SZAFB v Minister for Immigration - [2003] FMCA 399

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFB v MINISTER FOR IMMIGRATION

[2003] FMCA 399

MIGRATION – Review of RRT decision – application for protection visa – where the applicant claims to have a well-founded fear of persecution for imputed political opinion – where the Tribunal made findings on the applicant’s credibility – whether the Tribunal made a jurisdictional error by either ignoring relevant information or relying on irrelevant material – whether the Tribunal made a jurisdictional error by preferring certain country information over oral and written evidence provided by the applicant – whether there was a breach of s.424A – where the Tribunal clearly set out what country information it had relied on in accordance with s.430 – where the information used by the Tribunal was information about a class of persons of which the applicant was a member pursuant to s.424A(3).

Migration Act 1958 (Cth), ss.359A, 424A, 430

Awan v Minister for Immigration [2002] FCA 594
NAHV v Minister for Immigration [2003] FCAFC 102
VHAJ v Minister for Immigration [2003] FCAFC 186
Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380

Applicant:

SZAFB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 216 of 2003

Delivered on:

22 September 2003

Delivered at:

Sydney

Hearing date:

16 September 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr B Level

Solicitors for the Applicant:

Mr J Bharati

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 216 of 2003

SZAFB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 8 July 2001. On 14 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 17 January 2002 a delegate of the Minister refused to grant a protection visa and on 3 February 2002 the applicant applied for review of that decision by the Refugee Review Tribunal. On 30 September 2002 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to a hearing before the Tribunal which he attended on 29 October 2002. The Tribunal considered the matter and made its decision on 30 December 2002, handing it down on 29 January 2003. The Tribunal affirmed the delegate’s decision not to grant a protection visa.
The applicant’s claim to have a well-founded fear of persecution arose in respect of the convention reason of political or imputed political opinion. The applicant is a Sikh who stated that he had married into a family of Sikh activists from the Punjab. In his claims to the delegate he provided considerable detail about being picked up from his father-in-law’s house in the Punjab in 1995, taken to a police station and badly tortured. He was kept there for two months in illegal custody having been labelled as a member of Babbar Khalsa. He says that in 1996 the Punjab and Delhi police jointly raided his home and shop in Delhi. About a month later police came to his shop and took him away to an interrogation cell, where after denying allegations that he was associated with three persons from Babbar Khalsa, he was hung upside down and made to stand for two days. He was forced to walk after being tortured. This continued for seven days. He was accused of being an accessory to the murder of Sajan Kumar and Jagdish Tyder, Ministers of the State. The applicant claimed that he had to pay bribes to obtain his release from prison but in the following six months he was continuously arrested and tortured. He claimed to have hidden with relatives and friends who had been harassed to reveal his whereabouts.
The applicant arrived in Australia on a passport issued in his own name and which he agreed was a renewal of a previous passport that he had.
Before the Tribunal the applicant moderated his claims. He said that he was never an active member of any political group and was just happy at his shop. He never went to meetings of any political group although he was in his mind a supporter of Mann Singh but he was not active as he helped his father in the shop. He did claim that he was arrested many times and being accused of active membership of Babbar Khalsa.
The applicant claimed to the Tribunal that he feared that the police might kill him and that they have done this in false encounters with other people. The applicant said at the hearing that he had no other problem in India and there was no other reason why the police might come to his home.
In its findings and reasons found between [CB 80 and 82] the Tribunal accepted the applicant’s claims that thousands of people had died in the Punjab at the hands of the police and the army including innocent civilians. The Tribunal accepted the applicant’s claims that there were hundreds of unsolved disappearances. The Tribunal accepted that the applicant was born into a religious Sikh family in Delhi and that he worked in Delhi managing the family business. The Tribunal accepted that the applicant had never attended political meetings and had not been actively involved in politics or anti-government activity.
The Tribunal did not accept that the applicant’s brother-in-law was a member of Babbar Khalsa because it found the applicant’s evidence in relation to his brother-in-law uncertain and confused and therefore unreliable. The Tribunal did not accept that the applicant had a profile that would bring him to the attention of authorities in the current atmosphere where even some convicted activists have been released back into the community and there is talk of a general amnesty.
The Tribunal did not accept that police held the applicant on suspicion of a close association with Babbar Khalsa as he claimed. In conclusion the Tribunal stated at [CB 82]:
“I do not accept that the applicant was accused of being an accessory to the murder of Sajan Kumar and Jagdish Tyder, Ministers of the State. I am satisfied that the applicant has exaggerated his role and the role of police in his claims about their treatment of him. I make this finding because the applicant’s evidence in inconsistent with country information. The applicant appears to have had no difficulty during the peak of the militancy when abuses by police were massive. The applicant claims his problems arise as the militancy and police mistreatment died down in the mid-1990s. Further I make this finding because if the applicant had been accused of a serious crime of this nature authorities would not have released him with such ease.
I accept the country information above that indicates the Indian police are corrupt. If the applicant did encounter difficulty with police leading to his detention I am not satisfied that it was for any Convention reason. Rather he has been a victim of police who seek payment of bribes by intimidation. If his family paid money and bribed his way out whenever he was arrested I am satisfied that it was for this reason that he was arrested and not his political opinion or other Convention reasons. Having considered the applicant’s claims both individually and cumulatively I am satisfied that the applicant has no well fear of persecution for a Convention reason.”
The applicant was not satisfied with the Tribunal’s decision so he employed a lawyer to act on his behalf in seeking review from this court. An application was filed on 24 February 2003. The grounds of the application that are set out in that document are:
“(1) The Refugee Review Tribunal made a jurisdictional error when it ignored relevant material and relied on irrelevant material.
(2) The Refugee Review Tribunal made a jurisdictional error when it rejected oral and written evidence and made a decision on a computerised supported evidence.
The decision of the RRT involved an error of law being incorrect application of the law to the facts as found by the person who made the decision etc.”
An affidavit in support was also filed. This relevantly states:
“(4) The applicant was aggrieved by the decision because the Tribunal did not believe in the oral evidence of the applicant.
(5) The Tribunal member did not understand the nature of the applicant’s fear of persecution.
(6) The Tribunal member asked irrelevant questions and misunderstood the applicant’s case. The applicant was held by police on suspicion of a close association with the Babbar Khalsa, but the Tribunal totally rejected his claim. Applicant’s father-in-law is a member of Human Rights group in Amritsar. This is fact that the applicant joined the Akalidal Mann Human Rights wing group, but the Tribunal member without any finding rejected his claim and disbelieved his case for the protection visa.
(7) The Tribunal member was very much confused about the claims of the applicant and did not believe that he is a credible witness.
(8) The applicant has well-founded fear of persecution for the Convention reasons.”
It is clear that these documents are not the most elegant examples of the pleader’s art.
The matter was given a directions hearing before the Registrar on

19 March 2003. The applicant attended by his solicitor. Orders were made in the usual form which provided for the applicant to file and serve an amended application and any evidence upon which he proposed to rely on or before 16 April 2003 and for the applicant to file and serve written submissions five working days to the hearing date.

A hearing date was set down on 16 September 2003 some five months later. No amended application or affidavit was filed or served.
At 7.58pm on 15 September 2003 a fax transmission was received from the applicant’s solicitor. It contained submissions by counsel for the applicant, which were two pages in length. The respondent’s solicitors received the same fax and the submissions were drawn to the attention of counsel for the respondent after 9am on the day of the hearing. The submissions by counsel are as follows:
“(1) Jurisdictional Error by virtue of breach of section 359A and 362A of the Migration Act. At page 4 of its Decision and Reasons given on 30^th December 2002 the Tribunal indicated that “it has had regard to the material referred to in the Delegate’s decision, and other material available to it from a range of sources.”
The Applicant has been disadvantaged because he does not know what case he has to meet and is left in doubt as to what matters were considered by the Tribunal.”
The submissions then go on in paragraph two to quote from Awan v Minister for Immigration [2002] FCA 594 at [161] and [162]. The submissions then finish with paragraph three in the following form:
“It is anticipated that the appellant will give evidence that he did not receive any documents from the Tribunal by way of copies of written material that they had received. It is submitted that due to firstly the ambiguity contained within the Tribunal’s reasons as to what documents the Tribunal had regard to, together with the fact that he did not receive copies of any such documents that there have been an instance of statutory procedural unfairness amounting to jurisdictional error.”
In his opening counsel for the applicant stated there were two issues which arose from the fact that the information relied upon by the Tribunal was in excess of that drawn to the applicant’s attention in letter which is found at [CB 26]. The issues which arose were:
(1)Is there a breach of s.359A?
(2)The identification of what the Tribunal had available to it which it considered.
Counsel then submitted the material relied upon by the Tribunal was considerably in excess of material in the letter which meant that there had been no compliance with s.359A of the Migration Act 1958 (Cth) (“the Migration Act”). He then went on to argue that because of the use of the phrase “the Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources” the applicant was left wondering what material was available but not referred to which might have influenced the Tribunal’s decision. The applicant wanted to know why these matters had not been put to him for comment. At the end of the day counsel for the applicant agreed that his sole ground for seeking review was that the phrasing of the sentence just referred to left the applicant in a position where he did not know what was relied upon or whether the information referred to by the Tribunal between [CB 70 and CB 80] was the information or the totality of it.
Mr Smith who appeared on behalf of the respondent, argued that the grounds put forward by the applicant’s counsel at the hearing were not grounds which had been set out in the original application. Mr Levet said that he disagreed with this and that the submission was encompassed within the application because if the Tribunal took into account information of which the applicant was not aware it took into account irrelevant information.
I think there is much force in Mr Smith’s argument that the applicant should not be permitted to raise this issue when he had, through his legal advisers, ignored the orders of the court. There is really no excuse for legal advisers who have six months to prepare a case to provide counsel for the respondent with a set of submissions on the morning of the hearing and then offer to amend the application to fit in with those submissions. But I do not think that in the end anything will be gained from dismissing the case on this basis. Luckily, Mr Smith who has considerable experience and much skill in matters of this nature, represented the respondent. He was able to meet Mr Levet’s arguments and I was able to hear the case as if it had been properly pleaded and the orders of the court had been properly complied with.
The first point made by Mr Smith was that Mr Levet had bound himself to the wrong section of the Act. Section 359A applies to Migration Review Tribunal and not to the Refugee Review Tribunal which is bound by s.424A. That section is in the following form:
Applicant must be given certain information
(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)if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(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)    that is non-disclosable information.
Mr Smith argued that as he understood the applicant’s submissions the breach of s.424A(1) appeared to be in the failure of the Tribunal to send to the applicant a letter in the form similar to that sent to the applicant by the Department and found at [CB 26]. Mr Smith argued that if this was the complaint then the applicant had applied the wrong test because a failure to comply with s.424A(2) which sets out how the information is to be provided has been found by the Full Bench of the Federal Court not to constitute a jurisdictional error: NAHV v Minister for Immigration [2003] FCAFC 102 at [23].
Mr Smith went on to argue that in any event the applicant had not established that the Tribunal did not provide particulars of information that it considered would be part of the reasons for the decision under review in some other manner. The decision sets out in some detail the discussion between the Tribunal and the applicant in which a number of matters were put to him.
The respondent also pointed to the requirements of s.430(1) which is in the following form:
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; an
(b)sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
The Tribunal had complied with s.430(1)(d) by setting out on over ten pages the country information that it relied on. There is no evidence, not even a suggestion raised by anything in the court book, that the Tribunal considered other information as well.
Finally, and to my mind most effectively, the respondent referred to the exemption found at s.424A(3). The nature of information 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 was considered by the Full Bench of the Federal Court in VHAJ v Minister for Immigration [2003] FCAFC 186 where Kenny J at [50] said:
“In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act: see, eg., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and "W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ("VEAJ of 2002"), at [36]-[38], and [43] per Gray J.”
And at [51]:
“These decisions should be contrasted with the decision in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 ("Baig"). In Baig, Gray J held that information in Agence France Presse was not "just about" a class of persons of which the applicant or any other person was a member. At [33] his Honour said:
Section 424A(1)(a) is expressed in terms of the Tribunal's subjective view: if the Tribunal `considers' that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why [it is] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant's claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant's involvement in campaigning in a by-election.”

I am satisfied that the information used by the Tribunal to come to its conclusions between [CB 80 and 81] was information about a class of persons of which the applicant was a member or claimed to be. The information was not used in the way such information had been in used in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380. I am satisfied that if the Tribunal’s obligations under s.430 are read together with its obligations under s.424A there can be no question that the use of the phrase “other material available to it from a range of sources” could reasonably lead the applicant in this case to the conclusion that there was material which was particularly relevant to him that had been taken into account by the Tribunal without giving him an opportunity to comment. I am satisfied that such country information that was used fell within the exemption in s.424A(3) in any event.
For these reasons the application must fail. I dismiss it. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,500 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: