FEDERAL COURT OF AUSTRALIA

SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent's costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This an appeal against a decision of the Federal Circuit Court that dismissed the appellants’ application for judicial review from the decision of the Refugee Review Tribunal given on 11 January 2013 to affirm the Minister’s delegate’s decision of 16 March 2012 not to grant the appellants protection visas: SZSOG v Minister for Immigration [2014] FCCA 769.

The issue on appeal

2    What happened at the hearing before the Tribunal and the use it made of three items of evidence given orally and in writing to it by the husband and wife led to the present question as to whether the Tribunal committed a jurisdictional error by failing to comply with either of ss 424A or 424AA of the Migration Act 1958 (Cth) in relation to its use of that evidence. The appellants contended that the three items of evidence amounted to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” for the purposes of ss 424A and 424AA. It is not in dispute that, if any of those items of evidence amounted to information within the meaning of those sections, the Tribunal did not comply with its obligation to give the particulars required to either the husband or the wife, as the case may be.

The legislative provisions

3    The relevant provisions of ss 424AA and 424A are as follows:

“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.

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.

…

(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;” (emphasis added)

Background

4    The appellants are husband and wife and their children. They are citizens of Pakistan who resided in Karachi. The wife applied for a protection visa on 24 November 2010 and included her husband and the children as members of her family whose entitlement to protection was dependent upon hers. The wife’s claims relevantly, for the purposes of the appeal, were as follows in [5]-[10]. She and her husband married in 2003 for love despite their different backgrounds, she being an Urdu-speaking Mohajir (that is a descendant of refugees from India at the time of partition) and he a Pashto-speaking Pathan from a village in what was formerly called the North West Frontier Province of Pakistan.

5    The wife’s mother had been an active member of the Muttahida Qaumi Movement known as the MQM, a Karachi-based political party and, as a result, the wife had also become known as a supporter of the MQM. The husband became a member of the anti-Taliban Awami National Party, known as the ANP, in 2007 and he had expressed views publicly against the Taliban. In 2007, when at work at her office in a Karachi university where she had been employed at that time for about seven years, the wife received a telephone call from a man who said:

“We know where are you, there is no space in Islam for women doing job and going outside without hijab, you are not belongs to our culture, roots, background and language we will not leave you. [sic]”

6    The wife said that she had not told anyone about that telephone call at the time, including her husband. She claimed that, in 2007, some people had tortured her husband when he had been in his village. The wife said that they had beaten him up and “chopped his toe”. In 2008, about a year later, the wife said that she had received the same call again, although this time the voice had changed and the man said: “We are monitoring you and your family are not safe we can find out you very easily. You are not safe anywhere. We will kill you and your family soon [sic].” She said that, at that time, she told her husband about the call and they moved to a different address in another place within Karachi.

7    During the hearing in the Tribunal, the wife and her husband both told the Tribunal about an incident in 2008. They said that the husband had been driving his car in Karachi when four people had approached him on two motorbikes, pulled him out of the car and attacked him. The wife said that the husband had suffered a knife wound in his hand that required three stitches. She claimed that the attackers belonged to the MQM. He gave evidence at the Tribunal that the attackers could have been from the MQM or the Taliban.

8    The wife came to Australia in July 2009 to further her education with her husband and son. They returned to Karachi on 18 August 2010 to visit her parents. She said that, on 21 September 2010, someone called on her mobile phone but her husband had answered, and heard a man making threats against her and her family. She said the caller had said that: “After coming back from Australia you have become more modern and you are going away from Islam.” She claimed that the caller knew their home address and said that they were following them, and they could kill their whole family. The wife said she did not know how those people had been able to find their address and telephone numbers.

9    After that telephone call, the wife said that she had received a threatening letter from a commander of the Tahreek-e-Taliban Pakistan, apparently on its letterhead, addressed to her, that said:

“You damaged the Islam by living in Western country. You are spreading that frivolous culture here. First you spoiled the society in Karachi and now you went to Australia to become more modern. We already told you not to do this, but you people not stopped your activities. We have the punishment of murder for this immodesty. You could not hide yourself by our eyes. We will find you in any part of the country. We will not allow you to spoil our religion of Islam, and you will be killed with your family.”

The proceedings in the Tribunal

10    At the hearing before the Tribunal, both the husband and the wife gave evidence. The appellants contended that three items in evidence that I will describe below had, in effect, mirror consequences for each of their claims albeit that, in the wife’s case, they could have been put to her orally during the hearing, pursuant to s 424AA, but in the husband’s case it was contended that they should have been put to him in writing under s 424A, although nothing turns on this.

11    I will briefly identify the three items of evidence and then set out how their significance emerged in the Tribunal’s decision record. First, the husband said that the couple had been receiving threatening letters and phone calls from the Taliban “all the time”. Whereas, in contrast, the wife had said in her written claims, and continued to say in her oral evidence, that she had received four particular threats, being three phone calls, one in each of 2007, 2008 and 2010, and the 2010 letter from the Taliban. Secondly, the wife had said that the attackers who injured her husband’s finger in 2008 came from the MQM, whereas the husband had been more equivocal, saying that they could have been from either the MQM or the Taliban. Thirdly, the wife’s detailed written claims for the protection visa, that were part of her original application, did not assert that any of the threats that she had received had been made against her husband and she did not refer to any connection between any of those threats and his political activities. In contrast, the husband gave evidence that the threats came after he began speaking out publicly against the Taliban.

12    The Tribunal discussed these items of evidence in the following passages:

“105.    The applicant’s husband said at the hearing before me that they had been receiving threatening letters and telephone calls all the time from the Taliban and that he had had problems with the Taliban because he had joined the ANP in 2007 and he had been speaking openly against the Taliban on the roads and in other places. However, as I put to him, the applicant herself in her original application did not suggest that they had been receiving threatening letters and telephone calls all the time from the Taliban. She said that she had received one telephone call in 2007 and one telephone call in 2008. She said that after they had returned to Pakistan in 2010 they had received one further telephone call and that they had also received one threatening letter. Moreover by the applicant’s account the threatening telephone calls made no mention of her husband’s political activity nor does the threatening letter which she produced mention her husband’s political activity.

…..

107.    The applicant said that the four people who had attacked her husband had belonged to the MQM but her husband was more equivocal, saying that they could have been from the MQM or the Taliban.”

13    The Tribunal also said:

“112.    As I put to them, if, as the applicant and her husband both said, everything in the applicant’s statement accompanying their original application is true, then the threats they claim to have been receiving made no mention of the applicant’s husband’s political activities at all. I consider that the applicant and her husband have sought to change the nature of their claims significantly in the course of the processing of their application by shifting the focus to the applicant’s husband’s political involvement. Having regard to the shift in their evidence I do not accept that they are credible witnesses. While I accept parts of the evidence given by the applicant and her husband I consider that they have changed some incidents and invented other incidents in an attempt to provide a basis for their application.

…

115.    For the reasons given below, I do not accept that before the applicant and her husband first came to Australia in 2009 she received two threatening telephone calls from the Taliban, one in 2007 and one in 2008, nor that when they returned to Pakistan to visit her parents in 2010 they received another threatening telephone call and the threatening letter which the applicant produced. I do not accept that one night when the applicant and her husband and their son were coming back from visiting a relative in Shah Faisal Colony in Karachi they encountered two bearded men with guns. For the reasons given above, even if I were to accept that the applicant and her husband were telling the truth about this incident, I would not accept that, as the applicant and her husband have claimed, this was an attempt to kill them.” (emphasis added)

14    The Tribunal then went on to discuss other aspects of the evidence which it did not accept, coming to the following findings:

“118    The applicant’s husband suggested that the applicant had been targeted by the Taliban because of his political activity but, as I put to him, this is not the case which the applicant put forward. Her statement does not suggest that any reference was made to her husband’s political activities in any of the telephone calls or when she and her husband supposedly encountered the two bearded men with guns on 23 September 2010 nor does the threatening letter which she produced make any reference to her husband’s political activities.” (emphasis added)

15    The Tribunal next discussed why it was not prepared to accept the claims of either the husband or the wife as to the basis of the wife’s fear of persecution were she to be returned to Pakistan.

16    The Tribunal concluded that:

“125.    For the reasons given above I do not accept that, if the applicant and her family return to their home in Karachi now or in the reasonably foreseeable future, there is a real chance that the applicant or her husband or either of their two children will be persecuted for reasons of their race, their actual or imputed political opinion or their membership of any particular social group for the purposes of the Convention including their family and (in the case of the applicant) women working outside the home.”

17    The Tribunal rejected the claims for both the protection visa and any complementary protection obligations Australia might have to her and her family under the Act.

The basis of the appellants’ case for judicial review

18    The grounds of appeal in this Court exactly reflect the two grounds on which the appellants had earlier sought judicial review in the Court below. They claimed that:

(1)    the Tribunal contravened s 424A(1) by failing to provide particulars to the husband in compliance with s 424AA(b)(iii):

    of the evidence given by his wife of the three telephone calls at the Tribunal hearing that were also described in her written statement attached to her protection visa application;

    that the wife had told the Tribunal in the hearing that the people who attacked him in Karachi in 2008 belonged to the MQM; and

    that neither her statement in support of her claims forming part of her protection visa application nor the Taliban letter that she produced made any reference to his political activities.

(2)    the Tribunal had failed to provide particulars to the wife of the oral evidence given by her husband in compliance with s 424A(1) that he said that:

    the couple had been receiving threatening letters and telephone calls “all the time”;

    his attackers in 2008 could have been from either the MQM or the Taliban; and

    he had been targeted by the Taliban because of his political activity.

The trial judge’s decision

19    The trial judge rejected all three bases of the challenges put forward respectively by each of the husband and the wife. She held that, in substance, none of the items of evidence was “information” to which either of the statutory provisions applied. Her Honour held that each item was reflective simply of inconsistencies or gaps in the evidence of each of the husband and wife and reflected an evaluative process by the Tribunal.

20    The parties argued the same grounds in the appeal.

Consideration

21    The particular way in which something might be characterised as “information” for the purposes of either s 424A or s 424AA is not pellucid in either the Act or the jurisprudence that has considered those sections. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, the majority comprised McHugh J and Hayne J, with the latter of whom Kirby J agreed on the material issues to which I will refer at 341 [154] and 345-346 [173]. Their Honours held that the Tribunal had committed a jurisdictional error by not giving a notice to the applicant for review under the only relevant provision at that time, s 424A, of certain evidence given to the Tribunal by her daughter. In the words of Hayne J (228 CLR at 348 [184] and see too per McHugh J at 308 [37]):

“The information which the Tribunal obtained from the evidence given by the eldest daughter, and which it gave as a reason to affirm the decision under review, was specifically about the first appellant and members of her family. It therefore did not fall within the exception provided by s 424A(3)(a). On its face, s 424A(1) required the Tribunal to give particulars of the information to the appellants and to ensure, as far as practicable, that they understood why it was relevant to the review.”

22    Next, the High Court decided SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. There, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ analysed s 424A in a slightly different context, as their Honours made clear. They pointed out that the majority in SAAP 228 CLR 294 determined two points about the operation of s 424A namely that, first, its effect was mandatory so that a breach amounted to a jurisdictional error and, secondly, its temporal effect was not limited to the prehearing stage of the proceedings. They then turned to examine the application of the section to the facts of that particular case. They pointed out that, in SAAP 228 CLR 294, the relevant “information” was testimony of the appellants’ daughter that had been given in their absence. Their Honours contrasted that position with what was claimed to be the “information” in issue before them, that consisted of the appellants’ own prior statutory declaration to which the Tribunal explicitly drew their attention during the course of the hearing: 81 ALJR at 1195 [13]-[14]. Their Honours then examined the application of the Act to the facts of that case and in particular said:

“17.    Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

18. Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476-477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282-284] that the word “information”. [sic]

does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified 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, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.” (emphasis added)

23    Their Honours cautioned that, on the facts of that case, s 424A had not been engaged at all, because the relevant parts of the appellants’ statutory declaration were not “information” for the purposes of the provision. They said that s 424A had a more limited operation than the appellants had argued and that its effect was not to create a back door route to merits review in the Courts of the credibility findings made by the Tribunal (81 ALJR at 1196 [21]).

24    Subsequently, in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 513-514 [20]-[26], French CJ, Heydon, Crennan, Kiefel and Bell JJ returned to the consideration of s 424A. They noted that the Court had construed the section in both SAAP 228 CLR 294 and SZBYR 81 ALJR 1190 and that there was no challenge to the principles that those two cases had applied. The issue in SZLFX 238 CLR 507 was whether a file note that the Tribunal had not referred to in its reasons had, in fact, contained information that was the reason or part of the reason for affirming the decision under review. The Court held that it was not, because in order to engage the requirement to give particulars “the material in question should in its terms contain a ‘rejection, denial or undermining’ [SZBYR (2007) 81 ALJR 1190 at 1196 [17]; 235 ALR 609 at 615] of the review applicant’s claim to be a refugee”.

25    Their Honours then repeated the passage I have emphasised in SZBYR 81 ALJR at 1196 [18]. They held that the obligation created by s 424A, and in my opinion by its analogue s 424AA, depended on the Tribunal’s consideration, that is, its opinion, that the particular information would be the reason or part of the reason for affirming the decision under review. The Court highlighted the relationship of necessity that the word “would” created as the connecting factor between the obligation to furnish the requisite particulars and the Tribunal’s dispositive reasoning process. Thus, their Honours held that the Tribunal’s reasons showed that what had counted against the applicant for review before the Tribunal there were inconsistencies in his evidence. Accordingly, the Court held that, in the factual context, the only inference available was that the unreferred-to file note was not the reason or part of the reason for the Tribunal’s finding.

26    In this appeal, the particulars of each of the three items of information that the husband and wife respectively contended that the Tribunal had to provide to him and her under s 424AA(b)(iii) or s 424(1) was the apparently inconsistent evidence given by the other spouse on the same topic. As to the first item of information, the husband contended that the Tribunal should have given him particulars under s 424AA of what his wife had previously told the Tribunal about the three telephone calls and the Taliban’s letter, and explained to him that that evidence was relevant because it might enable the Tribunal to find against him on his claim that they had both been receiving threatening letters and telephone calls from the Taliban “all the time”.

27    In my opinion, that argument is fallacious. The Tribunal did not accept the husband’s evidence. It did so because it considered that his wife’s evidence was inconsistent with his. However, it did not arrive at that finding because the wife’s evidence, in its terms, had rejected, denied or undermined his claim. Rather, the Tribunal simply found that the wife’s evidence did not corroborate her husband’s evidence as part of its evaluative reasoning process.

28    Likewise, the wife’s claim that the Tribunal should have given her particulars, under s 424A, of her husband’s assertion that the couple had been receiving threatening letters and telephone calls “all the time”, suffers from the same vice. Both spouses had said that something similar, but not exactly congruent, had occurred. Both accounts were different. Both were not wholly consistent. However, neither account contained, relevantly, a rejection, denial or undermining of the other spouse’s account.

29    It was open to the Tribunal to accept or not accept both accounts. It chose to evaluate the evidence of each spouse on the issue based on the fact that their accounts were not consistent. When it came to evaluate whether it would accept the evidence of each spouse, it considered whether there were inconsistencies or gaps between their various accounts for the purpose of deciding whether, and to what extent, it could accept the respective account. The lack of consistency between the accounts did not entail that, on the present facts, either account contained a rejection, denial or undermining of the other. The Tribunal could have found that the accounts either were sufficiently consistent or corroborative or, as it did, lacked consistency or corroboration of each other. But, that conclusion was an evaluation by the Tribunal of the effect of the evidence of two witnesses that, in itself, was neutral as to the veracity or reliability of the other spouse’s evidence. Neither spouse had said that the subject matter of the evidence of the other had not occurred so as to deny or reject or undermine the other’s account.

30    For these reasons, in choosing not to accept either spouse on those points, I do not consider that the requirement in ss 424AA(b)(iii) or 424A(1) to give oral or written particulars of the other spouse’s information was engaged.

31    The second item of evidence related to the possible differences between the husband and wife as to the identity of those who attacked him with a knife in 2008, she saying that they were from the MQM and he that they were from either the MQM or the Taliban. Once again, it seems to me that the item of evidence which the respective spouse relied on for his or her argument consists, simply, of two accounts that are not necessarily inconsistent and which the Tribunal could evaluate as either supporting both cases or not, doing so as it saw fit. But each account did not, in its terms, reject, deny or undermine the claim of the other: see too e.g. SZJDB v Minister of Immigration and Citizenship (2009) 179 FCR 109 at 133 [104] per Buchanan J with whom Perram J agreed at 133 [107].

32    The third item of evidence concerned the husband’s assertion that he and his wife had been targeted because of his activities opposing the Taliban as compared to the wife’s evidence of threats in the three telephone calls and the letter that did not refer to her husband’s activities. The Tribunal found that, as was plainly the fact, none of the wife’s account of threats to her had referred to any activity of the husband as a cause of the Taliban’s acts. Nor did her original application for a protection visa refer to any connection between the threats that she had received and her husband’s activities. However, what the Tribunal made of the two spouse’s accounts were matters for it. The Tribunal was entitled to draw upon the wife’s original visa application (see now s 424A(3)(ba) which was inserted in the Act as a consequence of the decision in SAAP 228 CLR 294) and her evidence and to compare what her original application had said and did not say with the husband’s evidence.

33    The fact that the husband made an assertion that his perceived activities had been a cause of the Taliban targeting him and his wife was not, in my opinion, a rejection, denial or undermining of his wife’s claim in the way the evidence was as used by the Tribunal. The Tribunal, simply, evaluated the inconsistencies and gaps between the two accounts of the husband and wife and found it was unable to accept her version of events.

34    The way in which the Tribunal dealt with this third item of evidence in rejecting the husband’s claim is more problematic. That is because, in [118] of its decision record, the Tribunal identified what it understood was the case that the wife was putting forward and how it differed from what the husband had put as his case. However, in the end, I am satisfied that, on a fair reading of its decision record, the Tribunal was evaluating the absence of any evidence in support of the husband’s case in the wife’s account of three telephone calls and the contents of the letter as amounting to, in effect, a gap or lack of support of her husband’s case in other material that was available to the Tribunal. That is, in weighing up whether or not it was prepared to accept the husband’s account, the Tribunal considered that his account lacked evidentiary support in what the wife had said. That lack of support was not “information” that, itself had the effect, in the circumstances of this case, in terms, of rejecting, denying or undermining the husband’s claim to a dependent spouse protection visa. Rather, the absence of support was a matter to which the Tribunal could have regard in assessing whether or not it accepted his evidence. It was not “information” that was the reason or part of the reason for rejecting his claim within the meaning of the Act. The absence of material to corroborate the husband’s account was what the Tribunal evaluated in arriving at its determination.

Conclusion

35    For these reasons, I am not able to see any error in the trial judge’s decision and the appeal must fail. I will order that the appeal be dismissed and that the wife and the husband pay the Minister’s costs.

Associate:

Dated:    29 September 2014