MZWRH v Minister for Immigration
[2006] FMCA 607
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWRH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 607 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether non-compliance with s.424A of Migration Act – application dismissed. |
| Migration Act 1958, ss.417, 424A, 424(3)(a) |
| SAAP & Another v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | MZWRH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1191 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F.L. Krohn |
| Solicitors for the Applicant: | Barry B Moshel Solicitor |
| Counsel for the Respondents: | Mr S Hay |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $9,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1191 of 2004
| MZWRH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 24 July 2003. The application in this court was filed on 14 September 2004. The Applicant has relied upon two affidavits affirmed by him on
11 October 2005 and 25 November 2005. Those affidavits seek to explain the delay between the date of the Tribunal's decision and the filing of the application before this court.
In part, an explanation for the delay appears to be the Applicant's view that he should make application to the Minister pursuant to s.417 of the Migration Act 1958 (the Act). That application was made, and it would appear on the affidavit material that the Minister refused to intervene by decision made on 11 August 2004, when the Applicant thereafter claims he sought advice in relation to other options and ultimately as indicated earlier in this judgment filed the application before this court on 14 September 2004.
When the matter was listed before this court on 11 October 2004 the Applicant, then represented, sought to rely upon a minute of proposed amended application. The court made orders on 11 October 2005 granting leave to the Applicant to file and serve an amended application in the form of the draft minute, and to further provide supplementary contentions, with the respondent likewise being provided with the opportunity to file supplementary contentions together with a supplementary court book. There is a separate issue concerning costs arising from those orders which does not need to be addressed at this time.
Before this court, both parties relied upon original contentions of fact and law, and in accordance with the orders made on 11 October 2005 filed and served supplementary contentions of fact and law. The supplementary court book, which has now been filed, contains a transcript of the Tribunal proceedings held on 13 June 2002.
The Applicant is a citizen of Lithuania. He arrived in Australia on
26 September 2000. He then departed Australia on 10 December 2000 and it appears travelled to New Caledonia. He returned to Australia on 17 December 2000. He then departed Australia on 16 March 2001 and returned to Lithuania. The Applicant then returned to Australia on
21 June 2001. On 22 February 2002 the Applicant lodged an application for a protection visa. On 23 May 2002 a delegate of the First Respondent refused to grant the Applicant a protection visa.
The Applicant then applied to the Tribunal for review of the delegate's decision, and the Tribunal in its decision dated 24 July 2003 affirmed the delegate's decision.
The applicant’s claim
The Applicant had claimed to fear persecution at the hands of criminals involved in people smuggling because in his claimed attempt to bring those involved to justice by use of Lithuanian media outlets. The Applicant claimed to have recorded an implicating conversation about the people smugglers activities between two people involved in those activities, one of whom was a politician.
In the Tribunal’s decision the following appears in relation to the Applicant’s claim at Court Book p.129:-
“The applicant claims he helped his friend P to address issues related to companies who sell Lithuanian girls in Asian and Arabic countries. The applicant claims in March 2001 he visited Lithuania and went to some media outlets to tell them about it. The applicant claims for the three months he was in his country he was beaten up by police and threatened with false charges. The applicant claims they let him go but he was warned in this regard.”
The Applicant gave evidence to the Tribunal on 13 June 2003. It is noted from the Tribunal decision that at the hearing the Applicant claimed he came to Australia to see the Olympic Games and that he had visited New Caledonia in December 2000 and returned to Australia to extend his visa. He claimed from December 2000 to March 2001 he looked at how rugby was played in Australia and sent recordings of the games back to Lithuania.
At the hearing the Tribunal asked the Applicant why he wanted to help his friend in relation to the issue of people smuggling when he returned to Lithuania in March 2001. The following appears in the Tribunal’s decision at Court Book p.130:-
“… The Tribunal asked the applicant why he wanted to help his friend in relation to this issue. The applicant claims he helped his friend by introducing his friend to a journalist. He claimed he had spoken to a journalist in August 2000 before coming to Australia and had given him specific names of people including a politician involved in trafficking. He claims when he returned to Lithuania he rang the journalist on 25 March 2001 and asked him why there were no reports in the media. He claimed on 26 March 2001 officials of the police department broke into his house , took all his videos and took him to the police department, detained him and beat him.”
In response to questions from the Tribunal the Applicant claimed that he recorded a conversation and hoped that by passing it on to the media the journalist would publish the article. The article was not published and the Tribunal in its decision at Court Book p.130 the following:-
“The Tribunal asked the applicant whether the journalist published the article. The applicant claimed he didn’t and when he returned from Australia he rang the journalist and asked why he hadn’t published the article.
The Tribunal asked the applicant why his claims that he had recordings of named people involved in people trafficking was not in his initial applications to the Department. The applicant claimed he told his agent this story and he didn’t know why the agent hadn’t included the information.
The Tribunal asked the applicant why he didn’t go to the police, the courts or the ombudsman with the information. He claimed he didn’t believe legal institutions on human rights organisations would help.”
The Applicant then referred to being detained by the police and the Tribunal referred to a medical certificate submitted to the Tribunal by the Applicant which did not indicate that the Applicant had been detained by the police. The Tribunal noted the Applicant claimed on his way home from the police he was stabbed in the stomach by two unknown people who told him he had to return the recordings. The Applicant claimed he was in hospital for one month. He was asked by the Tribunal if he had reported the incident to the police. He claimed before the Tribunal that he refused to take any action as he feared his life was in danger. The Tribunal also asked the Applicant why he did not reply to the Department when it wrote to him in April 2002 or submit any documentation. According to the Tribunal’s reasons the Applicant claimed his migration agent did not tell him to provide additional information. The following then appears at p.131 of the Court Book in the Tribunal’s reasons:-
“The Tribunal put to the applicant that he returned to Australia in June 2001 and claimed he was fearful but he didn’t apply for a protection visa until February 2002. The applicant claimed he hoped that the information would be published and the people would be punished.
The Tribunal put to the applicant the independent information that indicates that the Lithuanian authorities do not facilitate or condone people trafficking. …”
The tribunal’s findings
In this case given the issues raised in the Application, it is appropriate to set out in detail the Tribunal’s findings. Both parties made reference to the findings and it is noted that the Court also had the advantage of a Supplementary Court Book which was a transcript of the proceedings before the Tribunal.
The Tribunal’s findings are as follows:-
“In his initial application to the Department the applicant claimed he helped his friend P to address issues related to companies who sell Lithuanian girls in Asian and Arabic countries. He claimed in March 2001 he visited Lithuania and went to some media outlets to tell them about it. The applicant claims for the three months he was in Lithuanian he was beaten up by police and threatened with false charges.
On 15 April 2002 the department wrote to the applicant providing him with country information and comments and asking him to respond to the information and to submit any relevant documentation. The applicant did not respond to the information or submit any documentation.
At the hearing the applicant provided to the Tribunal a completely different story. He claimed in August 2000 (before he came to Australia) while working as a security guard for an owner of a travel company he recorded a conversation between this man and a member of parliament. He claimed the conversation was about a senior official of the police department who was responsible for providing false documentation for Lithuanian girls. He claimed he gave the recording to the journalist in August 2000 because he hoped the journalist would write an article about these people who were involved in people trafficking and that they would be punished. He claimed when he returned to Lithuania he telephoned the journalist on 25 March 2001 and asked why he hadn’t published the information. The applicant claimed on 26 March 2001 the police broke into his house took all his videos, took him to the police station, beat him and detained him for a week. He claims he received a summons to attend an interrogation at the police station on 10 April 2001. He claimed a police officer apologised for the actions of the police and then asked him where he kept the copy of his recording. The applicant claimed he had no copy of the recording as he had given the original to the journalist. He claimed on his way home from the interrogation two “unknown persons” stabbed him in the stomach. He claims the government of Lithuania is unable to protect people who expose people traffickers. He also claimed the government wouldn’t act against senior police or politicians involved in people trafficking.
The Tribunal did not find the applicant to be a truthful or credible witness. The Tribunal does not accept the applicant’s claims at the hearing that he made a recording of a conversation between a tourist operator and a corrupt politician who were involved in people trafficking which he gave to a journalist in August 2000. The Tribunal does not accept the applicant’s claims at the hearing that he was detained and beaten by police or that he was stabbed because he had given to a journalist a recording naming people involved in people trafficking.
The claims the applicant made at the hearing were significantly different to the claims he made in his initial application to the Department. In his initial application to the Department the applicant did not refer to the fact he had made any recording of people involved in people trafficking or that he had approached a journalist with the names of these people before he came to Australia. When the Tribunal asked the applicant why he had not referred to this story in his initial application to the Department the applicant said he had told his agent the story and his agent hadn’t included the information. The Tribunal does not accept the applicant’s explanation. The Tribunal finds the changes to the applicant’s story as the hearing were made in order to bolster his claims to refugee status.
When the Tribunal asked the applicant why he had not responded to the Department or submitted documentation in April 202 when invited to do so the applicant claimed his agent hadn’t told him to provide this information. The Tribunal finds the applicant’s failure to respond to the Department and to submit documentation further indicate that his claims at the hearing were not genuine.
The applicant claimed when he was in Lithuania he did not report the fact that he was stabbed by “unknown persons” because he feared his life was in danger. The independent information before the Tribunal indicates that there are a number of domestic and international human rights groups in Lithuania which operate without government restriction. There are also three ombudsman institutions. There also have been a number of anti-trafficking publicity campaigns, carried out by Government, NGOs, the media, and by the local bureau of the International Organization for Migration. The Tribunal finds the fact that the applicant did not report the fact that he was stabbed to lawyers, the courts, the ombudsman or to the numerous human rights groups that operate in Lithuania indicate that his claim that he was harmed by people involved in people trafficking are not genuine.
Prior to the hearing the applicant submitted copies of documents he claimed were from the Ministry of Health. One of the documents was undated and stated the applicant was brought to the hospital with a broken nose and two teeth dislodged. The other document dated 10 April 2001 stated the applicant brought to the hospital with a punctured gut. There is nothing on the face of the documents to indicate who assaulted the applicant or that the assaults were a result of him exposing those involved in people trafficking. The Tribunal accepts that the applicant may have been taken to hospital with a broken nose and punctured gut. However given the independent evidence which is referred to below and the Tribunals findings as to the applicant’s overall credibility the Tribunal is unable to be satisfied that the injuries the applicant suffered were a result of him exposing people traffickers.
The applicant submitted copies of two documents he claimed were ‘summons”. One of the summons requested him to arrive at the Interrogation Section of the Police Commissariat of Santakos District on 10 Apri1 2001. The summons does not on the face of it provide any indication as to why the applicant was required for interrogation. The other summons requested him to arrive at the Interrogation Section of the Police Commissariat of Santakos District on 20 March 2003. As well as not providing any indication as to why the applicant was required for interrogation the Tribunal finds it implausible that the police would “summons” the applicant for questioning in March 2003 two and a half years after he claims he disclosed information about a corrupt politician and a corrupt police officer. The Tribunal places no weight on these documents.
The applicant claims that the government of Lithuania would not bring criminal charges against corrupt police or a corrupt politician involved in people trafficking. The Tribunal finds this claim is not supported by the independent information.
The law criminalizes trafficking in persons for purposes of sexual abuse: The penalty is 4 to 8 years’ imprisonment. The penalty is increased from 6 to 12 years if the crime was repeated, premeditated, and committed by a dangerous criminal or against juveniles. The Lithuanian government has also amended the Criminal code to allow for more effective prosecution of trafficking cases. The independent information indicates that since 1998 there has been an increase in prosecution against those involved in people trafficking including prosecutions against corrupt police. More than 20 legal proceedings on trafficking in women were initiated in Lithuania in 2002 compared with almost no legal action at all in 1998.”
The Tribunal then referred to country information and relevantly stated in relation to the Applicant’s claim that the government of Lithuania would be unable to protect him the following:-
“The applicant claimed the government of Lithuania would be unable to protect him.
The independent information before the Tribunal indicates that the Lithuanian government has acknowledged the seriousness of the problem of trafficking in human beings in Lithuania and had been prepared to implement specialised programmes and amended legislation to control and prevent the problem. In January the parliament approved a Program on the Control and Prevention of Trafficking in Humans and Prostitution for 2002-2005. The program focussed on the causes of human trafficking, on preventive measures and on fighting organized crime groups. In his speech to the EU/IOM European Conference Mr Vytenis Povilas Andriukaitis, Deputy Chairman of the Seimas (Lithuanian legislature) of the Republic of Lithuania described the specialised programme in some detail.
‘The objectives of the programme are the following: to fully eradicate causes and conditions leading to the trafficking in human beings and prostitution; to develop an effective system of preventive measures; to destroy networks of criminal groups dealing with prostitution and organising trafficking in human beings; to consolidate efforts of public organisations and NGOs in preventing trafficking in people. The programme covers a package of educational, social-economic, medical, legal, scientific, information-related, financial and other measures on the national and international level. The implementation of the programme is co-ordinated by the Ministry of the Interior.’
Although there are no specific government assistance programs for victims of trafficking; the police offered protection for witnesses. Moreover government agencies and NGOs have encouraged victims to file civil suits or to seek legal action against traffickers.
There is no independent information before the Tribunal to suggest that the authorities in Lithuania condone or encourage people trafficking. Given the government’s commitment to developing an effective system of preventive measures to destroy networks of criminal groups involved in organising trafficking in human beings and given that the Lithuanian government has amended the Criminal code to allow for more effective prosecution of trafficking cases which has resulted in an increased number of cases being initiated against those involved in people trafficking the Tribunal is satisfied that the authorities would be able to provide affective protection to an individual who exposed corrupt police or even a corrupt politician involved in people trafficking.
The applicant returned to Australia in June 2002 and did not apply for a protection visa until February 2002. When the Tribunal asked the applicant why he delayed applying for a protection visa he claimed he hoped the article would be published and that the people would be punished. The Tribunal finds the fact that the applicant delayed applying for a protection visa until February 2002 further indicates that his claims are not genuine.”
It should be noted in that extract that the date “June 2002” should be “June 2001”.
Jurisdictional error
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
The amended application
The Amended Application filed on 10 October 2005 now before this court sets out the grounds in support of the claim for relief, and specifically includes the following:
(1) The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal acted in breach of its obligations under the law.
Particulars
The Tribunal acted in breach of its obligations pursuant to section 424A of the Migration Act 1958 in failing to provide to the Applicant particulars of information, failing to take steps to ensure that the Applicant understood the relevance of the information, or failing to provide an opportunity for the Applicant to comment upon the information in relation to :-
(a) his initial claims to the respondent's department and his claims to the Tribunal;
(b) 'independent evidence' and the Applicant's claims that medical records provided by him to the Tribunal supported his claim that he had been assaulted 'as a result of him exposing people traffickers';
(c) information the Tribunal had concerning summonses submitted by the Applicant as evidence of his claims.
(2) The Tribunal fell into jurisdictional error in that it denied natural justice or procedural fairness to the Applicant.
Particulars
The Applicant refers to and repeats the particulars to ground 1 herein.
(3) The decision was affected by jurisdictional error, in that it was based upon findings not open on the evidence before the Tribunal.
Particulars
The decision was based in part upon the following findings, but there was no evidence before the Tribunal upon which those findings could be based:-
(a) 'The Tribunal finds that the fact that the Applicant did not report the fact that he was stabbed to lawyers, the ombudsman or to the numerous human rights groups that operated in Lithuania, indicate that his claim that he was harmed by people involved in people trafficking are not genuine';
(b) 'Given the government's commitment to developing an effective system of preventative measures to destroy networks of criminal groups involved in organising trafficking in human beings, and given that the Lithuanian government has amended the criminal code... the Tribunal is satisfied that the authorities would be able to provide affective (sic) protection to an individual who exposed corrupt police or even a corrupt politician involved in people trafficking';
(c) the Tribunal's findings in relation to the medical reports;
(d) the Tribunal's findings in relation to the summonses.
(4) The Tribunal fell into jurisdictional error or the decision was affected by jurisdictional error in that the Tribunal failed to consider relevant material or questions.
Particulars
The Tribunal made no finding rejecting the Applicant's concern about trafficking in human beings in Lithuania, and failed to consider the consequences for the Applicant were he to return to Lithuania and take action in that country to oppose human trafficking.
It seems clear to me that in this application, although four grounds were referred to as set out in the previous passage, essentially there are three issues to be agitated. The primary issue relates to an alleged breach of s.424A of the Act. The further issues raised concern findings not open on the evidence wherein it is claimed there was no evidence upon which the findings could be based and failure to consider relevant material or questions.
The suggestion that findings were made which were not open on the evidence and thereby causing the decision to be affected by jurisdictional error, appears to be confined to the specific findings by the Tribunal set out in paragraph (3) of the grounds. Ground (4) in my view would clearly appear to have little foundation, and to a large extent is superfluous in the event that the application were to succeed in this application in establishing jurisdictional error. Likewise, if the Applicant establishes jurisdictional error there is no need for the court to consider any issue concerning the application being out of time.
In any event, ground (4) in my view is a ground which presupposes that the Tribunal was equivocal in its findings concerning the Applicant being involved in reporting the trafficking of human beings in Lithuania. That assumption cannot be valid in the light of the Tribunal's findings, and rather in my view it seems logical that the Applicant in the primary attack on the Tribunal's decision needs to rely upon a breach of s.424 of the Act together with the associated denial of natural justice, and perhaps in the alternative the argument that findings had been made not open on the evidence and this is sufficient to constitute jurisdictional error.
Breach of s.424A
In considering the issue of a breach of s.424A of the Act, both parties relied upon the decision of the High Court of Australia in SAAP & Another v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. In particular, reference was made to a number of paragraphs in the decision of the High Court, commencing with paragraph 77 from the judgment of McHugh J where His Honour states:-
“[77] However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the Applicant for review, before recording a decision, it would be an anomalous result if the Tribunal’s decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the Applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the Applicant written particulars of adverse information (for example, if the Applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the Applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.”
The decision of McHugh J in the above mentioned paragraph would appear to have been supported by other decisions in SAAP, including the decision of Kirby J at paragraph 173, where his Honour states:-
“[173] Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A (“must”) and the provisions of Pt 7, Div 4, I agree with Hayne J129 that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the tribunal has not been complied with. The will of the parliament must be obeyed. The resulting decision of the tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court.”
Further, it is noted that in the judgment of Hayne J, his Honour states at paragraph 204 the following:-
“[204] If a valid application is made under s 412 of the Act for review of a decision of a kind identified in s 411, the Tribunal “must review the decision”.150 A decision to refuse to grant a protection visa is one kind of decision mentioned in s 411. Division 3 of Pt 7 of the Act (ss 420–422A) makes provision for the exercise of the Tribunal’s powers and, as has already been seen, Div 4 regulates the conduct of the review. Division 5 (ss 430–431) makes a number of provisions about the Tribunal’s decisions – how they are to be recorded (s 430), handed down (ss 430A–430D) and published (s 431).”
The court further notes in the judgment of Hayne J relevantly the following statement:-
“[208] Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the Applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that Applicant, is not to the point. The Act prescribes what is to be done in every case.”
The court is further assisted in this application on the consideration of a claimed breach of s.424A of the Act, by the helpful summary of the relevant principles of law to be applied, set out in the decision of Allsop J in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 (SZECF). It is noted that his Honour in that case considered an appeal from a decision of the Federal Magistrates Court, and accordingly it is clear that this court is bound by that decision.
In his helpful analysis of the relevant principles, following the High Court decision in SAAP, Allsop J further considers the issues which have arisen for the consideration of the courts from the case of Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27. The combined effect of that decision and SAAP led Allsop J to set out the following principles in his judgment:-
“14 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 a majority of the High Court said that any failure whatever to comply with s 424AA of the Migration Act 1958 (Cth) (irrespective of any conclusion one could reach from the surrounding circumstances that the applicant had been accorded substantive procedural fairness) amounted to jurisdictional error vitiating the decision.
15 SAAP must be read together with Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was held that the reference in s 424A (3)(b) to the information "that the applicant gave for the purposes of the application" was a reference to the information given by the "applicant" for the purpose of the "application" for review: that is, to the Tribunal. Thus s 424A(3)(b) does not encompass information provided to the Department or the delegate by the person who subsequently becomes the applicant to the Tribunal for review.”
The court has been particularly assisted by paragraph 18 of Allsop J's decision in SZECF, where his Honour states as follows in identifying three considerations which arise in determining whether a Tribunal has complied with s. 424A as follows:-
“18 Three considerations arise:
(a) whether there is "any information" for the purposes of s424A(1)(a);
(b) if so, whether it can be said to be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review; and
(c) whether in the light of any questioning about the earlier statement the information can be said to have been given for the purpose of the Tribunal review application.”
In considering the issue of a breach of s.424A of the Act, it is appropriate to apply and follow the decision of the High Court in SAAP, and the principles set out by Allsop J in SZECF. It is noted that after the hearing of this matter the Full Court delivered a decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. In that case the Full Court discussed and applied the decision of Allsop J in SZECF.
The applicant’s submissions
In the present case the Applicant has submitted that the Tribunal, in making its decision, had relied upon in part a discrepancy that it perceived between the Applicant's claims before the First Respondent and the claims before the Tribunal. It is relevant in understanding this submission on behalf of the Applicant, to note in some detail the Tribunal decision and in particular the following passages which appear under the heading, "Findings and Reasons":-
“In his initial application to the department, the Applicant claimed he helped his friend, P to address issues related to companies who sell Lithuanian girls in Asian and Arabic countries. He claimed in March 2001 he visited Lithuania and went on some media outlets to tell them about it. The Applicant claims for the three months he was in Lithuania he was beaten up by police and threatened with false charges.
On 15 April 2002 the department wrote to the Applicant, providing him with country information and comments, and asking him to respond to the information and to submit any relevant documentation. The Applicant did not respond to the information or submit any documentation.
At the hearing the Applicant provided to the Tribunal a completely different story. He claimed in August 2000 (before he came to Australia) while working as a security guard for an owner of a travel company, he recorded a conversation between this man and a member of parliament. He claimed the conversation was about a senior official of the police department who was responsible for providing false documentation for Lithuanian girls. He claimed he gave the recording to the journalist in August 2000 because he hoped the journalist would write an article about these people who were involved in people trafficking, and that they would be punished.
He claimed when he returned to Lithuania he telephoned the journalist on 25 March 2001 and asked why he hadn't published the information. The Applicant claimed on 26 March 2001 the police broke into his house, took all his videos, took him to the police station, beat him and detained him for a week. He claims he received a summons to attend an interrogation at the police station on 10 April 2001. He claimed a police officer apologised for the actions of the police and then asked him where he kept the copy of his recording. The Applicant claimed he had no copy of the recording as he had given the original to the journalist.
He claimed on his way home from the interrogation two 'unknown persons' stabbed him in the stomach. He claims the government of Lithuania is unable to protect people who expose people traffickers. He also claimed the government wouldn't act against senior police or politicians involved in people trafficking.
The Tribunal did not find the Applicant to be a truthful or credible witness. The Tribunal does not accept the Applicant's claims at the hearing that he made a recording of the conversation between a tourist operator and a corrupt politician who were involved in people trafficking, which he gave to a journalist in August 2000. The Tribunal does not accept the Applicant's claims at the hearing that he was detained and beaten by police, or that he was stabbed because he had given to a journalist a recording naming people involved in people trafficking.
The claims the Applicant made at the hearing were significantly different to the claims he made in his initial application to the department. In his initial application to the department, the Applicant did not refer to the fact that he had made any recording of people involved in people trafficking, or that he had approached a journalist with the names of these people before he came to Australia.
When the Tribunal asked the Applicant why he had not referred to this story in his initial application to the department, the Applicant said he had told his agent the story and his agent hadn't included the information. The Tribunal does not accept the Applicant's explanation. The Tribunal finds that the changes to the Applicant's story as (sic) the hearing were made in order to bolster his claims to refugee status.
When the Tribunal asked the Applicant why he had not responded to the department or submitted documentation in April 202 (sic) when invited to do so, the Applicant claimed his agent hadn't told him to provide this information. The Tribunal finds the Applicant's failure to respond to the department and to submit documentation further indicate that his claims at the hearing were not genuine.”
The Applicant submitted, relying upon the authority of Al Shamry, that in this instance the Tribunal was using information namely, the Applicant's claims to the First Respondent's department which it is argued could not be regarded as information given pursuant to s.424A(3)(b) of the Act. In those circumstances it is argued the Tribunal was obliged to give in writing particulars of the different information the Applicant had given to the department. It was obliged but failed to explain to the Applicant why the information given to the department was relevant to the review before the Tribunal, and to invite the Applicant to comment upon it. It is claimed that failure was a jurisdictional error in accordance with the principles set down by the High Court in SAAP.
It was further submitted for and on behalf of the Applicant that although a proper analysis of the transcript reveals that the Tribunal put to the Applicant the question of why he had not put in his initial application the claim that he made an audio recording of corrupt politicians, that that exchange is not sufficient in the circumstances to detract from the significance of the breach of s.424A of the Act.
It was submitted that at the hearing before the Tribunal, where the Applicant was not represented, he did not have a sufficient opportunity to consider and give more complete and considered answers to the difficulties raised by the Tribunal. Had the Applicant been given the information in writing from the Tribunal then he may have considered further answers over and above the answer that he had given the information to his agent. For example, it was submitted, he may have sought evidence from his former agent or from the agent's files and notes of instructions.
During the course of submissions reference was made to extracts from the transcript. I accept for the present purposes that the relevant issue was clearly agitated between the Tribunal and the Applicant, at least to the extent that the Applicant would have been aware of the inconsistency ultimately referred to in the Tribunal's decision. The Applicant submits from the transcript exchanges, that the concerns the Tribunal had about the case were raised for the first time, and it is argued those matters took the Applicant by surprise. Specific reference was made to the transcript where the Applicant clearly states on a number of occasions some difficulty understanding the question which related both to the journalist to whom he has passed on the story and questions concerning the recording of conversations (see transcript pp.7, 8 and 10). Reference was made to the issue of the timing of lodging some documents and the response of the Applicant that they were not lodged earlier because he did not know “that the documents I have will not be enough to support my claims” (transcript p.22).
It is argued that in this case, the transcript demonstrates the reason why Parliament prescribed and commanded that a response to adverse information to s.424A of the Act should be made following a written invitation. The failure of the Tribunal to provide particulars of adverse information in this case, it is argued, constitutes both a breach of s.424A of the Act and accordingly a jurisdictional error.
Reference was made to the independent evidence and medical reports together with the information the Tribunal had concerning summonses submitted by the Applicant as evidence of his claims. Rejection of the medical reports as corroboration because of the Tribunal’s view of “independent evidence” is contrary to the Applicant’s claim and was submitted to be another aspect of failure by the Tribunal to comply with s.424A. It was submitted that although at the hearing the issue of the Applicant’s injuries and medical reports was raised there was not an opportunity for the Applicant to consider the difficulty raised by the Tribunal that these injuries could have occurred in any way. No opportunity was given for the Applicant to consider and be advised as to whether to seek and obtain expert evidence concerning the likelihood that he could accidentally have suffered the injuries which he did, particularly the stab wound. It was at least possible that expert evidence would have been able to show that some of the injuries suffered by the Applicant must have been inflicted deliberately. That would then go some way to answer the Tribunal’s concern that the first medical report “doesn’t really help because this could have happened anywhere” (transcript p.14).
The information about the standard form of summonses in Lithuania was the subject of comment by the Tribunal in its reasons set out above. It was submitted the Tribunal did not put these matters of the content of the summonses or the standard form of procedures in relation to the summonses to the Applicant for comment. It did not do so in writing as required by s.424A. If the Applicant had an opportunity to respond he could have sought evidence about standard procedures in Lithuania relating to the summonses. Again, jurisdictional error is claimed to have occurred.
It was submitted for the Applicant that the denial of natural justice point which arose from the claimed breach of s.424A occurred in circumstances where the unrepresented Applicant, albeit assisted by an interpreter, was taken by surprise by the matters raised at the hearing by the Tribunal and the combination of these matters established that the Applicant was not given a fair opportunity to consider and reply to the matters raised by the Tribunal ultimately found to be adverse to his case.
The first respondent’s submissions
The First Respondent has submitted in this case that the steps to be followed are those set out in the judgment of Allsop J in SZECF; and, as I understand the submissions brought on behalf of the respondent, it is not now sought to be argued that, of the three considerations for determination in relation to an issue arising out of an alleged breach of s.424A, that this material should not be regarded as 'information', and that the earlier statement to the First Respondent's delegate to the Applicant does amount to information (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24] and SZECF at [20]).
It was argued, however, that the second matter as to whether or not it could be said that the information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review- is claimed to be more complex. Reference was made again to the decision of Allsop J in SZECF and in particular paragraphs 24 and 25, where in that case the court states the following:-
“24 The task is to analyse the reasons given by the Tribunal for its lack of satisfaction as to the lack of Australia’s protection obligations and assess whether the reason or a part of the reason for that conclusion can be said to be the relevant information; recognising that subjective appraisal and thought processes are not information, though they may be reflective of why the information is relevant to the review. In Paul, Mr Knight’s evidence of a fact (the date of death of his brother-in-law, in 1986) was so contradictory to, and destructive of, the Applicant’s case, which had the death in 1995, that it could be said that the information was part of the reason for rejecting the Applicant’s claims. The information was not merely part of the material used as a whole by the Tribunal to assess the reliability of the Applicant’s evidence. In such cases, it may be that looking at the reasons one can only say that the reason for the decision was the lack of belief in the credibility of the Applicant and that the information itself is not part of the reason.
25 Minds might differ about questions such as these. This will be so because, after analysis of the expressed reasons of the Tribunal, one must assess or characterize the importance of the information itself to the reasoning process of the Tribunal apparently underlying its conclusion as to lack of satisfaction. That this process may be seen to be judgmental is illustrated by the approach of Finn J and Stone J in VAF. Having analysed the Tribunal’s reasons, their Honours concluded as follows at [41-[43].
Considered in the context of the Tribunal’s reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).
The Tribunal explicitly recognised it had s 424A obligations, giving in its reasons an instance where information was in consequence provided to the appellant. Given this, and given the care with which it put important issues to the appellant (for example in relation to the FIR), we consider that the Tribunal itself has given some indication of the relative importance of the information relating to his behaviour. It did not reach the s424A (1)(a) threshold.
The reason the appellant’s application was rejected related to the Tribunal’s non-acceptance of what the appellant alleged occurred in Pakistan. It did not relate to his conduct in Australia. The significance of the Australian behaviour such as it was, was that it was consistent in its own way with, and thus confirmatory of, a conclusion taken for other reasons. It was not, for s424A purposes, a part of the reason for that conclusion.
[emphasis added]”
It was submitted on behalf of the First Respondent that the present case falls within the latter category considered by Allsop J in SZECF: namely, that the 'information' contained in the Applicant's earlier statement was merely part of the material used as a whole by the Tribunal to assess the reliability of the Applicant's evidence, and the reasons for the Tribunal's decision was the lack of belief in the credibility of the Applicant, so that that information itself was not part of the reason.
When dealing with the independent evidence and medical evidence which again was the subject of the Tribunal’s findings set out above, it was submitted that the “independent evidence” referred to was used by the Tribunal simply to assess the inherent likelihood the Applicant’s claim about his punctured stomach. It formed part of the reasoning process and was therefore not required to be put to the Applicant. That argument it was submitted is strengthened by the Tribunal’s comment that the “independent evidence” was matched against the Applicant’s “overall credibility”. In the alternative, it was argued that the “independent evidence” referred to was on any view not specifically about the Applicant and therefore it did not have to be put to the Applicant and s.424A(3)(a) of the Act applies.
In relation to the issue of the summonses the First Respondent submitted that there is no reference to “information” that led the Tribunal to “place no weight” on the summonses. One reference to implausibility referred to the Applicant receiving the summonses two and half years after he disclosed sensitive information which subsequently put him at risk. It was submitted this is clearly part of the Tribunal’s reasoning. There was no information put to the Applicant.
Reasoning
In my view it is clear on a proper analysis of the material and the relevant authorities that in this case the court is required to consider the Tribunal's decision and to determine whether or not it could properly be said that the information was part of the reasons for rejecting the Applicant's claim. I accept that the information only has to be part of those reasons; and further, I would need to be satisfied conversely that the information was not merely part of material used as a whole by the Tribunal to assess the reliability of the Applicant's evidence.
As Allsop J states, it is clear that "minds might differ about questions such as these". It is appropriate for the court to look at the reasons. In some instances, one might conclude readily that the reason for the decision was a lack of belief in the credibility of the Applicant, and the information itself is not part of the reason. So much is urged upon the court by the First Respondent's submissions.
The reasons which have been set out fully in this judgment in my view demonstrate as submitted by the First Respondent that the present case falls within the latter category considered by Allsop J in SZECF, namely that the information contained in the Applicant’s earlier statement was merely part of the material used as a whole by the Tribunal to assess the reliability of the Applicant’s evidence. It is clear from the extract that the Tribunal whilst considering what it described as a completely different story provided to it by the Applicant significantly found the Applicant not to be a truthful or credible witness. It did not accept his evidence concerning the recording of conversations nor did it accept claims made at the hearing that the Applicant was detained and beaten by police or stabbed because he had given a journalist a recording. These are significant adverse independent findings. In my view the information referred to by the Applicant was used in the present case as simply part of material used as a whole by the Tribunal in assessing the reliability of the Applicant’s evidence. I do not regard it as being information which could properly be regarded as part of the reasons.
I accept the submissions made by the First Respondent in relation to the questions raised by the Applicant concerning independent evidence, medical evidence and the summonses. That material simply formed part of the reasoning process and I do not accept that any of that material could be properly regarded as “information” for the purpose of s.424A.
For the reasons given it is my view that there has not been a breach of s.424A. I am not satisfied there has otherwise been a denial of natural justice. The material relied upon by the Tribunal which led to an adverse credibility finding was material readily known to the Applicant and formed part of the reasoning process available to the Tribunal free of jurisdictional error.
It follows for the reasons given that the application should be dismissed and the Applicant shall pay the First Respondent’s costs including reserved costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 April 2006
0
19
1