MZYCO v Minister for Immigration - [2009] FMCA 363

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYCO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 363

MIGRATION – Refugee Review Tribunal – s.424A – whether providing inaccurate information under s.424A is a jurisdictional error – matters of dispositive relevance to the Convention claims – matters going to credibility only – Article 1F.

Migration Act 1958 (Cth), s.424A

MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZJZB v Minister for Immigration and Citizenship [2008] FCA 1731

Applicant:

MZYCO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1354 of 2008

Judgment of:

Riley FM

Hearing date:

9 February 2009

Date of last submission:

9 February 2009

Delivered at:

Melbourne

Delivered on:

29 April 2009

REPRESENTATION

Counsel for the Applicant:

Anthony Krohn

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Marc Felman

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

The decision of the Refugee Review Tribunal handed down on 8 October 2008 is set aside.
The matter is remitted to the Refugee Review Tribunal for determination according to law.
The first respondent pay the applicant’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1354 of 2008

MZYCO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application to review a decision of the Refugee Review Tribunal which affirmed a decision not to grant the applicant a protection visa. The applicant is a Palestinian. He claimed that he had been forced to fight for Fatah when he lived in Lebanon in the 1970s. The applicant said that he moved to Jordan in about 1982. He said that he was then persecuted by the Jordanian authorities on account of his ethnicity and forced involvement with the Fatah movement. More recently, the applicant said that Hamas told him that if he did not join them he would be killed.
In long and detailed reasons for decision, the Tribunal concluded that the applicant's claims lacked credibility. The Tribunal found that the applicant had led an unremarkable life as a businessman in Jordan for many years and found that there was no real chance of the applicant suffering persecution if he returned to Jordan.

Ground 1: wrong information in the s 424A letter

The first ground of review in the amended application filed on

2 February 2008
is:
In seeking to comply with its obligations pursuant to s424A in inviting the applicant to comment on information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review it provided wrong and inaccurate information regarding the named source of the information (dot points 2 & 3 CB 249).
The dot points referred to in the amended application were part of a

s.424A letter. That letter contained a number of headings, including the heading, ‘Information received by the Department’. Dot point 2 at CB 249 is:
Information was received by the Department of Immigration from your step-son, [Named Person][1], on 25 February 2008 that you demanded that he pay you $100,000 and that that is why you came to Australia.
[1] The actual name of this person has been omitted from these reasons for decision to protect the privacy of the applicant.
Dot point 3 at CB 249 is:
Information was received by the Department of Immigration from a friend of your step-son that you were attempting to extort $30,000 from your step-son.
The applicant noted that s.424A(1) of the Migration Act 1958 (“the Act”) provides that:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
The applicant argued that the requirement to give “clear particulars” of the relevant information implied that the particulars given must be accurate and must not be misleading or wrong. The applicant said that the information given by the Tribunal in this case was misleading or wrong in that the source of the information was not the applicant's stepson and the applicant did not have a stepson. The applicant argued that to make a meaningful response to as serious an allegation as extortion, the correct source of the information had to be identified.
The Department of Immigration and Citizenship had received a letter from the Named Person which made various accusations against the applicant. The letter was sent by one section of the Department to another by facsimile. The fax cover sheet described the Named Person as the applicant’s step-son. It is not clear how the author of the fax cover sheet came to the view that the Named Person was the applicant's stepson. In his protection visa application, the applicant said he had six children from his current marriage and two children from a previous marriage.
In any event, the applicant denied in his response to the s.424A letter that he had a son or a stepson in Australia by the name of the Named Person. The applicant said he had a son in Australia who has a different name. The applicant went on to say that, on his arrival in Australia, he stayed with his son and daughter-in-law but they had numerous fights and his daughter-in-law clearly wanted him out of the house. The applicant denied that he had tried to obtain $100,000 or $30,000 from anyone. The applicant said that his son in Australia had sent him approximately $US70,000 in $US10,000 instalments over a six or seven month period to purchase items for the son to sell in his shop. The applicant said that his son had subsequently sent him approximately $US30,000 in two instalments in 2007 to purchase items for the son to sell in his shop. The applicant said that if he had been trying to extort money from his son or daughter-in-law he would have kept those funds. The applicant's response was prepared with the assistance of his migration agent who is also a lawyer.
At paragraph 91 of its reasons for decision, the Tribunal began its reasoning in relation to the s.424A letter. At paragraph 99 of its reasons for decision, the Tribunal said:
Under the heading “Information received by the Department” the Tribunal notes that it has not had an opportunity to test the allegations (the informant/s indicated that they did not want the Tribunal to disclose them to the applicant) and are vigorously denied by the applicant. In those circumstances the Tribunal does not attach any weight to that material.
That is, the information contained in dot point 2 and dot point 3 in the s.424A letter under the heading “Information received by the Department” was not ultimately the reason or a part of the reason for affirming the decision under review. However, a majority of the High Court said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] that the question of whether the Tribunal has complied with s 424A of the Act “does not … turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal’s published reasons’.” In MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483, Heerey J said at [22] that SZBYR impliedly overruled a substantial body of authority in the Federal Court and explained at [27] that SZBYR:
essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal.
Paragraph [17] of SZBYR was one of four points that the majority of the High Court made in response to the appellant’s arguments in that case. However, at [21], the High Court said that:
The short answer to all of these points is that, on the facts of this case, s.424A was not engaged at all: the relevant parts of the appellants’ statutory declaration were not “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
That was because the relevant parts of the statutory declaration, if believed, would have been a reason to set aside the decision under review. Accordingly, it might be thought that paragraph [17] of SZBYR was obiter, to the extent that it said that the Tribunal’s reasoning process was immaterial. It might also be thought that paragraph [17] of SZBYR does not sit well with the words “the tribunal considers” in “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”: s.424A(1)(a) of the Act.
However, MZXBQ specifically dealt with the question of whether the Tribunal not considering that certain information would be the reason or part of the reason for affirming the decision under review meant that s.424A was not engaged. Heerey J concluded at [30] that the correct approach was to ascertain whether the information, if true, would have been the reason or part of the reason for affirming the decision under review. Heerey J made it clear that the Tribunal’s actual thought processes in relation to the information were not relevant.
The question of the Tribunal disavowing reliance on the information in question did not specifically arise in SZBYR or MZXBQ. However, the reasoning in both cases implies that a disavowal of reliance on the information by the Tribunal is irrelevant.
In SZJZB v Minister for Immigration and Citizenship [2008] FCA 1731, Jagot J specifically considered Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, which considered a disavowal. Jagot J said, at [25], that VEAL was not an answer in SZJZB, as VEAL was decided before SZBYR, and, more importantly, the parties in VEAL effectively conceded that s.424A had no application in VEAL. Ultimately, Jagot J held that “disavowal of reliance on the information is itself potentially ambiguous rather than determinative of the issue given the terms of

s 424A.”
All in all, the authorities indicate that it is not to the point that the Tribunal did not ultimately rely on the information in question and in fact disavowed reliance on it. The question is whether the information would have been of dispositive relevance to the claims. Both parties to the present proceeding conducted their cases on the basis that paragraph [17] of SZBYR and MZXBQ state the applicable law, and that the Tribunal’s disavowal of reliance on the Named Person’s letter was no answer to the issues presently before the court.
As it happens, the Tribunal did in fact provide the information in question to the applicant. The issue is whether inaccuracies in the information provided to the applicant resulted in the Tribunal’s attempted compliance with s.424A being so inadequate that there was no compliance with s.424A at all.
At the outset, it must be noted that no admissible evidence was given in this proceeding to the effect that the information in the s.424A letter was inaccurate. The applicant’s affidavit in support of the application did not address that issue at all. He adduced no other evidence. The applicant appears to rely solely on his assertions in his response to the s.424A letter.
The first respondent did not in terms accept that the s.424A letter was inaccurate. In fact, the first respondent said at [19] of his written contentions that it was not misleading to describe the Named Person as the applicant’s step-son. The first respondent went on to argue that the question of whether the Named Person was the applicant’s step-son was a matter of fact for the Tribunal to determine.
I would have thought, if the applicant wanted to argue that the Tribunal had provided misleading information, that would be a matter that the applicant would have to prove in this court. However, for the reasons which follow, nothing turns on that point.
I do not accept as a general proposition that, if information given in a s.424A letter is inaccurate, s.424A is not complied with. A major purpose in giving an applicant an opportunity to respond to information under s.424A is to enable the applicant to comment on and correct information that is inaccurate. In the present case, the applicant was given the opportunity to respond to the information that he had attempted to extort $30,000 or $100,000 and that the applicant had come to Australia for the purpose of extortion, rather than because he had a fear of persecution. It is implicit in the applicant’s case that all of that information was inaccurate. The applicant has not challenged that aspect of the s.424A letter. It is obvious that a s.424A letter is not inadequate simply because it seeks a response to allegations that turn out to be false.
It may be arguable that s.424A would not be complied with if the Tribunal under s.424A purported to seek a response to certain allegations, and misstated those allegations in a material way. The effect might be that the Tribunal had not provided the relevant information at all. For example, the Tribunal might say in a s.424A letter to an applicant that it had received information that he was a Buddhist, when in fact, the information received was that he was a Muslim. It is possible to imagine many circumstances where that would be a highly material error that would mean that the purported compliance with s.424A was no compliance at all.
However, in the present case, the alleged error was in a peripheral detail. The High Court said in SZBYR that s.424A is complied with by providing information that would be of dispositive relevance to the claim. The aspect of the s.424A information that would have been of dispositive relevance to the refugee claim in this case was that the applicant had not come to Australia because he had a well-founded fear of persecution but because he wanted to extort money from the Named Person. Whether the Named Person was the applicant’s son or step-son or no relation at all was immaterial. Accordingly, I do not accept that an inaccuracy, if any, in the description of the Named Person’s relationship with the applicant in the s.424A letter resulted in a breach of s.424A.

Ground 2: failure to invite comment on certain information

The second ground of review in the amended application filed on 2 February 2008 is:
When it sent a s 424A letter to him it failed to invite the applicant to comment on information which would be the reason, or a part of the reason, for affirming the decision that was under review being information from a named source that he [had certain characteristics or intentions].
The applicant relied on four particular matters under this ground.

Ground 2(a):

The first particular matter the applicant relied upon was the information that he:
was a successful businessman in Jordan and therefore, it was implied that he was not in need of protection in Australia.
The applicant said this information was contained in the letter from the Named Person. That letter was dated 25 February 2008 and was sent to the Department before the delegate made his decision. The relevant part of the letter said, in connection with the extortion allegation:
I know this man is not in need of money. He owns a 3 storey house, and a mobile phone business in Jordan.
At paragraphs 46 to 47, the Tribunal summarised the evidence given by the applicant at the hearing on 18 April 2008 in relation to his mobile telephone business. The Tribunal said:
46.    In 1997 he went into partnership with the younger man in a mobile phone business and has been conducting that ever since. He has been a passive investor having contributed the funds for the start-up of the business, renting a shop and employing the younger man as the manager. They share the profits 50/50.
47.    Asked to confirm that his employment history between 1982 and his departure from Australia in late 2007 consisted of being a taxi driver between 1982 in 1995 and a passive investor in a mobile phone business between 1997 and 2007, he confirmed that was the extent of his work experience. His partner has now bought out his share in the phone business.
48.    Asked again to confirm his employment history, he stated that he occasionally did some labouring on farms and drove other people's taxis.
In its s.424A letter, dated 12 May 2008, the Tribunal said under the heading, “Your employment in Jordan”:
In your protection visa application form you stated that you worked as a cafe owner during the period between 1982 and October 2007, whereas, at the hearing on 18 April 2008, you told the Tribunal that [you] only worked as a taxi driver (until about 1995) and thereafter as a passive investor in a mobile phone business, labouring on farms and driving other people's taxis.
In his response to the s.424A letter, the applicant said:
Our client instructs that when he returned to Jordan in 1982 he was restricted for some time by the Jordanian authorities from undertaking any work. Our client instructs that after approximately 3 - 5 years he was allowed to apply for a Drivers Licence. Our client instructs that once the authorities granted him a licence he began working as a taxi driver and delivery van driver. Our client instructs that he undertook this occupation for approximately 10 years before opening up a cafeteria for a short period of time. Our client instructs that after running the cafeteria he went into partnership with another person selling mobile telephones. Our client instructs that at that time, they converted his cafeteria into a mobile phone retail shop. Our client further states that he also worked as a labourer on farms when he first arrived in Jordan.
The Tribunal said at paragraph 95 of its reasons for decision:
Under the heading “Your employment in Jordan” the Tribunal notes that, in his response to the Tribunal's invitation to explain the apparent inconsistencies on this subject, the applicant maintains the version of events he presented in his oral evidence at the hearing, namely that he operated a mobile telephone business. He sought to reconcile this evidence with his earlier statement that he ran a cafeteria on the basis that the cafeteria was converted into a mobile telephone business. The Tribunal finds this implausible and considers that the applicant omitted the fact that he runs a mobile telephone business in Jordan from his initial set of claims because it undermines his claim to have suffered constant discrimination in Jordan. The concealment of information which might be adverse to his interest diminishes the credibility of the applicant's account of his personal history including his claims to have been persecuted.
The Tribunal said at paragraph 109 of its reasons for decision that:
He has worked as a taxi driver (owner-driver), opened a café and mobile phone business and continued to supplement his income as a driver. The Tribunal has reservations about accepting that that was the extent of his employment and business affairs. As indicated above, the Tribunal has found that the applicant omitted to disclose his involvement in a mobile phone business in his original statement and does not accept his explanation for doing so, finding instead that he sought to withhold information that might be adverse to his application. The Tribunal finds that the applicant has not been candid with the Department and the Tribunal about his employment in Jordan.

The Tribunal concluded at paragraph 116 of its reasons for decision that:
The Tribunal has made a number of adverse credibility findings and ultimately rejects his claims and finds rather that the applicant has led an unremarkable life as a businessman in Jordan for many years and that there is no real chance of him suffering persecution if returned to Jordan.
As stated above, the applicant claimed that the Tribunal breached s.424A by failing to invite the applicant to comment on information that he:
was a successful businessman in Jordan and therefore, it was implied that he was not in need of protection in Australia.
The alleged implication that the applicant was not in need of protection in Australia was not information that was contained in the Named Person’s letter. It was therefore not information that engaged s.424A. Nor did the Named Person’s letter state expressly that the applicant was a successful businessman in Jordan. The Named Person’s letter said, in the context of describing the extortion allegation, that:
I know this man is not in need of money. He owns a 3 storey house, and a mobile phone business in Jordan.
To the extent that the Tribunal may have concluded that this information implied that the applicant was a successful businessman, that conclusion was not information that needed to be disclosed under s.424A. That conclusion was a matter of the thought processes and appraisals of the Tribunal.
In any event, it was only those aspects of the information provided by the Named Person that would have been the reason, or a part of the reason, for affirming the decision under review, that needed to be disclosed under s.424A(1). However, that subsection has certain exceptions, including the exception in s.424A(3)(b), which concerns information that the applicant for review gave for the purposes of the application. The application in this context means the application for review.
The applicant himself gave information to the Tribunal for the purposes of the review that indicated that the applicant was a businessman. He told the Tribunal at the hearing on 18 April 2008 that he had been a passive investor in a mobile telephone business. Based on that information, it was open to the Tribunal to conclude that the applicant was a businessman. As that information was information given by the applicant himself for the purposes of the review, it did not need to be disclosed under s.424A.
Nevertheless, the Tribunal did disclose in its s.424A letter that the applicant told the Tribunal that he had been a passive investor in a mobile telephone business. In response to the s.424A letter, the applicant told the Tribunal that he had owned a café and later owned a mobile telephone business. That information was given by the applicant himself to the Tribunal. It confirmed that the applicant had been a businessman.
For these reasons, I do not accept that the Tribunal breached s.424A in the manner alleged.

Ground 2(b):

The second particular matter the applicant relied upon was information that he:
had come to Australia to see the named person and to enjoy his time here so implicitly had no fear of persecution.
The letter to the Department from the Named Person said that, when he met the applicant at the airport, the following conversation occurred:
Named Person: Why did you come here?
Applicant: I've come to see you.
Named Person: I ran away from you.
Applicant: to come see Australia and enjoy my time.
The Tribunal did not convey this information to the applicant in a s.424A letter and did not refer to the information in its reasons for decision, other than in the context of setting out the entire letter from the Named Person. The Tribunal disavowed reliance on the Named Person’s letter.
The applicant argued that the information contained in the alleged conversation at the airport engaged s.424A because it tended to suggest that the applicant did not come to Australia because he had a fear of persecution but because he wanted to see the Named Person and see Australia. The applicant said that the information was of the type described by Heerey J in MZXBQ at [27]. That paragraph is as follows:
27SZBYR 81 ALJR 1190; 235 ALR 609, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.
It can be seen that in MZXBQ at [27], Heerey J described two contrasting types of information. The first type was information that undermined the hypothetical applicant’s claim to have a well founded fear of persecution because it suggested that the hypothetical applicant was not a Christian as he had claimed. The second type was information that only went to the hypothetical applicant’s credibility because it suggested that the hypothetical applicant had been deceitful after his arrival in Australia.
I assume that the applicant in the present case says that the information presently in issue is information of the first type. The first respondent says that it is information of the second type. The first respondent says that the information in issue does not go to the heart of and is not centrally relevant to the applicant’s Convention claims, because the information does not concern the applicant’s involvement in Fatah or Hamas and so on.
The first respondent argued that Heerey J held in MZXBQ that information of the first type would be of dispositive relevance to the refugee claim, and would therefore engage s.424A, while information of the second type would not be of dispositive relevance to the refugee claim and therefore would not engage s.424A.
I consider that the information about the applicant’s alleged conversation at the airport is information of the first type described by Heerey J in MZXBQ at [17]. It tends to suggest that the applicant did not come to Australia because he had a subjective fear of persecution but because he wished to see the Named Person, see Australia and enjoy himself. A subjective fear, or lack thereof, is at the crux of any refugee claim. The information about the applicant’s alleged conversation at the airport does not simply suggest that he has been deceitful, in ways unrelated to his Convention claims. I do not accept the first respondent’s argument that the information about the applicant’s conversation at the airport goes only to credibility issues that are not of dispositive relevance to the claim.
As discussed at the hearing, the supposed dichotomy between matters going to the Convention claims and matters going to credibility is not always clear cut. In theory, the Tribunal might conclude that an applicant has lied about various matters unrelated to his Convention claims, and conclude from the fact of those lies that he had also lied about his Convention claims. In that circumstance, information on which the Tribunal based its conclusion that the applicant had lied about the matters unrelated to his Convention claims would be a part of the reason for affirming the decision under review. Accordingly, that information would not go purely to credibility.
In my view, the alleged conversation at the airport, if true, would have undermined the applicant’s claim to have a subjective fear and would accordingly have been a part of the reason for affirming the decision under review. It was therefore a jurisdictional error for the Tribunal not to send a s.424A letter concerning that alleged conversation.
The first respondent argued that, if the court found that there had been jurisdictional error, the court should exercise its discretion not to grant relief as no useful result could ensue. The first respondent argued that the Tribunal had rejected the applicant’s claims because they were inconsistent and implausible, and without reliance on the Named Person’s letter. The first respondent argued that we know that the result would have been no different if the Tribunal had sent a s.424A letter concerning the conversation at the airport.
These arguments misunderstand the futility ground. In SZBYR at [27], which the first respondent relied upon, the High Court said that the discretion to withhold relief was appropriately exercised in that case because, even if all of the appellants’ claims were true, their case was doomed to failure because it did not have a Convention nexus. The present case is quite different. Here, if all the applicant’s claims were true, his case would have a Convention nexus.
The discretion to refuse relief on the grounds of futility is only exercised where the decision could not have been different if the jurisdictional error had not occurred. The futility argument will succeed where the decision can be supported by an entirely separate strand of reasoning that could not have been in any way affected by the jurisdictional error. For example, a jurisdictional error consisting of misunderstanding the nature of persecution might not be affected by a separate strand of reasoning about relocation.
In the present case, the Tribunal affirmed the decision on the grounds that the applicant did not have a well founded fear of persecution. The alleged airport conversation went to the subjective element of whether the applicant had a well founded fear. Accordingly, it is conceivable that the Tribunal’s decision could have been different if s.424A had been complied with.
The first respondent suggested that the Tribunal’s reasons for affirming the decision were overwhelming, and no evidence that the applicant could have given in answer to the alleged airport conversation could have altered the Tribunal’s decision. However, this submission invites the court to delve into the merits of the case. The court is not permitted to do so.
Section 424A does not contain the common law exception that, to warrant disclosure, the information should be credible, relevant and significant. As I understand the authorities, information would be of dispositive relevance even if it would be of slight dispositive relevance. To decide otherwise would require a consideration of the merits of the case.
I do not consider that it would be proper in this case to exercise the court’s discretion to refuse relief. Accordingly, orders in the nature of the usual writs should be made.

Ground 2(c):

The third particular matter the applicant relied upon was information that he:
had come to Australia to destroy the named person’s life so implicitly had no fear of persecution.
The letter from the Named Person said that he had the following conversation with the applicant:
Named Person: [You are] going to destroy my life.
Applicant: This is what I have come for.
The Tribunal did not provide this information to the applicant in a s.424A letter. The Tribunal did not refer to this information in its reasons for decision, except that it set out the Named Person’s letter in full in its reasons for decision. As noted, the Tribunal disavowed reliance on the Named Person’s letter.
Again, this information tends to suggest that the applicant did not come to Australia because he had a fear of persecution but because he wanted to destroy the Named Person’s life. The parties argued this ground on the same basis as ground 2(b). For the same reasons as those given under ground 2(b), orders in the nature of the usual writs should be made.

Ground 2(d):

The fourth particular matter the applicant relied upon was information that he:
was generally a person of bad character who had physically abused the named person.
The Named Person’s letter said:
I have lived in Australia for almost 9 years. Leaving behind a life of violence and abuse. As a child, I was emotionally, verbally and physically abused from this man. At times I would be beaten so badly I’d be left unconscious. I hated this man so much I wished death on him.
I used to go to bed crying myself to sleep. All I wished for was a place where I could escape to so I'd never see him in my life again. At 16, I thought to kill myself or escape somewhere where I'd never see him. One night, I left not knowing where I was going or where I was headed. All I knew was to run away. I was asking God so I would never again see him.
The Tribunal did not provide this information to the applicant in a s.424A letter. The Tribunal did not refer to this information in its reasons for decision, except that it set out the Named Person’s letter in full in its reasons for decision. As noted, the Tribunal disavowed reliance on the Named Person’s letter.
The applicant conceded that this information may have gone to credit only, in the formulation in MZXBQ, but maintained that the information still engaged s.424A.
The first respondent submitted that the Named Person’s letter did not expressly contain information that the applicant was of bad character. Rather, it contained information from which the Tribunal may have inferred that the applicant was of bad character. This is too nice a point. The ground obviously refers to the information from which the Tribunal might infer that the applicant was of bad character. That inference would be a matter of the Tribunal’s thought processes, and thus, not a matter within the scope of s.424A. However, the underlying information would engage s.424A.
That being so, the first respondent then argued that the information as to the applicant’s alleged bad character would go only to credibility and would not be of dispositive relevance to the Convention claims.
The information about the applicant’s alleged bad character is not of dispositive relevance to the question of whether the applicant had a well founded fear of persecution. Even if the information was true, and the applicant had in fact physically, emotionally and verbally abused a child, it would have no bearing on whether the applicant himself had a well founded fear of persecution.
However, the applicant argued that the allegation that the applicant had seriously abused a person went to Article 1F of the Convention. I understand that the applicant relied on Article 1F(b) which provides that the Convention does not apply:
to any person with respect to whom there are serious reasons for considering that:
…
(b) he has committed a serious non-political offence ….
Accordingly, the allegations of bad character could have been of dispositive relevance to the Convention claims because they could have meant that the Convention did not apply to the applicant.
The delegate considered Article 1F in relation to the applicant’s claims of being involved in certain political organisations but did not ultimately rely on Article 1F in relation to the applicant’s alleged political activities or in relation to his alleged child abuse. The Tribunal did not allude to Article 1F in its reasons for decision.
It may be accepted that child abuse is a serious non-political offence. Whether the Named Person’s allegations in this case amounted to serious reasons for considering that the applicant had perpetrated child abuse was really a matter for the Tribunal, as part of its merits review, rather than this court, unless the Tribunal misdirected itself for example.
The Tribunal implicitly found that there were not serious reasons for considering that the applicant had committed a serious non-political offence. That implicit finding has not been challenged. It is, of course, a finding that is favourable to the applicant. It removed Article 1F from the equation.
SZBYR said that whether information would be the reason or a part of the reason to affirm the decision under review is to be assessed without regard to the Tribunal’s actual reasoning process. However, the effect of the Tribunal’s reasoning in this case is that it made an implied finding, which only it could properly make, which meant that the information about the applicant’s alleged bad character would not be used as a basis for excluding the applicant from the protection of the Convention and, as such, would not be used to affirm the decision under review.
Accordingly, I do not consider that the information about applicant’s alleged bad character engaged s.424A. Therefore, the Tribunal did not make a jurisdictional error by not inviting comment about that information under s.424A.

Conclusion

As grounds 2(b) and 2(c) have been made out, and as there is no proper basis for refusing relief, orders in the nature of the usual writs should be made. Costs will follow the event.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Ashika Kanhai

Date: 29 April 2009