MZXFQ v Minister for Immigration - [2006] FMCA 1587

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXFQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1587

MIGRATION – Judicial review of Refugee Review Tribunal decision – section 424A of Migration Act 1958 – application dismissed.

Migration Act 1958 (Cth)

SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 215 ALR 162
SZEEU v the Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) FCAFC 2
Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27
SZEFM v the Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) FCA 78
VAF v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZCKD v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 451

Applicant:

MZXFQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1696 of 2005

Judgment of:

Hartnett FM

Hearing date:

2 June 2006

Delivered at:

Melbourne

Delivered on:

27 October 2006

REPRESENTATION

Counsel for the Applicant:

Mr Lewis

Solicitors for the Applicant:

Mallesons Stephen Jaques

Counsel for the First Respondent:

Mr Knowles

Solicitors for the First Respondent:

Phillips Fox

ORDERS

That the name of the first respondent be amended to the “Minister for Immigration and Multicultural Affairs”.
That the application be dismissed.
That the applicant pay the costs of the first respondent as agreed, and failing agreement as determined by the court upon application made by telephone mention to the chambers of Hartnett FM.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1696 of 2005

MZXFQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 22 December 2005 the applicant made application to this court for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 October 2005.
The applicant filed an amended application on the 5th day of April 2006 which provided proper particulars. In essence, the applicant argued that the Tribunal failed to comply with s.424A(1) and (2) of the Act. The applicant relied upon contentions of fact and law dated

17 May 2006
. The respondent also filed contentions of fact and law on 29 May 2006.
The applicant is a citizen of Sri Lanka who arrived in Australia on the 15th day of April 2005. On the 22nd day of April 2005 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was) (the Department) an application for a protection (class XA) visa.
With that visa application the applicant lodged a document entitled "Statement of claims in respect of my application for protection (class XA) visa". In that statement the applicant set out his claims to be a refugee. The applicant claimed that due to his political opinion he faced a real chance of harm at the hands of his political opponents should he return to Sri Lanka in the reasonably foreseeable future.

He claimed that Sri Lankan authorities would not afford him effective State protection.
His initial statement included the following passage:
... I was heavily involved with the activities carried out by "Youngest Welfare Association" in my village. Due to my services to the above organisation, in 2003 I was elected as the president of the above organisation.
By decision dated 28 June 2005 a delegate of the first respondent refused to grant the applicant a protection visa. Thereafter and on 19 July 2005 the applicant lodged with the Tribunal an application for review of the delegate's decision.
On 10 October 2005 the applicant lodged with the Tribunal a five-page statutory declaration in support of his application. In that statutory declaration the applicant relevantly stated that:
(1) All the information in my previous statement remains correct and true. I am writing this updated statement to include extra details.
(2) Although the main points in this statement are consistent with those in my first statement, I have included more detail in this statement. I wrote my first statement in Tamil, having had no direction as to what was required of me. My previous lawyers had my statement interpreted and included what they thought was appropriate. My second statement was taken verbally. The Asylum Seeker Resource Centre advised me of the kind of details that were necessary and asked me many questions, and as a result I gave more details than I had previously.
……….
(11) I was involved in the Youngest Welfare Association (YWA). I felt this was a good thing, to be around the youth of my country and encourage them to follow the UNP. I was elected President of the Association in 2003. This role enabled me to liaise with many wealthy people would provide funding for the group. The Youngest Welfare Association was involved in social work. We cleaned the shrine so that people could pray, we collected money for to help buy machines for windows so that they could start a business, we helped children at school sit for scholarship exams and also helped children take part in sport activities. Eventually the Youngest Welfare Association became a supporter of the UNP. The Youngest Welfare Association would distribute UNP leaflets.
This followed the applicant's claim as contained in his original statement of claims in respect of his application, which was as follows:
After leaving school in 1989, in 1990 I joined "Teletech" ...
While I was working at Teletech, I was involved in many religious and social activities in my area. Further, I was heavily involved with the activities carried out by “Youngest Welfare Association” in my village. Due to my services to the above organisation, in 2003 I was elected as the president of the above organisation.
On 25 October 2005 the Tribunal conducted a hearing. The applicant gave evidence at that hearing with the assistance of an interpreter.

On 22 November 2005 the Tribunal handed down its decision dated 31 October 2005, affirming the delegate's decision to refuse to grant the applicant a protection visa.
In its reasons for decision the Tribunal recorded that the following exchange occurred at the outset of the hearing:
The Tribunal asked the applicant whether he wanted to amend any part(s) of the "statement of claims" provided to DIMIA or the statutory declaration of 10 October 2005 provided to the Tribunal, and the applicant confirmed that he did not wish to make any changes to the documents.
In his oral evidence at the hearing the applicant twice stated that he was elected deputy president of the Youngest Welfare Association (YWA) in 2003. The Tribunal told the applicant that it regarded this evidence to be inconsistent with his previous written statements that he had been elected to the position of president in 2003. This goes to one of the arguments put by the applicant.
The second is that whilst the matter was before the Tribunal, the applicant applied for assistance pursuant to the Asylum Seeker Assistance Scheme. On 10 August 2005 the Australian Red Cross lodged with the Department a request on behalf of the applicant for exemption from the ASA eligibility criteria.
In support of that request the Australian Red Cross submitted a letter from a Ms Therese Meehan of the Victorian Foundation for Survivors of Torture Inc. In that letter Ms Meehan was described as a “Counsellor Advocate” albeit there was no description of her qualifications contained in the letter.
The letter addressed the issue of the applicant's ability to find and maintain work. In it, Ms Meehan stated:
The above Sri Lankan man was referred to the Victorian Foundation for Survivors of Torture by Red Cross Victoria, for a psychological assessment. I interviewed him on 27/7/05 with a Tamil interpreter. He is experiencing a range of psychological symptoms that are having a significant effect on his daily life. He is suffering from chronic sleep disturbance; he is unable to go to sleep easily, he wakes very early, and the few hours of sleep he does get are broken by sudden unexplained periods of wakefulness. He also suffers from nightmares at least two or three times a week. He reports that the dreams are about the traumatic events he experienced in Sri Lanka, and they cause him to wake and feel extremely anxious. He finds it impossible to go back to sleep after one of these nightmares. His previous house mates reported that he frequently shouted in his sleep.
His daytime state is a little better, provided he can keep occupied, as he finds that when he spends time alone, his mind returns involuntarily to distressing thoughts and memories from the past. He finds that this increases his anxiety and sense of hopelessness, which in turn contributes to a poor night's sleep. He also experiences poor concentration, and bouts of tearfulness.
In my opinion, (the applicant) is not capable of finding or maintaining a job at present. His chronic tiredness, poor concentration, and general stress would contribute to a lack of safety both for himself and others.
In his amended application, the applicant asserts that the Tribunal committed a jurisdictional error in reaching its decision because it failed to act in accordance with the requirements of s.n 424A of the Act.
Section 424A relevantly states that:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) ...
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave, for the purpose of the application; or
(c) ...
The manner in which the Tribunal must provide to the applicant particulars of the relevant information is by way of written notification of the information and of the invitation to comment on it. A failure to comply with this obligation will normally constitute jurisdictional error because of the mandatory language of s.424A (SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 215 ALR 162 at 77-173 and 208).
Accordingly, a failure of the Tribunal to provide the applicant with particulars in writing of any information which it considers would be the reason or a part of the reason for affirming the decision under review and inviting the applicant's comments on it, constitutes a jurisdictional error.
The term "information" in sub-s.424A(1) refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal (SZEEU v the Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) FCAFC 2 at 205).
Section 424A only applies to information which the Tribunal itself considers would be the reason or a part of the reason for its decision to affirm the decision under review. It is necessary to thus analyse the Tribunal's reasons for its decision, as those reasons appear in the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (SZEEU v the Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) FCAFC 2 FCAFC 2 at 205-216).
In Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27, the Full Federal Court held that the information to which paragraph 424A(3)(b) refers is information given by an applicant to the Tribunal for the purpose of the application for review, and not information given on the original application for a protection visa (at paragraphs 17 and 35).
However, if an applicant provides information to a person other than the Tribunal but in the course of the review before the Tribunal adopts or republishes or otherwise gives that information to the Tribunal, s.424A will not apply to the adopted information due to the engagement of paragraph 424A(3)(b) (SZEFM v the Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) FCA 78 at (19).
The applicant submits that the Tribunal failed to comply with s.424A in the following respects:
a)the Tribunal relied upon the Counsellor Advocate's letter dated 28 July 2005, provided in support of the applicant's application for asylum seeker assistance and the fact that the Counsellor Advocate did not outline her qualifications, without providing written particulars to the applicant; and
b)the Tribunal relied upon the applicant's original statement of claims submitted in support of his protection visa application and his statement that he became the president of the Youngest Welfare Association and/or his failure to mention that he was elected deputy president, without providing written particulars to the applicant.

The Tribunal's Decision

The Tribunal determined that the applicant was not a credible witness. It based this adverse credibility finding on perceived inconsistencies in the applicant's evidence and his apparent lack of knowledge about the United National Party (UNP) of which he claimed to have been a member since 1994.
The Tribunal was not satisfied that the applicant had ever been a member of the YWA or the UNP, and was not satisfied that the applicant had suffered any harm as a result of his claimed involvement with these organisations.
The Tribunal therefore did not accept that if the applicant returned to Sri Lanka in the reasonably foreseeable future there was a real chance of the applicant suffering harm for a reason described in the Refugees Convention as amended by the Refugees Protocol.
In reaching its adverse credibility finding the Tribunal had regard to various matters, including the perceived inconsistencies in the applicant's evidence about his position in the YWA in 2003, the Tribunal saying:
Looking at the evidence as a whole, the Tribunal is satisfied that the inconsistencies between the applicant's oral testimony and written claims reflect poorly on his credibility.
In its reasons, the Tribunal referred to the first paragraph of the applicant's statutory declaration of 10 October 2005, in which the applicant stated that all information contained in his initial statement lodged with the Department remained correct and true. The Tribunal then stated that:
The Tribunal is satisfied that by making a clear reference to the Statement provided to DIMIA, the applicant is providing that Statement to the Tribunal for the purposes of the review and consequently it is information which the applicant has provided for the purpose of the application and as such falls within one of the exceptions enumerated in section 424A of the Act, namely s 424A(3)(b).
Otherwise, and in relation to the letter from Ms Meehan dated 28 July 2005 as referred to earlier in these reasons, the Tribunal stated that:
In reaching the adverse credibility finding, the Tribunal has given regard to the letter dated 28 July 2005 from Counsellor Advocate (folio 95) provided in support of the application for Asylum Seeker Assistance Scheme (ASAS). As put to the applicant at the hearing, given the fact that the Counsellor Advocate does not outline her skills and or qualifications, the Tribunal is not satisfied that she is qualified to provide the clinical opinions she had expressed in that letter. Accordingly, the Tribunal does not give that letter any weight. The applicant claimed that he was depressed but provided no clinical evidence in support. The Tribunal accepts as plausible that the applicant gets depressed, however, the Tribunal is satisfied that the applicant was capable of putting his case in full before the Tribunal. In essence, the Tribunal is satisfied that any depression suffered by the applicant did not adversely affect his ability to present his case in full before the Tribunal.
The applicant submits that the information contained in the Counsellor Advocate's report was information that was relevant to the applicant's protection visa claim. The applicant claimed it was information which potentially bolstered his claims in a number of ways. For instance, if it was accepted that he suffered from the range of psychological symptoms that were outlined in the report, then that was corroborative of his account of having been the victim of violence, harassment and persecution in the past.
Further, it was argued that if the Tribunal accepted that the applicant suffered from the psychological problems outlined in the report, it may also have been more willing to accept that any contradictions or differences in his story given at various stages of the review process were explicable because of his psychological difficulties.
The applicant claimed that the report and the Counsellor Advocate's failure to outline her qualifications was clearly a part of the Tribunal's reasons for its decision to affirm the delegate's decision to refuse the applicant's protection visa claim.
As that report was not given by the applicant for the purposes of the application to the Tribunal, it was argued that it was not caught by the exception in s.424A(3)(b). The applicant argued that the Tribunal did not provide the applicant with particulars of that information in writing and invite the applicant to comment, and by failing to so act it had committed a jurisdictional error.

Consideration

The question in relation to Ms Meehan's letter of 28 July 2005 is whether the Tribunal considered that it would be a part of the reason for its decision.
As to that correspondence, the Tribunal stated that it did not propose to take that evidence into account and it did not express a concluded opinion about the applicant's psychological condition. The Tribunal accepted that the applicant might suffer from depression but noted that the letter was not evidence of a clinical nature in support of the applicant's claims and his depression, if any, was not relevant to its determination of his claims.
Whilst the Tribunal said that it had regard to Ms Meehan's letter, it noted its determination that it could not give such communication any weight. It did not regard it as relevant to its reasons for affirming the decision under review.
The rejection by the Tribunal of the applicant's claims about past instances of Convention-related harm resulted from the Tribunal's finding that the applicant had never had any involvement with the UNP or the YWA. The Tribunal said:
In essence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm consequential to his alleged involvement in the Youngest Welfare Association or the UNP, as the Tribunal has not been satisfied that the applicant has had any involvement with those organisations.
I accept the submission of counsel for the first respondent that Ms Meehan's letter and its contents were not information which the Tribunal considered was a part of the reason for the decision and further that the Tribunal's subjective assessment of the relevance of that evidence did not attract the operation of s.424A (VAF v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 24).

The applicant's initial statement lodged with the Department

In reaching its adverse assessment of the applicant's credibility, the Tribunal did rely on inconsistencies between the evidence given by the applicant orally at the Tribunal hearing and that given by him in his previous written statements both to the Department and to the Tribunal.
One of the inconsistencies related to what office the applicant was elected to in the YWA in 2003. The "information" which the Tribunal considered relevant to its adverse credibility finding was the inconsistencies in the applicant's evidence as to this.
The Tribunal did consider that this information was a part of the reason for its adverse credibility finding and its decision to affirm the decision of the delegate. Accordingly, subject to the provisions of s.424A(3) of the Act, s.424A did apply to this information.
The Tribunal determined in the case of the applicant that as a result of the operation of para.424A(3)(b) of the Act, s.424A did not apply to the information as contained in the written statement to the Department and Tribunal.
The reason for the Tribunal's determination was that the applicant gave to the Tribunal his initial statement to the Department for the purpose of the review. The manner in which he did so was by the inclusion of such information in his statutory declaration of 10 October 2005, noting it to be correct and true, with the purpose of the statutory declaration being to update the initial statement to include extra details. The applicant's evidence at the hearing conducted before the Tribunal included confirmation that he wished to make no changes to the statement of claims provided to both DIMIA and that provided to the Tribunal.
I accept the submissions of counsel for the first respondent that not only did the applicant confirm in his oral evidence before the Tribunal the veracity of his initial statement lodged with the Department, but that he also without prompting from the Tribunal adopted the contents of his initial statement for the purpose of the Tribunal's review.

This occurred in his statutory declaration lodged with the Tribunal.
In that statutory declaration the applicant volunteered that all the information set out in his previous statement lodged with the Department remained true and correct, further stating that the information in his statutory declaration lodged with the Tribunal was consistent with that in his initial statement. In adopting this course of action, the applicant intended that the Tribunal should look at the earlier material provided to the Department.
A fair reading of the Tribunal's reasons demonstrates that the Tribunal relied on the applicant's adoption in his statutory declaration of the information previously provided to the Department in his initial statement. The Tribunal said at the outset of its reasons that referred to in paragraph 28 of these reasons.
In the decision of SZCKD v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 451 the court found references in a Tribunal decision to information contained in the "original application" and the "primary application" related to information contained in the appellant's statutory declaration lodged with the Department. Graham J held that:
As a result of the statutory declaration lodged with the Tribunal containing substantially identical information to that contained in the initial statutory declaration lodged with the department, the information in the initial statutory declaration had been given to the Tribunal for the purpose of the review (at 34).
As a result, his Honour found that section 424A did not apply, due to the existence of circumstances contemplated by para.424A(3)(b).
The same is applicable in the present case. The information to which the Tribunal referred was information derived from the applicant's statutory declaration lodged with the Tribunal, wherein the relevant information in relation to the office held by the applicant in the YWA in 2003 was substantially identical in the initial statement and the statutory declaration.
I accept the first respondent's submission that s.424A(3)(b) does operate in respect of the information contained in the applicant's initial statement about his election to the position of president in the YWA in 2003 and that accordingly s.424A did not apply to that information.
The Tribunal noted the most fundamental aspect of the applicant's claim related to his alleged membership of the UNP. He claimed that since 1994 he had been an active member of the party and had been actively involved during the 2004 elections. The Tribunal found it simply incredulous how little the applicant knew about the party.

The Tribunal concluded that the applicant's lack of knowledge was an objective measure raising serious doubts about his claims and reflecting poorly on his credibility.
The court finds no jurisdictional error attends the Tribunal reasons and the application is dismissed.

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

Associate: Andrea O’Halloran

Date: 27 October 2006