourth Day visa for any other opportunity.

13    None of these facts, it was submitted, involved a rejection, denial or undermining of the appellant’s claims.

14    This argument should not be accepted. The purpose of the advice from the Tribunal to the appellant in the relevant passage was that there was information which could be derived from the communication from Father Cosmos that would lead the Tribunal to the conclusion that the appellant had not experienced any threats from the Mungiki in Kenya. It is true that this conclusion would involve several inferential steps from the failure of Father Cosmos to indicate in his letter that there were such threats, and from his statement that there was no reason that the appellant would use the World Youth Day visa to remain in the Australia. That failure to indicate and that statement comprised information which was capable of undermining the claim of the appellant that he faced a real chance of persecution by the Mungiki if he returned to Kenya.

15    The second leg of this argument focuses on the terminology used by the Tribunal in its attempted compliance with the section. Towards the end of the extracted passage the Tribunal says that it ‘may’ rely on information provided by Father Cosmos. A little later, it says that it ‘may’ draw negative inferences from the discrepancy information and a few lines further it says that if it drew negative inferences from the discrepancy, they ‘could’ form the reason, or part of the reason, for finding that the appellant was not entitled to a protection visa.

16    Mr Smith, who appeared as counsel for the first respondent, drew attention to the requirement in s 424A(1)(a), that the relevant information must be considered by the Tribunal to be information which ‘would’ be the reason or part of the reason for affirming the decision under review. He contended that the deliberate choice by the Tribunal of the words ‘may’ and ‘could’ indicated that the circumstances for the operation of s 424A had not arisen. He also drew attention to the unsurprising view expressed by the High Court that ‘would’ means would and not could: SZLFX v Minister for Immigration and Citizenship [2009] HCA 31 at [25].

17    The language of the Tribunal is inaccurate, but it does not demonstrate that the circumstances did not fall within s 424A(1)(a). The Tribunal explained in its reasons at [67] that in the relevant passage it was intending to comply with s 424AA. It was therefore aware of the requirements of that section. Furthermore, as Ms Nolan, who appeared as counsel for the appellant, submitted, the Tribunal in fact makes a finding, at [136], which undermines the case of the appellant based on the very evidence of Father Cosmos to which it drew the appellant's attention.

18    Ms Nolan also referred to other extracts from the transcript which show the concern of the Tribunal about the evidence of Father Cosmos that he had interviewed the appellant and had come to the conclusion that the appellant would not use the World Youth Day as an opportunity to remain in Australia because he had no reason to do so. Consequently, the argument that the circumstances for the operation of s 424AA had not arisen should be rejected.

19    That leads to the need to consider whether the requirements of the section were complied with by the Tribunal. On this issue, the judgment of the Federal Magistrate is clear, careful and considered. However, the question is one of judgment and assessment, about which minds might differ.

20    Section 424AA requires the Court to determine on an appeal such as this, whether the level of communication between the Tribunal and the applicant reached a level sufficient to impart an understanding to the applicant. The Tribunal must ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review: s 424AA(b)(i).

21    Mr Smith contended that the particulars of the information were clearly stated and that consequently there was reduced need for an articulation of the relevance of the information to the review, and the consequences of the information being relied upon in affirming the decision under review: SZMTJ v Minister for Immigration and Citizenship (No. 2) [2009] FCA 486.

22    A fair reading of the relevant passage indicates that the Tribunal notified the appellant that the Tribunal had a concern about the appellant’s evidence which suggested that Father Cosmos had not interviewed him for the World Youth Day visa. In the first passage highlighted in the extract at [9] of these reasons, the Tribunal says:

So effectively you denied the existence of Father Cosmos in this process?

23    The Tribunal then outlines the consequence of it accepting the evidence of Father Cosmos, namely that it might doubt the material contained in the letter of Father Kiriti. The Tribunal then proceeds, in the second highlighted passage:

Okay and I may, subject to comments that you make, rely on the information that says that Father Cosmos supported your application and was very very confident that you would not be seeking to remain in Australia and was very confident that you didn’t have any reason to use the World Youth Day visa for any other opportunity.

The issue here relates to the substance of what Father Cosmos’ communication contained, namely that there was no basis disclosed to Father Cosmos of any of the appellant’s alleged troubles in Kenya. This is a completely different subject matter to the evidence concerning the process of interview which Father Cosmos referred to in his letter.

The Tribunal then concluded with general statements saying that it might draw negative inferences from the discrepancy in information, although it did not state what those negative inferences would be.

24    The appellant was offered time to provide further information or his answer, but elected to answer immediately. His response related entirely to the first subject raised by the member, namely the identity of those who interviewed him for the World Youth Day visa. The Tribunal member built on his answer by asking further questions limited to that subject. No further reference was made to the reason why the letter from Father Cosmos did not refer to any threats from the Mungiki as the later letter from Father Kiriti did.

25    The Tribunal tangled a number of different issues into the disclosure of information without separating the elements carefully enough to comply with s 424AA (b)(i). In particular, the Tribunal did not explain the consequences of reliance on the various separate pieces of information. Further, the Tribunal used the language of negative inference in such a generalised way that it failed to convey in a meaningful way the likely result of the use of the information.

26    It is instructive to notice the Tribunal’s own description of the process which it undertook in the extracted passage. It describes the process at [67] as follows:

The Tribunal put to the applicant that subject to comments he might make, the Tribunal might consider Fr Cosmos’s reference as evidence that the applicant was not facing relevant harm or threats of relevant harm at the time.

27    This describes one of the tangled strands in the Tribunal’s attempt to comply with s 424AA. It was not, however, the only strand, and it was not the one which the appellant picked up to answer or which the Tribunal pursued in the questioning which followed. This explanation by the Tribunal confirms that the way in which the Tribunal sought to comply with s 424AA(b)(i) did not ensure, as far as reasonably practicable, that the appellant understood why the information was relevant to the review, or the consequences of the information being relied upon in affirming the decision under review.

28    The requirements of s 424AA could only have been met if the Tribunal had, first, separated the various strands of information and, second, explained what, in relation to each of them, would be the consequence of the Tribunal relying on each. Had that been done then the appellant would have been alerted to the consequence that the Tribunal might accept Father Cosmos’ evidence to find that at the time when the letter was written the appellant did not face any threats in Kenya. In the end that was the finding made in [36] of the Tribunal’s reasons.

29    The failure of the Tribunal to comply with the requirements of s 424AA amounted to jurisdictional error. It follows that the appeal must be allowed.

Associate:

Dated:    22 November 2010