BZAB of 2004 v Minister for Immigration
[2004] FMCA 1109
•25 October, 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAB of 2004 v MINISTER FOR IMMIGRATION | [2004] FMCA 1109 |
| MIGRATION – Review of Refugee Review Tribunal decision – no failure to comply with s.424A of the Migration Act 1958 – no jurisdictional error. |
| Migration Act 1958, s.424A |
| Tin v Minister for Immigration and Multicultural Affairs (2000) FCA 1109 Pemaj v Minister and Immigration and Multicultural Affairs [2001] FCA 635 |
| Applicant: | BZAB OF 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | BRG 449 of 2004 |
| Judgment of: | Jarrett FM |
| Hearing date: | 25 October, 2004 |
| Date of Last Submission: | 25 October, 2004 |
| Delivered at: | Brisbane |
| Delivered on: | 25 October, 2004 |
REPRESENTATION
| Agent for the Applicant: | Mr Volonski |
| Agents for the Applicant: | New Home Immigration Services |
| Counsel for the Respondent: | S A McLeod |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed;
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of six thousand dollars ($6000.00) to be paid within thirty (30) days of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 449 of 2004
| BZAB OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
This is, in effect, an application by the applicant in these proceedings to amend her application filed on 19 August, 2004 to add a further ground to the application. Although no application to do that has been made to me in those terms, in a practical sense that is what has transpired before me this morning. As I will hope to demonstrate, it seems to me to be a reasonable inference to draw from the circumstances that have presented themselves this morning.
By her application filed on 19 August, 2004 the applicant seeks to review a decision of the Refugee Review Tribunal given on 23 July, 2004. In her application she specifies five grounds upon which she relies. The fifth ground says this:
In the context of availability of country information regarding facts of politically motivated persecution in Kazakhstan, the Tribunal's failure to address the right issue must be regarded as a failure to observe the rules of natural justice, and so its decision is invalid.
That is the only ground of appeal in which there is reference to a failure to observe the rules of natural justice; or perhaps to put it another way, to afford the applicant procedural fairness. The failure to observe the rules of natural justice or to afford the applicant procedural fairness arises, it is said, because the Tribunal failed to address the right issue. What is alleged to be the “right issue” is identified in some of the grounds of the application.
On 7 September, 2004 the matter came before the court and directions were made for the orderly conduct of this litigation, leading to today’s hearing. One of the directions made required the applicant to file and serve a written outline of her argument no later than 14 days before today. Notwithstanding that direction, the applicant did not file an outline of submissions. The respondent did, and did so anticipating the arguments that might be raised by the applicant by reference to the application and grounds set out therein.
When the matter commenced before me this morning, the applicant through her migration agent, Mr Volonski, sought leave to rely upon a written outline of submissions. That leave was opposed, because as the respondent has correctly pointed out, it seeks to raise a new ground upon which the applicant seeks to rely in her application.
The ground is set out in paragraphs 3 through to 9 of the outline of submissions. In short compass however, she complains that section 424A of the Migration Act 1958 was not complied with by the Tribunal because it did not give to her for her comment certain information that the Tribunal subsequently relied upon when affirming the decision of the Refugee Review Tribunal.
Paragraph 7 of the outline of submissions sets out the core of the applicant's argument in this respect. It says:
Prior to, during the course of or after the hearing the Tribunal neither has put to the applicant whether other members of Miloserdie had been persecuted in the same manner as the applicant; has put forward its views regarding the lack of convention nexus in the applicant's complaints; has raised a question of possibility of her relocation within the state; nor it has given the applicant an opportunity to comment upon the aforementioned information, even though this information was relevant, significant to the decision to be made, and was specifically about the applicant.
As can be appreciated, there are really three matters said to be “information” for the purposes of s.424A of the Act that the Tribunal failed to put to the applicant for her consideration and comment. They are:
a)That there was no evidence that other members of Miloserdie had been persecuted in the same manner as the applicant;
b)That the Tribunal had a view regarding the lack of convention nexus in her complaints and what that view was; and
c)That the Tribunal had a view regarding the potential relocation of the applicant to another part of Kazakhstan.
It is worth considering the words of section 424A in their entirety. That section provides:
424A(1) Subject to subsection (3), the Tribunal must:
(a) Give to the applicant in the way the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review, and
(b) Ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review, and
(c) Invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) Except where paragraph (b) applies, by one of the methods specified in section 441A, or
(b) If the applicant is in immigration detention, by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) That is not specifically about the applicant or another person, and is just about a class of persons of which the applicant or other person is a member, or
(b) That the applicant gave for the purpose of the application, or
(c) That is non-disclosable information.
I will deal with each of the alleged items of “information” seriatim.
Dealing with the first matter, the Tribunal referred to the applicant's evidence in the course of its reasons and said at paragraph 66:
There is no suggestion that any other member in or volunteer with Miloserdie had been subjected to actual threatened harm by reason of their participation in the organisation. There is no suggestion in the evidence that the organisation Miloserdie was itself regarded as obnoxious to the "Nationalists", or to any other group in Talgar or Kazakhstan. In her evidence to the Tribunal, but not in her statement in support of her protection visa application, the applicant asserted that other members of Miloserdie had got letters or telephone calls which appear to have been of the same character as the letters and telephone calls she claims were received at her parents home.
No member of the organisation had been physically harmed. That no other member or volunteer had been threatened with or actually suffered harm by reason of their membership of the organisation would not of course be determinative of the credibility of the applicant's claim, but I regard it as a consideration of relevance because of the way in which the applicant puts her case insofar as Miloserdie, she claims is subversive to the "Nationalist" ideology. The applicant did not claim that there had been any previous or concomitant warning to her in her capacity as a volunteer with Miloserdie that she may be a target by reason of her involvement in the organisation.
Indeed, the applicant's evidence was that she walked freely about Talgar, where she was well known and respected. And in doing so, was frequently approached and asked to provide medical assistance. In the circumstances, and as I do not accept that the applicant was as significant a participant in the organisation as she claims, I do not accept that the assault had any connection with her participation in Miloserdie. And nor did it have any connection with her Russian ethnicity or her Christianity.
One can gather from that paragraph that the Tribunal was there setting out its conclusions about the applicant's evidence. There is no suggestion in that paragraph, and indeed no suggestion in any other part of the reasons of the Tribunal to which I have been taken, to the effect that there was any particular information before the Tribunal about persecution of those involved in the organisation known as Miloserdie, other than the evidence given by the applicant herself.
That being so, it seems to me that this aspect of the “information” sought to be relied upon by the applicant, namely that no other person who was a member of the Miloserdie organisation had been subjected to actual threatened harm by reason of their participation in that organisation is “information” that comes within section 424A(3)(b) of the Act. That is, it is information given by the applicant for the purposes of the application. It is not information to which the general obligation imposed by section 424A(1) of the Act applies. For that reason, even if leave was granted to agitate the new ground insofar as it concerned that information, the application on that ground would fail.
I turn now to the second identified category of "information" relied upon by the applicant. That is the suggestion that the Tribunal should have put to the applicant for her comment and consideration the Tribunal's view that there was no convention nexus in the applicant's complaints. The Tribunal’s conclusion in this regard appear to be encapsulated in paragraph 74 of the reasons. It provides:
To the extent that I have found that incidents of the kind described by the applicant in fact occurred, I'm not satisfied that either incident evidences any attempt to threaten or cause her harm for any convention reason.
There are some other references to the failure of the applicant to make out a fear of persecution for conventions reasons, see particularly paragraph 79 of the reasons for decision of the Tribunal.
In Pemaj v Minister and Immigration and Multicultural Affairs [2001] FCA 635, O'Loughlin J of the Federal Court of Australia dealt with a submission not dissimilar to that made to me in support of this aspect of the matter. In that case, His Honour was dealing with a suggestion that before drawing an adverse inference of credit or adverse findings of credit against an applicant the applicant needed to be informed of that possibility and the Tribunal's thinking needed to be revealed to the applicant. His Honour rejected that submission and held that in cases such as this there was really no analogy to be drawn with cases such as Browne and Dunn (1893) 6 ER 67: see paragraphs 52 to 57 of His Honour's reasons. In particular, at paragraph 54 and 55 His Honour said this:
54 The importance of the rule [the rule in Browne v Dunne] lies in the fact that it gives to a witness the opportunity of being informed of the area or areas in respect of which his or her evidence will be challenged. In a sense the philosophy behind the rule is reflected in part in the provisions of s 424A of the Act which requires the Tribunal to give to an applicant 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". But that is not the case here. The Tribunal did not have information that contradicted the existence of the Pemaj/Beci blood feud. In the case at Bar the Tribunal came to the decision for the reasons that it gave that it did not believe Mr Pemaj's evidence about the existence of such a feud.
55 The claim that the Tribunal should have adopted an adversarial role by putting contrary propositions to the applicant and his witnesses as they gave their evidence is somewhat novel. It would have the potential to place the Tribunal in a position of direct conflict with the applicant. The duty of the Tribunal Member is to inquire dispassionately and with neutrality but with the additional right to test and probe. Even in conventional adversarial litigation the rule in Browne and Dunn does not have universal application.
Whilst the circumstances being dealt with by O'Loughlin J in Pemaj are slightly different to those before me, nonetheless I think the principle is apposite: namely that it is not appropriate for the Tribunal to necessarily expose all of its reasoning process to the applicant for comment and consideration before its decision is made and pronounced. Moreover I do not consider that the Tribunal's conclusions that there was no convention nexus in the applicant's complaints was a fact or was information that was necessary to be disclosed by the Tribunal pursuant to s.424A of the Act.
In that respect I would adopt and apply the words of Sackville J in Tin v Minister for Immigration and Multicultural Affairs (2000) FCA 1109 at paragraph 51 to 54. In particular, His Honour says at paragraphs 53 and 54 the following:
53 Hill J’s observations [in Nadia v Minister for Immigration and Multicultural Affairs (2000) FCA 908] suggest that s.424A(1) applies when the Tribunal becomes aware of some fact or circumstance that appears to be adverse to the applicant on an issue relevant to the applicant's case. It is not concerned with the subjective thought processes of a Tribunal Member. This view of s.424A(1) is reinforced by the dictionary definition of "information". The Macquarie Dictionary gives as the first definition:
"Knowledge communicated or received concerning some fact or circumstance".
That s.424A(1) is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal receives further support from the statutory context. Section 424(1), for example, empowers the Tribunal to "get any information that it considers relevant". The word "information" in s.424(1) is used clearly enough to refer to knowledge of relevant facts or circumstances communicated to or received by the Tribunal. In my opinion the same word is used in the same sense in s.424A(1).
54: It follows that a subjective determination by the Tribunal that the applicant's account is, or may not be, credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alluded the applicant to the possibility that her evidence might not be accepted at face value its failure to do so would not have contravened s.424A(1).
Again, even though His Honour's comments there were dealing with issues of credibility they have equal application, I think, to the matters raised before me. Again, I would refuse leave to rely on any ground which is envisaged by paragraph 7 of the applicant's outline of submissions in so far as it concerns the second category of "information".
I turn now to the third ground and that is whether the question of relocation within Kazakhstan was raised with the applicant for her comment and consideration. That aspect of the matter is contained in paragraph 80 of the Tribunal's reasons. The opening words of that paragraph make it plain that the reasoning process contained in paragraph 80 was not the primary reason for the Tribunal affirming the decision under review. It commences with these words:
“... even if I were to accept that all these incidents occurred and that they occurred for any one or more of the convention reasons identified.”
Those words plainly indicate that the position set out in paragraph 80 of the reasons is an alternative position. Earlier in its reasons the Tribunal had rejected expressly that the applicant had a genuine fear of persecution for a convention reason and rejected large parts of the applicant's evidence concerning particular incidents that she complained of and that were, she said, representative of the persecution that she faced.
Moreover, the comments and observations that I have made above with respect to s.424A being inapplicable to the process of reasoning by the Tribunal apply to this "information" relied upon by the applicant.
Further, even if the Tribunal’s view that the applicant could relocate to another region of Kazakhstan was "information" for the purposes of s.424A, it is nonetheless information that the applicant gave for the purposes of her application and by reason of s.424A(3)(b) the general obligation under s.424A(1) would not apply to it. For that reason it seems to me that any ground that relies on that information must also be doomed to fail.
The outline of submissions sought to be relied upon makes it plain that the failure to give the relevant information was a breach of s.424A(1) and it is that breach that constituted the relevant jurisdictional error. It is not suggested in the outline of submissions that, although falling short of a breach of s.424A of the Act, the failure to give the information particularised in paragraph 7 was nonetheless a breach of the rules of natural justice or denied the applicant procedural fairness, thereby entitling her to relief in these proceedings.
The first and third matters referred to in paragraph 7 of the submissions were plainly within the applicant's case. They were matters raised by her in the course of her evidence and the Tribunal has simply used her evidence in its reasoning process. There has been no denial of procedural fairness or natural justice to the applicant.
The second ground particularised in paragraph 7 is simply the conclusion to which the Tribunal has come and the failure of the Tribunal to flag that conclusion prior to delivery of its reasons and its decision is not a denial of procedural fairness or natural justice.
Accordingly, the application to rely on paragraphs 3 to 9 of the outline of submissions is refused and as I have said at the commencement of these reasons any application that one might infer from those outline of submissions to amend the application filed by the applicant on 19 August, 2004 is refused.
As to the other grounds relied upon by the applicant, I am of the firm view that none of the matters raised by her demonstrate a proper basis for interfering with the decision under review. The Tribunal addressed the relevant issue, namely whether the applicant had a genuine fear of persecution for a convention reason. It decided that issue against her. No error in the approach of the Tribunal is demonstrated.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S Haysom
Date: 31 March 2005
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