Nie v Minister for Immigration
[2007] FMCA 42
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NIE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 42 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of partner residence visa – Tribunal not satisfied that the applicant was in a spousal relationship although legally married – whether the Tribunal exhibited bias, whether the Tribunal proceeding was fair and whether the Tribunal breached s.359A of the Migration Act 1958 (Cth) considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.357A, 359A, 424A Migration Regulations |
| NBKT v Minister for Immigration [2006] FCAFC 195 SZEEU v Minister for Immigration (2006) 230 ALR 1; (2006) 150 FCR 214 Paul v Minister for Immigration (2001) 113 FCR 396 SAAP v Minister for Immigration (2005) 215 ALR 162 Tin v Minister for Immigration [2000] FCA 1109 VAF v Minister for Immigration (2004) 206 ALR 471 VWFP and VWFQ v Minister for Immigration [2006] FCA 231 WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276 |
| Applicant: | SHIYANG NIE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1180 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 24 October 2006 |
| Date of last submission: | 4 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Nanson Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to the “Minister for Immigration and Citizenship”.
A writ of certiorari shall issue quashing the decision of the Tribunal handed down on 3 April 2006.
A writ of mandamus shall issue requiring the Tribunal to redetermine the review application before it according to law.
The first respondent shall pay to the applicant his out of pocket expenses in the form of filing and setting down fees of $652.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG180 of 2006
| SHIYANG NIE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) which was handed down on 3 April 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa and to affirm a decision of the delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) visa. I adopt with minor amendments the following statement of background facts from the outline of written submissions filed by the applicant on 26 June 2006.
The applicant, a citizen of the People’s Republic of China (PRC), applied for a spouse visa on 4 November 2004 to the then Department of Immigration and Multicultural and Indigenous Affairs in its Sydney office. This was refused by a delegate of the Minister in February 2005. The applicant then applied to the Tribunal for review of the delegate’s decision within 28 days upon receiving the notification from the Minister’s Department. In due course, the Tribunal invited the applicant to attend a hearing. The applicant, upon receiving the notification, attended the hearing organised by the Tribunal and responded to questions from the Tribunal member. The Tribunal then made a decision and handed it down on 3 April 2006.
The applicant’s claims were:
a)The applicant made claims that he and his wife, who is an Australian citizen, had been in genuine spousal relationship. They were legally married according to Australian law and their relationship had been going on ever since their marriage. They were living as husband and wife since their marriage and they would continue to do so regardless the outcome of the case.
b)The applicant had been living in Australia for quite some years and his spousal relationship with his Australian wife had been recognised by the general Australian society. The applicant had provided evidence of social recognition in this respect but the delegate failed to give due weight to the evidence provided.
c)The applicant and his wife had shown a very strong commitment to each other as husband and wife and the applicant had provided detailed information and documents in this respect to the Immigration Department. The delegate failed to pay due regard to this issue.
The decision of the Tribunal
The Tribunal accepted that the applicant and his wife are legally married in Australia. However, the Tribunal was not satisfied that the applicant and his wife were genuinely in a spousal relationship, nor was the Tribunal satisfied that the couple had a strong commitment to each other as husband and wife. In addition, the Tribunal was not satisfied that their spousal relationship was ongoing or socially recognised to a sufficient degree. The applicant strongly disagrees with these findings because:
a)The applicant had provided details relating to their social activities concerned.
b)The applicant had provided details of their residential and financial commitments.
c)The applicant had explained how their relationship developed.
d)The applicant had provided supporting documents to the Tribunal during the period of review to show that their relationship was ongoing.
e)The applicant had brought forward to the hearing, not only his wife, but other people as witness of their spousal relationship.
The application and evidence
Mr Nie relies upon his application filed on 24 April 2006. That application was uninformative in terms of identifying any jurisdictional error in the decision of the Tribunal. However, at a show cause hearing I conducted on 17 July 2006 I was able to discern that the applicant asserted a want of procedural fairness in the Tribunal’s process and I ordered that the application be taken to be amended by deleting the grounds in it and substituting the following ground:
The Migration Review Tribunal failed to afford the applicant procedural fairness as the presiding member failed to listen to the applicant’s comments carefully and patiently as well as to the witnesses properly and patiently and failed to examine oral evidence carefully and patiently.
I gave Mr Nie the opportunity to file a transcript of the hearing conducted by the Tribunal and, on condition he did so, I ordered the Minister to show cause why relief should not be granted in relation to the ground of review identified. At the final hearing I did not restrict Mr Nie to that ground pursuant to rule 44.13(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) because it would have been unfair to do so. The issue identified at the show cause hearing was not well framed. Further, it became apparent at the final hearing that there were three issues to resolve:
a)asserted actual or apprehended bias;
b)a possible failure to comply with s.359A of the Migration Act 1958 (Cth) (“the Migration Act”); and
c)a possible error in dealing with corroborative evidence.
Mr Nie filed an affidavit annexing a transcript of the hearing on 31 August 2006. I also have before me in evidence a book of relevant documents filed on 6 June 2006.
Submissions
In his oral submissions Mr Nie asserted that the Tribunal discriminated against him and showed a lack of patience. He was not able to point to anything in particular in the transcript to support that assertion, apart from saying that the presiding member asked the same questions repeatedly. It transpired that Mr Nie was intending to submit that the presiding member had displayed actual or apprehended bias in the manner the hearing was conducted and in her decision. Mr Nie was also concerned that the Tribunal gave little weight to corroborative evidence presented in support of his application and that the Tribunal gave little weight to certain evidence in the apparent belief that the statements may not be those of the persons purportedly making them. He considers that the effective rejection of that evidence was tantamount to a finding of fraud and that he should have been given the opportunity to comment on that finding.
The Minister submits that the Tribunal decision is free from any jurisdictional error. The Minister submits that nothing in the transcript supports an allegation of a want of procedural fairness or bias. Neither does the statement of the Tribunal’s reasons. The Minister also relies upon s.357A of the Migration Act in relation to the fair hearing rule under the general law and notes that the applicant was given a second opportunity to attend a Tribunal hearing (which he took up) after failing to attend the initial hearing which had been arranged.
I invited additional submissions from the parties on the assertions of actual or apprehended bias, on the question of whether the Tribunal had breached s.359A of the Migration Act in relation to the information set out at paragraph 31 of the Tribunal reasons[1] and on the question of the treatment by the Tribunal of corroborative evidence advanced by or on behalf of the applicant.
[1] court book, page 182
The Minister’s additional written submissions were filed on 6 December 2006 and are relevantly in the following terms:
Actual or Apprehended Bias
In the first respondent’s submission there is no substance in any claim that either the hearing itself, as transcribed and annexed to the affidavit of the applicant, or the written reasons of the Tribunal, suffer from actual or apprehended bias. As was stated in NADH of 2001 v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 in paragraph 14:
The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].
The Tribunal provided an opportunity to the applicant to properly advance his claims, and explained what its function was. It provided an opportunity for the applicant to provide supporting material, both before and after the hearing, which material it considered in the exercise of its function.
As was stated in NADH at [20]:
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.
There is no supportive evidence before this Court upon which it could conclude that the Tribunal was in fact biased in the way in which it conducted the hearing or carried out other procedures or in the sense that it had in fact closed its mind. Apprehended bias may be properly assessed at the time of the action or conduct in question or when the decision has been handed down. An examination of the transcript and the reasons for decision do not disclose any material which might found a sustainable claim. Accepting that the subject of a reasonable apprehension need only be a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at 553.
The first respondent submits it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka, at [90]. Rather, there needs to be a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant’s case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL (1986) 161 CLR 342 at 372.
It is submitted that an allegation of bias raises a serious issue and must be founded on facts sufficient to give rise to the inference. Both the transcript and the written reasons do not manifest that such a claim could be levelled. In the first respondent’s submission there is no error in this regard.
Section 359A and paragraph 31 of reasons
At paragraph 31 the Tribunal states:
There are some photographs and statutory declarations from Australian citizens who are apparently family members and friends of the sponsor. These include a statutory declaration from Debbie Lim (a witness for the marriage certificate); the visa applicant’s employer since 2002 (Ms Yu Hua Zhou) and a student friend, Margaret Meng. The Tribunal gives these documents little weight as the signatures in the passports are considerably different to those appearing on the statutory declarations. The Tribunal gives the statutory declaration of Ms Lim little weight as she was a witness to the wedding and her statement gives little detail about the ongoing relationship.
Photographs
The photographs in para.31 were submitted by the applicant to the Tribunal. The photographs are referred to by the Tribunal in its reasons (para.32) but clearly not given weight. The photographs are information, but excluded by virtue of s.359A(4)(b) of the Migration Act 1958 (Cth) (“the Act”) as information that the applicant gave for the purpose of the application.
Margaret Meng
The Tribunal had before it a statutory declaration of Margaret Meng (CB49), the bio-data page of her passport (CB50), a copy of her drivers licence (CB149) and two specimen signatures (CB150,151), together with oral evidence given by her. The witness was called by the applicant. Her oral evidence, although short (Transcript p18-19) is consistent with the evidence given in her statutory declaration. The Tribunal put to the witness the apparent inconsistency of her signature as set out in her passport. In fact the oral evidence is given “some, but not great weight.”, at para. 32 by the Tribunal.
The first respondent submits this is appropriate. The bio-data page signature did not play any part in the Tribunal’s reasons for affirming the decision under review. Rather, to the extent it was relevant, it was the evidence given by the applicant before the Tribunal, which evidence was consistent with an earlier statutory declaration of the witness. The first respondent relies on the exception in ss (4)(b) of s.359A of the Act. In relation to s.424A(3)(b) - an identical provision but affecting information given to a different Tribunal - Scarlett FM in SZHRD v Minister for Immigration [2006] FMCA 551 at [19] said:
….. the evidence of this person is excluded by s.424A(3)(b) which applies to evidence given by a witness called by an applicant. I am referred to the decision in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504, which is a decision of Gray J. In particular at paragraph 44 his Honour said:
Section 424A of the Migration Act did not oblige the Tribunal to give notice to the applicant of the finding it proposed to make about the witnesses. That section relates only to, "Information that the Tribunal considers would be the reason or a part of the reason for affirming of the decision" under review. Section 424A(3)(b) excludes from the obligation information that the applicant gave for the purpose of the application. The evidence of the three witnesses was information that the applicant gave for the purpose of the application.
Debbie Lim and Yu Hua Zhou
The statutory declarations of both Ms Lim and Ms Zhou were referred to by the Tribunal. The content of both statements are similar in the evidence they set out. Neither document was produced by the applicant before the Tribunal but were part of the evidence provided in support of the visa application before the Department.
Importantly however, the transcript of the hearing shows that neither of the two declarants is referred to by the Tribunal or the applicant. True it is that in its reasons the Tribunal expressly refers to both statutory declarations. In doing so it expresses the view the signatures in the passports are “considerably different to those appearing on the statutory declarations”. For this reason the documents are given “little weight”. The proper construction is that the Tribunal’s views about the contents of the declarations and signatures were not information in the s359A sense but resulted from its process of evaluation and thought in relation to the materials before it: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [65].
The first respondent submits the content of the declarations was not relevant evidence taken into consideration by the Tribunal in its assessment of the matters necessary to establish that the applicant and his sponsor had spousal relationship in terms of the Act and regulations. The evidence and information relied upon by the Tribunal was that given directly by the applicant and his witnesses.
To the extent that evidence about these issues formed part of the reasons, at its highest this is a case where it was a: “subsidiary and peripheral reason” upon which the Tribunal relied to reject the applicant’s claim concerning the social aspect of the relationship - see SZEEU at [22]–[25].
The first respondent submits there is no error disclosed in paragraph 31 of the Tribunal’s reasons.
Corroborative evidence advanced by or on behalf of the applicant
The evidence advanced by or on behalf of the applicant included various invoices, various photographs and oral evidence given by Margaret Meng, Jia Wang and by Pricilla Wong, the sponsor, at the hearing. Post hearing documents included a will, tenancy agreement, letter from the applicant’s mother, insurance policy notation and statements by the applicant’s sponsor as to her previous employment and from her current employer.
The Tribunal stated that it had regard to all the information before it and noted that additional time had been granted to permit further information to be advanced in support. A fair reading of the Tribunal’s decision identifies that it accepted that evidence to the extent it was advanced by the applicant and gave it varying degrees of weight.
It is clear that the Tribunal did not consider the totality of the evidence advanced to be of sufficient weight to satisfy the tests required under the Act. The Tribunal was not obliged to prompt and stimulate an elaboration from the applicant of his case. It was for the applicant to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim had been made out. This it did.
The first respondent submits this is not a comparable situation to that considered in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511. In WACO the documentary evidence in question, which the Tribunal did not accept, had been provided after the Tribunal hearing had concluded and accordingly the applicant had no way of knowing that the authenticity of the documents involved was something that was ‘in dispute’. Here such an argument was not in issue over the relevant documents, only the question of the weight that might be attached to them.
There has been no unfairness in the circumstances of this matter, where the applicant knew what he was required to prove to the decision maker and was given the opportunity to do so. He cannot be heard to complain if his application is rejected because the Tribunal, without notice to him, rejected what was put forward: see WACO at [46]. In the first respondent’s submission there is no error disclosed in the treatment by the Tribunal of the corroborative evidence put forward by the applicant.
The applicant filed a document entitled “Applicant’s Outline of Submissions” on 4 January 2007 which re-states the three issues identified in argument. He also states that he was “strongly distressed” by the way the presiding member spoke to him and looked at him and that he felt that he was “doomed” at the Tribunal hearing no matter what he said.
Reasoning
The Tribunal decision is noteworthy for the fact that there is no discussion in the statement of decision and reasons about what occurred at the hearing conducted by the Tribunal. At paragraphs 13 to 15 of her decision[2] the presiding member discusses the invitation given to the applicant to attend the hearing and his failure to attend and the arrangement subsequently made for another hearing to be conducted. That is where the discussion on that subject ends. Nevertheless, the transcript introduced into the evidence by the applicant provides evidence of what occurred at that hearing. It is apparent that the presiding member asked the applicant a large number of questions in order to test his claims and that these were answered briefly by the applicant. It is also apparent that the presiding member had doubts at the hearing whether the applicant and his nominator were “spouses” for the purposes of the criteria for a subclass 820 visa[3].
[2] court book, page 179
[3] see part 820 of schedule 2 to the Migration Regulations (“the Migration Regulations”)
The Tribunal in its findings and reasons referred to the test to be applied to determine whether one person is the “spouse” of another person, whether in a married or de facto relationship for the purposes of the Migration Act and Regulations. The relevant considerations related to all the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. The Tribunal accepted that Mr Nie and his sponsor were married in Australia on 20 October 2004 and that the marriage was valid. The presiding member considered the chronology of events as advanced by Mr Nie and noted that there were certain inconsistencies in the evidence as to when he and his wife began living together. The presiding member also noted that his wife’s parents apparently disapproved of the marriage. The presiding member accepted that Mr Nie and his wife had a joint bank account, that Mr Nie had a life insurance policy with his wife as the beneficiary and that he and his wife had a joint gym membership. They leased a property together. There were supportive statements or statutory declarations by several friends and members of the family. There were some utility bills for the matrimonial home and Mr Nie’s wife’s driver’s licence was changed from her parents’ address to the matrimonial home.
Nevertheless, the presiding member was dissatisfied with the detail of the supportive evidence of a spousal relationship and concluded that she was not satisfied that there was a mutual commitment to a shared life as husband and wife. In particular, the Tribunal was not satisfied that Mr Nie had a commitment to his wife. In reaching that conclusion, the presiding member dealt with corroborative evidence in the following way:
There are statements from the visa applicant’s parents. The delegate gave them little weight as the statements were “not accompanied by certified translations or certified copies of passports”. The Tribunal has considered those statements and gives them some weight. They clearly indicate the parents of the visa applicant are aware of the marriage although surprised by it. More recent information indicates that the parents support the visa applicant in his marriage.
There are some photographs and statutory declarations from Australian citizens who are apparently family members and friends of the sponsor. These include a statutory declaration from Debbie Lim (a witness for the marriage certificate); the visa applicant’s employer since 2002 (Ms Yu Hua Zhou) and a student friend, Margaret Meng. The Tribunal gives these documents little weight as the signatures in the passports are considerably different to those appearing on the statutory declarations. The Tribunal gives the statutory declaration of Ms Lim little weight as she was a witness to the wedding and her statement gives little detail about the ongoing relationship.
Xuan (Margaret) Meng (dob 5/11/84) and Jia Wang (dob 18/4/82) gave evidence in support of the couple at the hearing and the Tribunal gives that evidence some, but not great, weight. There are some photos showing the couple at the registry office and a restaurant with others. Most other photos are of the couple only. There is little evidence of the couple participating in social events. There is no evidence indicating the couple have ever travelled overseas together.
I accept the Minister’s further submissions on the issue of actual or apprehended bias. It is unfortunate that the Tribunal decision is silent on the question of what occurred at the hearing conducted by the Tribunal. The transcript of that hearing does not, however, assist the applicant in supporting his assertions that the manner in which the presiding member looked at him or spoke to him[4] indicates pre-judgement. The available evidence of the conduct of the hearing does not support the assertions of actual or apprehended bias. I reject those grounds of review.
[4] in the sense of tone or manner of speaking
The s.359A issues
It is apparent from the reasons for decision of the Tribunal that a part of the reason why the decision of the delegate was affirmed was that the corroborative evidence as to the genuineness of the spousal relationship between the applicant and his wife was given little weight. The information bearing upon the Tribunal’s conclusion that it should give that evidence little weight included information evidencing differences in the signatures of the persons making those statements. In the case of Ms Lim, the Tribunal also took into account the information that she was a witness at the wedding and the content of her statement.
In the case of Margaret Meng, the presiding member was concerned about the difference between the signature of Margaret Meng in her statutory declaration and that in her passport. I accept that the passport was information provided by the applicant. So it appears was her statutory declaration. I also accept the Minister’s submission concerning the photographs presented by the applicant. The photographs were information excluded from the obligation of disclosure pursuant to s.359A(4)(b) of the Migration Act.
In the case of Debbie Lim and Yu Hua Zhou, the statutory declarations were produced to the Minister’s Department prior to the decision of the delegate. It appears from the transcript that those statements were not discussed at the hearing, let alone the issue of the differences in the signatures of these two persons. Nevertheless, the presiding member regarded the signatures as an issue of some significance sufficient to minimise the weight given to their statutory declarations. The Minister contends that the question of the inconsistency in the signatures was not “information” for the purposes of s.359A but was part of the reasoning process of the Tribunal. In NBKT v Minister for Immigration [2006] FCAFC 195 Young J, with whom Gyles and Stone JJ concurred, said on this issue at [29]-[36]:
The meaning of ‘information’ was considered in the context of s 424A(1) by Allsop J in SZEEU at 259-260 [204]-[205]:
‘The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.
Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].’
In contrast with the above, the Tribunal’s subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (‘Paul’) at 428 [95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (‘VAF’) at 476-477 [24] per Finn and Stone JJ. The concept of information does not extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282 [26]-[27]. The distinction between ‘information’ that is part of the Tribunal’s reason on one hand, and ‘subjective appraisals’, ‘thought processes’ and ‘determinations’ of the Tribunal on the other hand, may be plain in some cases, but in other cases it may prove to be very fine, if not elusive: Paul at 428 [95]; VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 [36] (‘VWFP’).
It is not necessary that the information is integral to the Tribunal’s reasoning process; s 424A(1) is enlivened even if the information forms only a minor or subsidiary part of the Tribunal’s reason for affirming the decision under review: SZEEU at 252 [158] per Weinberg J and at 262 [215] per Allsop J; and SAAP at 179-180 [68] and 184-185 [83] per McHugh J, 203 [173] per Kirby J and 211 [208] per Hayne J.
The appellant relied on SZEEU in support of her contention that the dates of her arrival in Australia and application for a protection visa constituted ‘information’ for the purposes of s 424A(1). In SZEEU, the Full Court considered five appeals that raised similar issues. In one of those appeals, SZEOP, the Court held that the date of a protection visa application was ‘information’ caught by s 424A(1) in circumstances where the Tribunal had regard to the appellant’s delay in applying for a protection visa: at 236 [67]-[69], 254 [171] and 267 [253]. In that case, the Tribunal had found that the appellant had arrived in Australia in January 2001 but did not make any claims for refugee status before making his application for a protection visa in August 2004. The Tribunal concluded that the appellant’s claims to be a refugee arose out of discussions while he was in immigration detention and affirmed the decision under review.
In Moore J’s reasons for judgment in SZEEU, his Honour defined the date of the appellant’s protection visa application as ‘the date of application information’: at 236 [67]. Weinberg and Allsop JJ both adopted Moore J’s definition in their separate reasons for judgment. All three judgments appear to proceed on the assumption that ‘the date of application information’ was capable of being information for the purposes of s 424A. In the result, their Honours differed as to whether the date of application information was part of the reason for the Tribunal’s decision: at 236 [67]-[69] per Moore J, 254 [171] per Weinberg J, and 267 [253] per Allsop J.
The appellant relied specifically on Allsop J’s findings in SZEEU at 267 [253]-[254]. There his Honour held that ‘the date of application information’ was knowledge gained by the Tribunal from the appellant’s visa application which formed part of the Tribunal’s reasons for its decision. His Honour considered that it was information required to be provided to the appellant in accordance with s 424A(1) because the Tribunal relied upon the fact that the appellant had delayed in applying for a protection visa in finding that the appellant did not fear persecution. Weinberg J agreed with Allsop J: at 254 [171].
It is also relevant to note that in VAF all members of the Court considered that the appellant’s tardiness in applying for a protection visa constituted information within the meaning of s 424A, although Finn and Stone JJ (Merkel J dissenting) held that it was not information that formed part of the reasons for the Tribunal’s decision.
Thus, SZEEU affords clear authority that the date of a protection visa application may be information required to be provided to an applicant pursuant to s 424A(1) if it is knowledge gained by the Tribunal that forms part of its reason for decision. In the present case, the date of the appellant’s arrival in Australia and the date of her protection visa application were relied upon by the Tribunal in concluding that the appellant did not have a well‑founded fear of persecution.
In the present case the “information” was differences in the signatures of Ms Lim and Ms Zhou on their statutory declarations and on other documents. The reasoning process of the Tribunal bore on the question of the weight that could be given to that evidence in the light of the inconsistency. In my view, the information in the form of the inconsistency was information bearing upon the outcome of the case because it determined the weight that would be given to the corroborative evidence of a spousal relationship. As Young J noted in NBKT, it is not necessary that the information is integral to the Tribunal’s reasoning process but it is sufficient if the information forms a minor or subsidiary part of the Tribunal’s reasons for affirming the decision under review. Just as the date of the applicant’s visa application was information requiring disclosure in SZEEU, so here, the form of the signatures of Ms Lim and Ms Zhou was information requiring disclosure. At a practical level, the failure by the Tribunal to raise any concern at the hearing about those signatures underscores the need for the applicant to be given the opportunity to comment. Further, the applicant had no opportunity to “adopt” that information for the purposes of his review application.
As I have already noted, the documents bearing the signatures of Debbie Lim and Yu Hua Zhou were produced to the Minister’s Department and not to the Tribunal. The information in them therefore was not information provided by the applicant for the purposes of the review application. The information included the form of the signatures.
The applicant should have been invited to comment on the apparent inconsistency of the signatures of those persons. He was not so invited and the failure to do so constitutes jurisdictional error[5].
[5] SAAP v Minister for Immigration (2005) 215 ALR 162
In view of the failure to comply with s.359A, the applicant should receive relief in the form of the constitutional writs of mandamus and certiorari.
It is unnecessary to consider whether the Tribunal otherwise erred in its consideration of the corroborative evidence.
The applicant is self represented and has not incurred any legal costs. He has paid filing and setting down fees of $652. I will order the Minister to reimburse him those fees.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 February 2007
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