M33 of 2004 v Minister for Immigration - [2006] FMCA 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M33 of 2004 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 171

MIGRATION – Refugee Review Tribunal – inconsistency between earlier written statements made in visa application and evidence given at the tribunal hearing – inconsistent information formed a part of the tribunal’s reasons – information for the purpose of s.424A – matter remitted to the tribunal.

Migration Act 1958, ss.417, 418, 420, 424(1), 424A, 430, 486A(1)

NAHI v Minister for Immigration [2004] FCAFC 10
Rodrigo v MIMIA [2001] FCA 1027
Rahman v MIMIA [1999] FCA 73
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZDXC v Minister for Immigration [2005] FCA 1306
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCFCA 2

Applicant:

APPLICANT M33 OF 2004

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG1218 of 2004

Judgment of:

Riethmuller FM

Hearing dates:

12 September 2005 & 27 January 2006

Date of Last Submission:

24 March 2006

Delivered at:

Melbourne

Delivered on:

25 May 2006

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Mano Associates

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of Certiorari issue quashing the decision of the second respondent made on 11 March 2003.
That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1218 of 2004

APPLICANT M33 OF 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant applied to the High Court on 25 February 2004 seeking review of a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa. The Tribunal’s decision was handed down on 4 April 2003.
On 12 April 2003 the applicant made an application under s.417 of the Migration Act 1958 (“the Act”) requesting that the first respondent exercise her jurisdiction under the Act. This application was refused.
On 25 February 2004 the applicant filed an application for review with the High Court. The respondent argues that the application was out of time as s.486A(1) requires that an application to the High Court in respect of a privative clause decision must be made within 35 days of an applicant receiving actual notice of the decision.
On 23 July 2004 the High Court remitted the proceeding to the Federal Court. On 16 September 2004 Finklestein J of the Federal Court remitted the proceedings to the Federal Magistrates Court.
On 1 March 2005 the applicant filed an amended application and contentions of fact and law. The applicant argues that the Tribunal’s decision (handed down on 4 April 2003) was affected by jurisdictional error on multiple grounds, namely that:
a.The Tribunal failed to comply with s.418(3) of the Migration Act 1958;
b.The Tribunal failed to comply with ss.420, 424(1) and 430 of the Migration Act 1958;
c.The Tribunal has failed to understand the deeper significance of the applicants claim. The tribunal failed to discuss the relevant country information with the applicant and how that information likely to be the reason or the part of the reason for the refusal of the application. Consequently, the tribunal has failed to undertake its mandated task of correctly interpreting sections 36, 65 and s.424A of the Act.
d.The applicant says in his statement that:
i.he organised an election rally at his business premises on 2/10/2000, in his evidence as extracted by the tribunal he says
ii.in his initial submission he said he organised an election rally in front of his shop on 2/10/2000.
e.In his statement he says that on 3/10/2000 supporters of the ruling party broke the front window of the shop. In his evidence extracted by the tribunal, the applicant says that “the PA came to his shop the following day (ie: 3/20/2000) and the broke the front window.
f.In his statement the applicant says that on 4/10/2000 the police arrested his shop assistant, the police detained him that same day and he was released on bail by court the next day, in his evidence he says that his shop assistant was arrested on 4/10/2000 and that he (the applicant) was held overnight and released without condition and then in explanation he said he had meant to tell the tribunal he had been released by the court on bail and was supposed to return to the court but did not.
g.In his statement the applicant says that his shop was destroyed by opposing party supporters on 12/10/2000, in his evidence he claimed that his shop was destroyed the day after the elections. While there appears to be no “discrepancies” in his claims let alone some of them very significant discrepancies for the tribunal to conclude that the applicant was not a credible witness, the very basis for so concluding was non existent or there was no evidence to so conclude.
h.The tribunal’s conclusion that the applicant was not an active member of the UNP was bit a private opinion and not on the evidence and the conclusions that his shop was not destroyed was contrary to the country information relied upon by the tribunal.
i.The tribunal has failed to correctly assess the applicant’s claim in relation to the police claim of him “employing an LTTE member and contributing to the LTTE financially”.

Background

The first applicant is a 40 year old male Sri Lankan citizen. He is an ethnic Singhalese and Buddhist.
The applicant came to Australia on 5 May 2001 on an entertainer’s visa.
On 16 May 2001, the applicant applied for a protection visa due to fear of persecution. The applicant claims that if he were to return to Sri Lanka he would be at risk of persecution by members of the People’s Alliance. He also claims that he may be harmed by the police who he believes have implicated him with the terrorist organisation the LTTE, more commonly known as the Tamil Tigers.
On 12 June 1997, a delegate of the first respondent determined that the applicant was not a person to whom Australia had protection obligations and refused the application.
On 13 July 2001 the applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal. On 5 March 2003 the applicant provided oral evidence to the Tribunal.
On 4 April 2003 the tribunal handed down its decision affirming the decision of the minister’s delegate. In making its decision, the tribunal considered the applicant’s claims at page 3 of its decision:
He claims that he is a staunch supporter of the UNP and actively supported that party during the general elections in 2000. In that capacity, in his initial submissions he said he organised an election rally in front of his shop on 2 October 2000, attended by the local UNP candidate, Mr Jayantha Kottagoda. He claimed that the PA candidate came to his shop the following day and his supporters broke the front window and abused him. He says he went to the police but they refused to take a statement. On the following day (4 October), police arrested his shop assistant, a Tamil, on the pretext that he is an LTTE member. The applicant went to help him at the police station but was detained and accused of employing an LTTE member and contributing funds to the LTTE. The Applicant said he was detained, presented to the Court and released on bail. On the advice of Mr Kottagoda, he closed his shop and sent his family to Matara. He claimed that his shop was looted and set ablaze on 12 October and that his house was also looted. He was not home because he says he had moved in with a neighbour to avoide PA thugs. He told Mr Kottagoda who said he would take up the matter with the police but subsequently told the application he could no longer be of assistance because he had found out the applicant was assisting the LTE. The applicant was informed by his lawyer that he was charged with helping the LTTE on the bases that his shop assistant had confessed to that effect. The applicant sought out an agent who obtained an Australian visa for him on the pretext of performing in a cultural event in Australia.
In making its findings, the Tribunal found that the Applicant was not a reliable witness and that significant aspects of his claim were not credible. The Tribunal held at page 8 of its reasons:
The Tribunal is satisfied that there are several discrepancies in his claims, some of them very significant, that lead it to conclude that he has fabricated his account of events.
The Tribunal identified four main discrepancies in the applicant’s evidence, as set out at paragraph 19 of the supplementary submissions of the first respondent:
1.Inconsistencies between the applicant’s oral evidence at the Tribunal hearing and written statements in or in support of his initial protection visa application (pp 7-8);
2.Significant gaps in the applicant’s knowledge of political matters in Sri Lanka (pp 8-9);
3.The implausibility of aspects of the applicant’s claims (pg 9);
4.Aspects of the applicant’s claims were inconsistent with or not supported by relevant country information (pg 9)

Inconsistencies between the applicant’s oral and written evidence

At page 8 of its decision, the Tribunal considered the inconsistencies in the applicant’s evidence:
At the hearing, he said he could not identify the PA thugs who attacked his shop prior to the election as he did not recognise them. This is contrary to his previous statement that the PA candidate had attended the shop when the incident occurred. He said his shop was burned down the very day after the election (not two days later) and that he and his Tamil assistant were detained on that day (not prior to the elections as he previously claimed). He said he was released by police unconditionally (not by a Court, on bail and having been charged with assisting the LTTE as he previously claimed).
The claim that he was hiding in Matara after October 2000 is at odds with his statement in the application form, made with the assistance of a solicitor/registered migration adviser, that he lived at the same address in Colombo until May 2001. It is also at odds with the initial claim that he sent his family to Matara but he was hiding with neighbours. The fact that he was able to leave the country through the international airport, using his own passport and without being intercepted, runs contrary to his claim that he had been charged for assisting the LTTE and was on bail. In such circumstances, it is likely he would have been identified as a fugitive from justice as he negotiated security procedures attendant on departing Sri Lanka.
The ‘previous statement’ referred to in this quote refers to documents provided to the delegate, as was made clear to the applicant at the tribunal hearing where the member said:
In assessing your case I not only listen to what you say today, I have regard to all of the information you have submitted with your protection visa application.

2. Significant gaps in the applicant’s knowledge about the UNP

The Tribunal rejected the applicant’s claim that he was a member of the UNP based on significant gaps in the applicant’s knowledge about the party (pp 8-9). Such gaps included telling the Tribunal that Mrs Kumaratunge had been re-elected president in 2000 when she had in fact been re-elected in 1999, and not knowing how many seats there were in the Colombo district parliament. While the Tribunal accepted that the applicant was a UNP supporter, it found that the applicant had concocted claims that he was specifically targeted by the PA during or after the October 2000 elections.

The implausibility of the applicant’s claims

In considering the applicant’s claim that he was suspected of assisting the LTTE, the Tribunal referred to the comments of the first respondent’s delegate, who stated, citing DFAT “it is utterly implausible that a Singhalese would support the LTTE.” Based on these statements, and the contradictory accounts provided of the applicant’s detention, the tribunal concluded that the claim was fabricated and that the applicant would not be suspected of supporting the LTTE should be return to Sri Lanka.

4. Applicant’s claims inconsistent or not supported by relevant country information

At page 9 of its decision, the tribunal said:
The Tribunal is satisfied that the Applicant has sought to exploit the generally violent culture surrounding election campaigning in Sri Lanka by fabricating a story that he has personally been victimised by PA supporters, including police he says follow that party.
On the information before it, the tribunal concluded that Sri Lanka has a violent election culture. However, the tribunal noted the statement of Kenny J in Rodrigo v MIMIA [2001] FCA 1027 (following Hely J in Rahman v MIMIA [1999] FCA 73) that “the fact that political parties engage in violence from time to time does not mean that there is persecution within the meaning of the Convention.”
The tribunal concluded at page 12 and 13 of its judgment:
In the circumstances of the immediate matter, and in light of the above judgments, the Tribunal finds that the Applicant’s fears of harm in the context of generalised electoral violence that accompanies political campaigning in Sri Lanka, are not fears of persecution for Convention reasons. In addition, he can minimise the already remote likelihood of being assaulted in the future by avoiding situations where violence is likely to break out, such as attending rallies, where the risk of street clashes is highest. That is not such a restriction on his right to participate in democratic processes that it amounts to persecution.
In any event, the Tribunal is satisfied that the Applicant can obtain state protection if he is anxious that he faces attack by political enemies. He claims he previously reported an attack and threats to police by they told him they had no time to deal with it. Such a response is contrary to the information referred to by the delegate, noting that special efforts have been made to deal with election violence. With regard to anonymous threats, it is difficult to imagine what sort of action police might take in the context of election campaigns that involve thousand of reports of street violence, no identification of those making threats and a knowledge that the threats are not implemented, as conceded by the Applicant. On the other hand, DFAT has reported that all people have equal access to the law and police protection (CX20894, above). In the case of Minister for Immigration & Multicultural Affairs v Yasouie [2001] FCA 1333, Hill J canvassed the authorities on the issue of state protection. While that case was about protection in a third country (Germany) His Honour has identified the proper manner in which to assess state protection. At 15 he states:
The Tribunal was of the view that the respondents would only succeed it they showed, as the Tribunal thought they did show, that protection from serious harm was not guaranteed to them. The true question for the Tribunal was not that. It was whether the German state was willing and able to protect them.”
On this basis, the tribunal concluded there it was satisfied, contrary to the applicant’s claims, that the Sri Lankan state would be willing and able to protect him should be seek state protection.

Grounds of review

The applicant’s contentions of fact and law explain the grounds of review as follows:
9. The tribunal rejects the applicant’s claims on the ground of credibility and that too on the ground that the applicant’s evidence differed from his earlier statement. The applicant has sought to establish in his amended application that there was hardly any difference (and if there was at all) between his evidence and written statement to merit its rejection on the ground that his claim was fabricated on the basis of “very significant discrepancies”. There being no basis for that finding and it is clear then that the tribunal has its finding in the absence of evidence.
10. The conclusion that the tribunal reached regarding the applicant’s claim that he was an active member of the UNP was basically on the ground to test his knowledge regarding the history of the UNP. (It will indeed be surprising to find if any one at all will be able to mention the dates of earlier elections in any country). Therefore the assessment criteria that the tribunal adopted was not something that was statutorily ordained but by the tribunal’s own making. Therefore the finding was the result of a private opinion. There was no evidence to substantiate the tribunal’s finding that the applicant had fabricated his claims and it certainly flies in the face of that body of evidence that the tribunal has quoted.
11. The tribunal has failed to consider the applicant’s claim regarding the police allegation that he was employing LTTE members and contributing to that organization financially. The tribunal, in rejecting this claim (which it has not correctly considered) places reliance on a DFAT cable which says “It is utterly impossible that a Sinhalese would support the LTTE.” This statement has absolutely no relevance to the applicant’s claims. Therefore the rejection of the applicant’s claim as not being credible is not according to law, based on the absence of evidence, an incorrect interpretation of the law, a failure to comprehend the applicant’s claim and an approach exhibits procedural unfairness.
12. It is incumbent upon a tribunal, as part of its decision making process and its inquisitorial method of operation, to ask of the applicant the right questions to enable it to form its opinion on the evidence so obtained. To form its opinion in the absence of evidence or to give its own opinion is an error that points to the breach of a statutory obligation that is essential to the validity of the decision. It can not be argued that the breaches complained of are a non-essential part of the decision making process in nature. The tribunal has therefore fallen into error in that its decision is not a decision made under the Act and therefore not a privative clause decision.

Ground (a)

This ground concerns an allegation of failure to comply with s.418 of the Act. Section 418 provides:
Section 418 - Secretary to be notified of application for review by Refugee Review Tribunal
(1).If an application for review is made to the Refugee Review Tribunal the Registrar must, as soon as practicable, give the secretary written notice of the making of the application.
(2)The secretary must, within ten working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a)sets out the findings of fact made by the person who made the decision; and
(b)refers to the evidence on which those findings were based;
(c)gives the reasons for the decision.
(3)The secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document or part of a document that is in the secretary's possession or control and is considered by the secretary to be relevant to the review of the decision.
There is nothing to show that the tribunal failed to comply with s.418, and in any event how that would provide for a basis for judicial review of the decision. There is no argument that there was any information not supplied to the tribunal and no material placed before the Court particularising the claim in this regard. In the circumstances I refuse this ground for review.

Ground (b)

The second ground is an alleged failure to comply with ss.420, 424(1) and 430 of the Act. Those sections are in the following terms:
Section 420 - Refugee Review Tribunal's way of operating
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
Section 420 - Tribunal may seek additional information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Section 430 - Refugee Review Tribunal to record its decisions etc.
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
(3)Where the Tribunal has prepared the written statement, the Tribunal must:
(a)return to the Secretary any document that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
The issues concerning s.424A are dealt with below. To the extent that the applicant relies upon s.430 there is no evidence that the Tribunal has failed to comply with that section in this case. I do not find any basis for judicial review with respect to these sections, other than the matters that are dealt with below.

Ground (c)

This ground is based upon an allegation that the Tribunal ‘failed to understand the deeper significance of the applicant's claim’. This is not a proper particular of a ground for judicial review and at best appears to provide an indication that a merits review was sought. Such a ground ought not to be relied upon in an application, and it ought ordinarily to be struck out before the matter is listed for hearing.

Ground (d)

It was identified on the first day of hearing that s.424A had potential application in this matter. An adjournment was granted to enable the parties to file supplementary written submissions regarding the possible application of s.424A. Further oral argument on the issue was heard and I then reserved my decision. Before I gave my reasons, the Full Court gave judgment in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCFCA 2. The parties were invited to make further submissions on the s.424A issue, an invitation of which both parties availed themselves.
The further submissions on behalf of the applicant were:
THE APPLICANT’S OUTLINE OF ARGUMENT PURSUANT TO THE ORDER OF HIS HONOUR FEDERAL MAGISTRATE REITHMULLER (sic) DATED 12/09/05
The short issue raised in this argument (and which was only raised by the first respondent’s counsel at the time of oral submission) was whether the Tribunal has breached section 424 “A” of the Migration Act 1958 in assessing the applicant’s credibility in that whether he and his employee were arrested before his shop was destroyed by fire or later, the statement made in his initial application and the statement made at the hearing to the effect that the employee and himself were arrested after the shop was destroyed by fire.
Secondly, whether his evidence at the hearing that he had relocated to Matara for about 5 to 6 months was at odds with his response to question 30 on form “C” (which asked the applicant to disclose addresses lived at for 12 months or more) and whether he was released unconditionally or was released on bail, and other related credibility issues. It would he fair to say that the findings of the Tribunal on these issues were integral and essential parts of the reason for the decision.
That had the Tribunal complied with section 424A of the Migration Act, there would have been a difference in the outcome as the Tribunal says that the discrepancies in his claims were significant that has led it to conclude that he has fabricated his accounts of events.
Was the Tribunal clear what it was referring to when it said “Now, in this initial application” (ie - the application for a protection visa or the application for review)?
The issue therefore is whether the Tribunal erred in not disclosing to the applicant the adverse information which was personal to him as well as the wider duty to disclose adverse information both of which were significant to the making of the decision. Relevantly the DEFAT cable to the effect that “it is utterly implausible that a Sinhalese would support the LTFE (page 78 of the CB) and the Tribunal finding that the “applicant has sought to exploit the generally violent culture surrounding election campaigning in Sri Lanka by fabricating a story that he has been personally victimized by PA supporters, including Police he says follow that party”.
In VAAC -v- Minister for Immigration and Multicultural and Indigenous Affairs, North, Merkel and Weinberg JJ stated, on the basis of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah the continued existence of the common law requirements of natural justice is not overridden by any statutory scheme. It is well established that the rules of natural justice require that the decision- maker bring to an applicant’s attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it; also Kioa v West (1985) 159 CLR 550 at 587.
It would therefore emerge from the transcript that neither of this information was put to the applicant in accordance with section 424 A of the Migration Act, nor was the personal information put to him as contemplated by section 424 A. Therefore the applicant was denied procedural fairness.
The respondent also made further submissions dated 24 March 2006, stating:
11.In respect of the first respondent’s argument at paragraph 20 of her supplementary outline, the decision of SZEEU provided little conclusive guidance. In relation to an inconsistency between an applicant’s oral evidence before the Refugee Review Tribunal (“Tribunal”) and his or her earlier written statements before the first respondent’s delegate, Allsop J held that such an inconsistency may constitute “information” within the meaning of subsection 424A (1) of the Migration Act 1958 (“Act”) [See SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FCAFC 2 at [220]-[225]]. Although Moore and Weinberg JJ did not expressly address this issue, Weinberg J apparently agreed with Allsop J’s approach [See SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FCAFC 2 at [158]]. Such an inconsistency in an applicant’s evidence may attract the operation of section 424A of the Act in particular circumstances. However, for the following reasons, no such circumstances arose in the present case.
12.In SZEEU, Allsop J identified one situation where such an inconsistency would not enliven an obligation under section 424A of the Act. At [227], his Honour stated that:
There may, in any given case be a relevant distinction to be drawn between using information as part of the reasons and the information simply being the context or platform for questioning, the answers to which questioning the Tribunal does not believe and such answers (and not the information) being a part of the reason.
13.For the reasons set out in paragraphs 12 to 14 and 21 of the first respondent’s supplementary outline, it is submitted that this situation also arose in the present case.
14.Finally, in SZEEU, the Full Court did not disturb the legal principle that, even if a breach of section 424A of the Act has occurred, no reviewable error arises where there exists more than one independent and alternative basis for the Tribunal’s decision [See, for instance, SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FCAFC 2 at [231]-[234], [248] and [255]]. The first respondent therefore maintains that, irrespective of any application of section 424A to the present case, the arguments set out in paragraphs 24 to 29 of her supplementary outline dispose of the applicant’s application for judicial review [The argument set out in paragraph 30 of the first respondent’s supplementary outline is unaffected by the Full Federal Court decision in SZEEU].
The respondent submitted in her supplementary outline dated 10 January 2006:
12.However, the information to which subsection 424A (1) refers must also be “the reason, or a part of the reason, for affirming the decision that is under review”. In SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197 (“SZEBX”), Allsop J described at [4] the Tribunal’s assessment of the appellant’s claims in the following terms:
The Tribunal was not satisfied that the appellant was being truthful in his claims and found that he was not a credible witness. It found that his responses at the oral hearing were often vague and inconsistent with his written claims and those in this protection visa [application]. Among these inconsistencies was that during the hearing the appellant said he came to Australia on the basis that he was a refugee but did not know until he was in Australia that he could apply for protection. Further, the appellant was unable to describe other that vaguely the content of the propaganda material that he claimed he distributed. The Tribunal was not satisfied the he was a wanted political dissident given that country information indicated that exit checks in China were thorough and no wanted political dissident would be able to leave the country without being apprehended. The tribunal found it to be implausible that his wife has been forcibly sterilised as a result of her husband’s claimed activities which the Tribunal had earlier considered and rejected and further, that the appellant’s wife would not have made international phone calls of such a sensitive nature and endanger her own and her children’s lived even if the calls were made from a friend’s phone [Emphasis added.]
13.At paragraph [20], Allsop J stated that:
In its reasons the tribunal made reference to material that had been provided by the applicant before the application for review to the Tribunal. On page 11 of its reasons, the Tribunal referred to the appellant’s application for a protection visa. This was part of the process of questioning the appellant and weighing and evaluating the reliability of his evidence to the tribunal. There were other examples of this evaluative process on pages 12, 13 and 15 of the reasons.
14.His Honour concluded at [22] as follows:
There was no breach of s 424A here. The earlier written material in the appellant’s visa application was “information” but it was not the reasons or part of the reason for the decision. The appellant’s evidence to the Tribunal was substantially rejected because of the evaluation of what he was telling the Tribunal at the hearing. Within that hearing process the Tribunal referred to the visa application and its contents. But that information provided only part of the context, or framework, of the questioning. The reason for affirming the decision under review was the rejection of the oral evidence of the appellant largely in answer to that questioning. It cannot rightly be said that the background information for the questioning was the reason or part of the reason for that decision [Cf. SZECF v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 1200 at [17]-[35] and SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 1203 at [22]-[26]].
…
21.Furthermore or alternatively, the Tribunal’s rejection of the applicant’s claims did not result from the earlier written information provided in or with his protection visa application. Rather, as occurred in SZEBZ, the Tribunal in the present case rejected the applicant’s claims due to its “evaluation of what he was telling the Tribunal at the hearing”. That is, the Tribunal rejected that applicant’s claims because it found that he was not “a reliable witness” and that “significant aspects of his claims were not credible”. As in SZEBZ the earlier written material was not the reason or part of the reason for the decision [See also SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 at [19]-[24]]. It simply provided part of the context, or framework, of the Tribunal’s questioning of the applicant at the hearing, which led to an adverse assessment of the applicant’s credit and of the credibility of this claims generally [See SCB 20-23. See also SZBCF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1719 at [32]-[35]].
The applicant’s claims can be condensed down to two issues. First, should the inconsistencies between earlier written statements provided by the applicant and oral evidence given at the tribunal hearing have been the subject of a s.424A notice; and second, should the applicant have had an opportunity to respond to the contents of the DEFAT cable?
With respect to the latter, it is clear that the applicant has no basis for judicial review with respect to the country information as it clearly fell within the exception in s.424A(3): that is information that was not specifically about the applicant or another person but about a class of persons of which the applicant or the other person is a member.
The first issue requires more detailed consideration. In SZDXC v Minister for Immigration [2005] FCA 1306, Hely J identified the two step reasoning process that must be adopted, saying, at [10]:
Two considerations therefore arise:
(a) whether there is ‘any information’ for the purposes of subs 424a(1)(a); and
(b) if so, whether it can be said to be information the RRT considered would be the reason or part of the reason for affirming the decision under review.
As set out earlier in this judgment, the tribunal considered the inconsistencies in the applicant’s evidence at page 8 of its decision:
At the hearing, he said he could not identify the PA thugs who attacked his shop prior to the election as he did not recognise them. This is contrary to his previous statement that the PA candidate had attended the shop when the incident occurred. He said his shop was burned down the very day after the election (not two days later) and that he and his Tamil assistant were detained on that day (not prior to the elections as he previously claimed). He said he was released by police unconditionally (not by a Court, on bail and having been charged with assisting the LTTE as he previously claimed).
The claim that he was hiding in Matara after October 2000 is at odds with his statement in the application form, made with the assistance of a solicitor/registered migration adviser, that he lived at the same address in Colombo until May 2001. It is also at odds with the initial claim that he sent his family to Matara but he was hiding with neighbours. The fact that he was able to leave the country through the international airport, using his own passport and without being intercepted, runs contrary to his claim that he had been charged for assisting the LTTE and was on bail. In such circumstances, it is likely he would have been identified as a fugitive from justice as he negotiated security procedures attendant on departing Sri Lanka.
As conceded by the first respondent at paragraph 11 of their further submissions, an inconsistency may constitute “information” within the meaning of subsection 424A(1) of the Migration Act 1958 (“Act”).
The second part of the test was considered in SZEEU v Minister for Immigration [2006] FCFCA 2 at [215] where Allsop J said:
In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.
Weinberg J agreed with this reasoning in SZEEU at [155].
In SZEEU, the court addressed whether a prior inconsistent written statement could constitute information when considering the factual circumstances of the individual case of SZBMI. In making its decision in SZBMI, the tribunal relied upon a written statement of the appellant which supported the appellant’s visa application. In the statement, the appellant claimed to have fled overseas to avoid persection.
In his reasons, Allsop J said:
220.I do not agree with Moore J that the flight information was not a part of the reason for affirming the decision. Whilst it is true to say that the flight information was falsified by an answer to the Tribunal, I do not agree that it played no part in the relevant reasoning of the Tribunal. Though a concession was made at the hearing as to the fact of the dates of leaving, the fact of inconsistency of the prior statement in this respect was a part, even though a subsidiary and minor part of the reason for the decision.
Weinberg J concurred with the reasoning of Allsop J (at [158]).
In SZBMI, counsel for the appellant claimed that a second piece of information should also have been the subject of a s.424A notice. In addressing this issue, Allsop J held:
227.The "similar claims information" was, in my view, information. The Tribunal had identically or substantially identically worded statements from others from the same adviser. That was knowledge communicated to the Tribunal concerning some particular fact, subject or event and was knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal. Whilst it does not appear to play a central or integral role in the reasoning process displayed in the reasons, I conclude that it did play a part in the disbelief of the appellant, which was the or a reason for the decision of the Tribunal.
Weinberg J came to a similar conclusion:
164.With regard to the second category of "information", which Moore J has aptly characterised as "the similar claims information", I am satisfied that this constituted information for the purposes of s 424A. I agree with Allsop J’s conclusion that it played a part (albeit in conjunction with the other factors that Moore J has identified) in the Tribunal’s conclusion that the appellant’s evidence should not be accepted. It makes no difference, in my view, that the Tribunal’s comments regarding the similar claims information appeared in its reasons after it had already indicated that it rejected the appellant’s evidence. The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention. Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play "a part" in its reasons for decision. It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person’s claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal’s reasons must, of course, be read as a whole.
165.The possibility that the similar claims information contributed to the Tribunal’s rejection of the appellant’s claim cannot realistically be excluded. The appellant’s credibility was of critical importance to his claim. Any "information" that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played "a part" in the decision. For that reason, the Tribunal’s failure to provide the appellant with notice, in writing, of its intention to rely upon that "information" gave rise to a breach of s 424A, and in accordance with SAAP, to jurisdictional error.

I note the findings at page 8 of the tribunal decision where it was said “The Tribunal is satisfied that there are several discrepancies in his claims, some of them very significant, that lead it to conclude he has fabricated his account of events.” The tribunal then engaged in a comparison of the initial submissions of the applicant with statements made by the applicant at the hearing. At page 9 of its decision, the tribunal went on to say:
“The tribunal is satisfied that the Applicant has concocted claims that he was specifically targeted by PA members during and/or after the 2000 general elections. It does not accept that his shop was burned to the ground or that he was detained and charged as he claimed, nor does he accept that he has been targeted by members of the PA because he is a supported of the UNP. It finds that he was not persecuted for reason of his political opinion while he was in Sri Lanka and he was of no interest to Sri Lankan authorities when he left the country.”
Unlike in SZEBX where the tribunal was found to have relied only on the oral evidence of the applicant in rejecting that applicant’s claim; the tribunal’s rejection of the applicant’s evidence in this matter was based on the inconsistency between the written evidence provided prior to the review application and the oral evidence given before the tribunal. I am satisfied that the inconsistent information formed a part of the reasoning of the tribunal.
I am therefore satisfied that the inconsistency between the applicant’s prior written statements and oral evidence given before the tribunal constitute information for the purpose of s.424A(1).

Ground (e)

In support of this ground the applicant says that there was no evidence before the Tribunal upon which to make an adverse credibility finding with respect to the applicant. The findings of fact are uniquely within the province of the Tribunal. On the material before the Tribunal the findings of credit against the applicant were clearly open to it on the material before it. The basis for such findings is set out above. It is clearly open to the Tribunal to prefer country information over the evidence of the applicant: see NAHI v Minister for Immigration [2004] FCAFC 10 at [11].

Ground (f)

In support of this ground, the applicant says that the tribunal's finding that he was not an active member of the UNP was a private opinion and not open on the evidence. This ground misstates the finding of the tribunal. The tribunal found that it did not accept that he was an active member of the UNP in the way that he described, but did accept that he was a UNP supporter. There is a significant distinction between the tribunal not accepting the proposition of fact, and a Tribunal finding positively to the contrary. In this case the tribunal was simply not satisfied of that fact. This is clearly a question of fact that the tribunal is empowered to determine and is not a matter that can properly be the subject of judicial review.

Ground (g)

In support of this ground the applicant argued that the tribunal's finding that the applicant's shop was not destroyed was contrary to country information relied upon by the tribunal. As with the previous ground the tribunal did not make a positive finding in this regard, but simply did not accept that his shop was burned as he had claimed. It was a finding that was clearly open to the tribunal on the material before it.

Ground (h)

Under the eighth ground enumerated, it was again alleged that the tribunal relied upon a private opinion instead of the evidence before the tribunal. Again, it was a matter for the tribunal not being satisfied having regard to conflicting evidence before it. There is nothing in the tribunal's reasons to indicate that the tribunal has imported some private opinion or supposition outside of the material before it in the reasoning processes it was required to undertake.

Ground (i)

With respect to the last ground it is simply said the Tribunal failed to correctly assess the applicant's claim in relation to the police claim of him “employing an LTTE member and contributing to the LTTE financially.” The terms of the applicant's claim and the integers thereof were clearly identified by the Tribunal and dealt with in its reasons. I find no ground for review in this regard.

Conclusion

In the circumstances I therefore allow the application.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: Melissa Gangemi

Date: 25 May 2006