SZBJH v Minister for Immigration

[2009] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 473

MIGRATION – Review of the decision of the Refugee Review Tribunal – whether the contents of a letter “would be” the reason or part of the reason for affirming the decision under review pursuant to s.424A – whether the contents of a letter were “information” pursuant to s.424A – Tribunal’s letter discharged its obligations under s.424A – contents of a letter not “information” as distinct from the letter itself – Tribunal’s adverse view of contents of a letter not “information” – findings open to Tribunal on what was before it – Tribunal put to applicant issues dispositive of review – Tribunal did not misunderstand or misapply relevant law – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424, 425, 91R(1)(a)

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 72 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 SZLPJ  v Minister for Immigration & Citizenship [2008] FCA 1721 SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486 VAF v Minister for Immigration and Multicultural and Indigenous Affairs 206 ALR 471 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 SZLRJ v Minister for Immigration and Citizenship [2008] FCA 1714 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Chen Shi Hai v Minister for Immigration and Ethnic Affairs (2000) 201 CLR 293 Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

Applicant:

SZBJH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2903 of 2008

Judgment of: Nicholls FM

Hearing date: 24 March 2009

Date of Last Submission: 24 March 2009

Delivered at: Sydney

Delivered on: 28 May 2009

REPRESENTATION

Appearing for the Applicant: Mr A Silva

Solicitors for the Applicant: Silva Solicitors

Counsel for the Respondents: Mr J A C Potts

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 10 November 2009, and amended on 24 March 2009, is dismissed.

2. The applicant pay the first respondent’s costs as agreed or as taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2903 of 2008

SZBJH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 10 November 2008, and ultimately amended by a second further amended application on 24 March 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 14 October 2008, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of India who arrived in Australia on 3 July 2001 and applied for a protection visa on 10 August 2001 (CB 12 to CB 27).  The application was refused on 28 June 2002 (CB 28 to CB 36).  He applied to the Tribunal for review of this decision on 26 July 2002 (CB 37 to CB 40).

2. The application for review has had a long history before the Tribunal:

   1)On 5 August 2003 the Tribunal (as it was then constituted – “T 1”) handed down its decision to affirm the delegate’s decision (CB 51 to CB 79).

   2)The decision was found to be infected by jurisdictional error and an order, amongst others, was made by this Court, that the matter be referred to the Tribunal to be heard and determined in accordance with the law (see SZBJH v Minister for Immigration [2005] FMCA 669, see also CB 81 to CB 95).

   3)At some time in November 2005 the Tribunal received a letter (dated 8 September 2005) apparently from the Consulate-General of India in Sydney in the following terms (see CB 96):

   “This is to state that it has come to our attention that Mr [the name of the applicant] – D.O.B 15.02.1954, Passport number [provided] has an application pending for refugee status.

   When this application is determined could you notify the Consulate General of India of the outcome.

   [Name of Consular officer]

   Consul (Consular)

   Consulate General of India

   Sydney”

   4)The Tribunal responded by letter dated 2 December 2005 refusing to divulge the information requested (CB 97).

   5)On 18 December 2005 the Tribunal (again, differently constituted – “T 2”), handed down its decision, again, to affirm the delegate’s decision to refuse a protection visa to the applicant (see CB 98 to CB 116).

   6)This decision was also quashed and returned to the Tribunal by orders made by consent by this Court on 28 November 2006 (see CB 117).  This was said to be because the Tribunal appeared to have failed to take into account a relevant consideration, namely, the letter from the Consulate-General of India.

   7)On 21 February 2007 it appears that an employee of the Tribunal communicated with the Indian Consulate-General seeking information about the letter (see CB 121 to CB 122).  (I note, in particular: “you will note that to protect the privacy of the applicant the name and passport number have been obscured”.)

   8)The response from the Consulate-General dated 22 February 2007, is reproduced at CB 120:

   “It is a fake letter with forged signatures and forged letter head.

   In order to take necessary precautions and to safeguard ourselves from such forgeries, could it be possible for you to also keep us informed of the identity of people involved in such rackets?

   Looking forward to your positive reply.”

   9)By letter dated 22 February 2007 a Tribunal officer (in the circumstances, at the direction of yet another differently constituted Tribunal – “T3”. See CB 134.1) wrote to the applicant (presumably pursuant to s.424A of the Act – the letter is headed: “Invitation to Comment on Information”). Relevantly, the letter states (CB 122):

   “As you are aware and as discussed in the course of the hearing on 19 February 2007, there is a letter dated 8/9/05 before the Tribunal alleged to be from the Consulate General of India, Sydney.  Subsequent to the hearing and without revealing any identifying details about you (or anyone else), the Tribunal has sought information from the Consulate.  The Consulate has advised the Tribunal that the letter is a forgery; the Consulate advised that the letter is fake with forged signatures and forged letter head.

   This information concerns the Tribunal as it could suggest that you could have been involved in sending to the Tribunal a forged document to support your claim that you are of interest to the Indian authorities.

   This information is relevant because it may raise doubts about your credibility and the veracity of your claims.  It could also mean that the Tribunal will not give any weight to the letter[.]

   You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 20 March 2007.”

   10)The applicant responded in writing on 14 March 2007 and in the strongest of terms rejected any allegation of involvement. Amongst other things, he stated (CB 124):

   “I DID NOT SEND, OR I WAS INVOLVED IN SENDING THAT LETTER IN QUESTION.  THE SUGGESTION MADE BY THE TRIBUNAL IS WRONG AND FALSE.  ‘I VEHEMENTLY DENY.”

   11)By letter sent on 13 April 2007 the applicant was notified of the decision of the Tribunal (“T3”), which also affirmed the decision to refuse the applicant a protection visa (CB 126 to CB 139).

   12)A subsequent application for judicial review was dismissed at first instance on 31 July 2007 (CB 140 to CB 156).

   13)An appeal to the Federal Court was allowed (CB 158 to CB 172), and the matter was returned to the Tribunal yet again.

   14)The “fourth” Tribunal (the Tribunal that made the decision that is currently under review in this Court – “the Tribunal”) wrote to the applicant by letter dated 29 May 2008 (CB 173).  The letter was headed: “Invitation To Provide Information in Writing”.   

   15)On its face, this would suggest that this was a letter sent pursuant to s.424, and not s.424A, particularly as the Tribunal also stated:

   “You are invited to provide the following additional information”.

   [Emphasis added]

   16)Relevantly, the letter also stated:

   “Any further comments you may wish to make in relation to the Tribunal’s receipt of a forged letter in 2005, purportedly from the Indian Consulate General, concerning you.  In this regard, you should be aware that the Member now considering your case may not necessarily take the same view as that of the previous member, and could possibly draw an adverse view of your credibility arising from the receipt of this letter.”

   17)The Tribunal’s letter provided for “the additional information” to be provided by 24 June 2008 (CB 173).

   18)On 27 June 2008 the applicant’s solicitors sought an extension of time (CB 175), and ultimately responded on 1 July 2008, relevantly as follows (CB 177):

   “In relation to the letter purportedly sent from the Indian Consulate our client has at all times denied that he was involved in writing the letter.  Or indeed, sending it to the tribunal.

   He believes that the issue has seriously prejudiced his case.”

   19)The applicant appeared at a hearing before the Tribunal for the fourth time on 5 September 2008 (CB 182). (He had appeared at hearings before each of the three previously constituted Tribunals.) This hearing was conducted by the member who made the decision currently the subject of the review before this Court.

   20)The Tribunal’s decision record contains reports of all four hearings conducted by the Tribunal, as differently constituted.  At the hearing conducted by the Tribunal on the last and fourth occasion the issue of the letter purportedly from the Indian Consulate-General was raised (see CB 219.5 to CB 220.2). 

The applicant’s claims to protection

1. The applicant’s claims to protection, ultimately before the Tribunal, were that the applicant sought protection in Australia because he feared harm if he were to return to India in that he would be persecuted by Hindus because of his Sikh religion, and by supporters of political parties opposed to Sikhs.  

2. The specific circumstances giving rise to these fears were said to be that the applicant became the target of a jealous neighbour (and his supporters) who wanted to annex the applicant’s land, and who acted against him because of political and religious reasons, and because of membership of a particular social group, that he had been attacked as part of a campaign of harassment against him, that the police, instead of assisting him, accused him of being a “Sikh terrorist” and, far from providing protection to him, became part of the persecution against him.

3. The Tribunal found:

   1)Despite some doubts about the relevant factual basis of the applicant’s claims, that: “his neighbour does wish to take over his land and had a dispute with him about this” (CB 223.2).

   2)Accepted that the neighbour harassed and threatened the applicant, and influenced others in harassing him to leave his home.  Further, that the neighbour: “induced police not to accept complaints by the applicant about this harassment” (CB 223.3).

   3)Accepting this, the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB 223.4).

   4)The Tribunal’s reasoning in support of this was (at CB 223.4):

   “Although the applicant’s neighbour is a Hindu, and is said to be a member of Shiv Sena and has contacts and influence with Shiv Sena and Bajrang Dal, the applicant’s evidence (taken in its entirety) does not suggest that the essential and significant reason the neighbour, or persons acting for him, (whether of their own volition or as the result of an explicit request), targeted the applicant because of his Sikh religion, because of his socio-economic position related to his caste and perceived wealth, or because of any political opinion he held or which may have been attributed to him as a Sikh.  Indeed, the applicant said that the police who allegedly detained and beat him were not exclusively Hindu, but included Sikhs as well.”

   5)The Tribunal also found (at CB 223.8 to CB 224.1):

   “… that the physical assaults and threats, and other actions taken against the applicant (and/or his family) by the people the applicant described as supporters of Shiv Sena and Bajrang Dal, and by local police, arose because those people sided with his influential neighbour, and not because of any issue of religion, political opinion, socio-economic position or any combination of these.

   The Tribunal having made the findings in the previous three paragraphs, it finds that the essential and significant reason for any harm the applicant claims to fear is not because of his religion or his membership of any ‘particular social group’ whatsoever, including ‘wealthy landowners’ or ‘Sikh’ (or ‘Punjabi Sikh’ or ‘Punjabi Sikh Jatt’) landowners.”

   6)The Tribunal “noted” the applicant’s claims that police accused him of being a Sikh terrorist, but also noted (at CB 224.3): “his evidence was that this was merely an excuse to justify the harassment on the neighbour’s behalf”. 

   7)The Tribunal also found (at CB 224.5):

   “On the basis of the evidence before it, the Tribunal finds that any attempts at obtaining bribes were motivated by general corruption and greed on the part of the police (as referred to, for example, in the applicant’s most recent submission – see paragraph 156 above) and not because of any Convention reason related to the applicant’s religion, or socio-economic position.”

   8)Ultimately, the Tribunal found that (at CB 224.6):

   “ … any failure on the part of Punjabi police to protect the applicant against his neighbour and those acting on his neighbour’s behalf does not arise from any Convention reason.”

   9)The Tribunal also turned its mind in its analysis to the issue of the purported letter from the Indian Consulate-General (but see further below). 

Application to the Court

1. The applicant’s grounds were ultimately put before the Court by way of a second further amended application, for which leave was granted to be filed in Court (with no objection from the respondent).  They are in the following terms:

   “Ground 1

   1.The Tribunal made jurisdictional error as it denied procedural fairness to the applicant under s.424A.

   Particulars

   (a)The Tribunal was required to provide to the applicant under s.424A certain specific information in writing before considering that the letter purportedly from the Indian Consulate was fabricated on behalf of the applicant. This was not done.

   This specific information (CB 225.1 – para 182) was that:

   The letter purportedly from the Indian Consulate General refers to the application pending before the Tribunal and identifies the applicant by name, date of birth and especially, passport number[.]

   CB 225.2 – para 183 – ‘The Tribunal considers that the most likely explanation is that the letter was fabricated on the applicant’s behalf and submitted to the Tribunal for the purpose of strengthening his claim that the Indian authorities are interested in him …’

   We submit that the applicant could have explained why a number of people would have had access to this information.  The tribunal’s attitude regarding the fraud issue would have definitely affected the applicant’s overall credibility in the mind of the Tribunal.  [The] Tribunal should have been aware of the fact that an allegation of fraud is a very serious matter.

   (b)Having chosen to give the applicant adverse information orally at the hearing, the Tribunal failed to ensure, as far as is reasonably practicable, that he understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review, as required by s.424AA(b)(i).

   (c)Having chosen to give the Applicant adverse information orally at the hearing, the Tribunal failed to clearly advise the Applicant that he may seek additional time to comment on or respond to that particular information, as required by ss.424AA(b)(iii).

   [The parties subsequently agreed that s.424AA does not apply to this matter and particulars (b) and (c) above were not pressed by the applicant.]

   2.The Tribunal made jurisdictional error as it held that the harm suffered by the applicant is not Convention related.

   Particulars

   (i)at CB 222.4 (page 28.4 – para 166) the Tribunal accepted that the applicant was harmed by the police and the supporters of political parties Shiv Sena & Bajrang Dal.  The Tribunal should have asked (a) Why were the political parties involved? (b) Would the political parties become involved, if the applicant had been a member/supporter of Shiv Sena & Bajrang Dal? (c) Would these political parties have become involved if he had been a Hindu?. [sic]

   The question is why would political parties get involved if the matter is only private?. [sic] He was imputed a political opinion of not belonging to their political group of political interest and that is why they were willing to harm him.  Thus the Tribunal’s finding at CB 223.2 (page 29.2 – para 171) that ‘the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a convention reason’ is legally erroneous.  Also see para. 175.

   (ii)The Tribunal also took an irrelevant matter into consideration regarding the Convention reason.

   In para. 173 & 174 (CB 223.5) the Tribunal refers to the applicant’s brother who has a land somewhere else and not adjoining the neighbour, not being harmed by the neighbour who was persecuting the applicant.  However there is nothing to show that they had any dealings or had anything to do with each other.

   3.The Tribunal made jurisdictional error as it made a finding without asking a question it should have asked the applicant during the hearing and thus breached s425(1) of the Act[.]

   Particulars

   At para. 174 (CB 223.8 – page 29.8) the Tribunal held that:

   … … However, there is nothing before the Tribunal to suggest that the neighbour has caused any problems for any other Sikh in the neighbourhood, whether Jatt or otherwise, or landowner or otherwise …

   If this was an important issue that arose in relation to the decision under review the Tribunal should have asked the applicant about it as required by s425(1).

   4.The Tribunal made jurisdictional error as it misunderstood what is meant by Convention reason[.]

   Particulars

   The Tribunal held that when a persecutor openly attributes [to] someone a political opinion (such as terrorist) as the reason for harming him knowing that, that person do [sic] not have that political opinion, then that persecution is not on the basis of political opinion, imputed or other otherwise.  Whereas [the] correct legal position is that once someone is openly attributed a political opinion as the motivation for the harm caused to him, the mental state of the attributor is immaterial to the Convention reason.

   At para. 177 (CB 224.1 – page 30.1) the Tribunal held that:

   In reaching these conclusions, the Tribunal has noted the applicant’s claims that police accused him of being a Sikh terrorist.  However, his evidence was that this was merely an excuse to justify the harassment on the neighbour’s behalf …..”

Before the Court

1. The Court also has before it for the applicant the affidavit of Sylvia Nicholas Silva, an employee of Silva Solicitors, made on 23 January 2009 annexing a transcript (“T”) of the hearing before the Tribunal held on 5 September 2008 (the fourth hearing before the Tribunal as “fourthly” constituted), and also written submissions filed on behalf of the applicant.  For the respondent, the Court has a Response, and the first respondent’s outline of submissions prepared by Counsel.

2. At the hearing before the Court the applicant was represented by Mr A Silva of Silva Solicitors.  The first respondent was represented by Mr J A C Potts of Counsel. 

Ground One

1. In ground one of the applicant’s second further amended application, the applicant asserts jurisdictional error on the part of the Tribunal, namely, that the Tribunal breached its obligations pursuant to s.424A. I note that the applicant did not press, nor rely, on particulars (b) and (c) to this ground.

2. With reference to particular (a), I understood the complaint to be that the Tribunal relied on information before it, described as information in the letter purportedly from the Indian Consulate-General (see the letter reproduced at CB 96).

3. The applicant’s argument is that what is contained in the letter (that is, details that were personal to the applicant – the “personal particulars”) was information that “would be” part of the reason for affirming the decision under review, and that it should have been put to the applicant, in writing, pursuant to the obligation in s.424A(1) of the Act.

The Applicant’s Submissions

1. The applicant referred the Court to the Tribunal’s letter of 29 May 2008 (see CB 173. See also [3.14] above and, specifically, to that part of the letter as reproduced at [3.16] above). The submission was that the inference to be drawn is that the only “information” conveyed to the applicant by this letter was that the Tribunal was in receipt of a “forged letter”.

2. Further (with reference to the transcript of the hearing provided by the applicant), prior to, but at least by the commencement of, the hearing that the Tribunal conducted with the applicant on 5 September 2008, the applicant’s “personal information” (the “personal particulars”) was: “at issue”. That is, the information contained in the purported letter from the Indian Consulate-General (the applicant’s name, date of birth, his passport number and that he had an application for refugee status pending – see [3.3] above).

3. Mr Silva relevantly referred to the following part of the transcript (T 9.5):

   “[The Tribunal Member]: I now want to talk about this letter that the tribunal got and which was supposed to have come from the Indian High Commission. You were previously given information indicating that the tribunal’s inquiries indicated that the letter was a forgery and had not been sent by the high commission.

   INTERPRETER [the Applicant]: I don’t know whether - I didn’t say that it is a fraud, but when they gave us the letter, my agent found the letter within all the letters that were given to us.

   [The Tribunal Member]: I understand that. I understand that. I mean, I’ve looked at the letter myself. I have to say that if I’d been the person dealing with it when the letter was first received, at first glance I would have said, “This is a forgery.” I would not have believed it came from the high commission. But you, in your recent letter, re-raised the issue and said that it indicated the Indian authorities were adversely interested in you. So I want to know, you know, if you can tell me why you still believe that to be the case.

   INTERPRETER [the Applicant]: I didn’t say these things. I didn’t say that the council is against me or there are any enemy with me. I am not against the government, or I am not a, you know, anti-government.

   [The Tribunal Member]: But I still - I put you on notice with a letter that I might not take the same view as the previous member about the possibility that this letter was arranged by you or someone on your behalf, and I received your comments through your agent denying that.

   INTERPRETER: I’m a little bit lost.

   [The Tribunal Member]: Okay. The previous tribunal member took the view that nothing negative should be held against you over the fact of that forged letter having been received. I thought it was important to alert you in a letter that we sent that of course, me being a different person, I might not necessarily take the same view, and it would be possible that I might conclude that you sent the letter, or you arranged for it to be sent. Your agent replied on your behalf denying that possibility. And I’ve read that, and I’ve taken account of that.

   But I can’t see how anybody else other than yourself or somebody acting for you would know firstly that you had an application before the tribunal, and secondly be able to write a letter identifying you by name, by date of birth, and your passport number. So that’s why that possibility is open to me. I’m sort of trying to ask myself, “How would anybody else know your name, your passport number, your date of birth, and the fact that you had an application before this tribunal?”

   INTERPRETER [the Applicant]: I would ask you to ask me small questions so that I can tell you, otherwise I will forget them.

   [The Tribunal Member]: Okay, just simply, I’m trying to find out, I’m trying to ask myself, “Who else could have sent such a letter to the tribunal but you, or someone doing it for you?”

   INTERPRETER [the Applicant]: In the letter you would have seen there is no date of birth, no passport number.

   [The Tribunal Member]: No, there is.

   INTERPRETER [the Applicant]: I understand nothing was there. I don’t think even my name is there. You would have..(not transcribable)..numbers not or anything. I think it is not there.

   [The Tribunal Member]: I’ll find it. I just have to remember at what stage it came. I think it’s in this file, so I’ll just have a look. Here is the letter. It says, “This is to state that it is come to our attention that Mr [the Applicant], date of birth [date], passport number” – such and such – “has an application pending for refugee status.”

   INTERPRETER [the Applicant]: The previous member had not told me all this. I didn’t know about it.

   [The Tribunal Member]: But you had a copy of it. Or your solicitor did.

   INTERPRETER [the Applicant]: It might be held. The last member, previous member, told me that they had got a letter.

   [The Tribunal Member]: Okay, but there it is. That’s the point. What I’m asking you is who but you or someone you knew working, doing things – would know all that information?

   INTERPRETER [the Applicant]: I have done nothing. I am illiterate person. I have come from Griffith to Sydney for this hearing only. I have never been to the embassy.

   [The Tribunal Member]: You wouldn’t have to go to the embassy. That’s the point. As I say, I think ---

   INTERPRETER [the Applicant]: I have not done anything on this. My opponent, if he could have done this, that may be a possibility. But I have not done anything. Why I would give myself that who am I and where I’m living.”

4. Mr Silva’s submission was that any plain reading of the transcript reveals that the Tribunal considered, and had in its mind, that the information contained in the letter (that is, the fact that it contained personal details or personal particulars about the applicant), would be the reason for affirming the decision under review, and should have been put to the applicant pursuant to s.424A(1).

5. Mr Silva submitted that the Court should infer that the Tribunal, in preparing the case for hearing, would have already had this in its mind prior to, or at least from, the beginning of the hearing.

6. The importance of this point, according to Mr Silva’s submissions, is that because the letter contained personal details which only the applicant could have known, the claim that the letter was a forgery could be linked to the applicant himself (that is, that the applicant had forged the letter). This was ultimately damaging to the applicant’s credibility.

7. While Mr Silva sought to subsequently rely on authority that the determination of what “would be” information caught by the obligation in s.424A(1) should occur in advance of, and without reference to, the Tribunal’s reasons for decision, if reference were to be made to these reasons, in any event, it would reinforce his argument.

8. In particular, Mr Silva referred to paragraphs [180] and [181] of the Tribunal’s decision record (CB 224.8) and, further and particularly, to [182] and [183]. (See further at [29] below.)

9. In support of his submissions, Mr Silva relied on the following authorities:

   1)SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17] for the proposition that what “would be” the reason, or part of the reason, for affirming the decision under review is to be determined in advance of the Tribunal’s published reasons. That is, the Court should not look at those reasons. Rather, it is to be determined at the time that the “issue” is formulated in the mind of the Tribunal.

   2)In particular, Mr Silva relied on SZBYR at [17]:

   “…The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case …”

   3)This was followed in MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319 (“MZXBQ”) per Heerey J, a matter in which information relating to a “bond” was referred to by that Tribunal at that hearing, but there was no reference to this issue in a “section 424A letter” sent by the Tribunal. In particular, Mr Silva referred the Court to MZXBQ at [30]:

   “… Post-SZBYR the correct approach would have been for the Tribunal to consider whether the $20,000 bond information, if true, would be the reason, or part of the reason, for affirming the decision to refuse the appellant’s protection visa application …”

   4)SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 (“SZMFZ”) (per Siopsis J):

   At [36]:

   “It follows that it is the relationship which the information in question has to the content of the Convention claim made by the applicant before the Tribunal that is a significant consideration in determining whether it is information in respect of which s 424A(1) applies. Further, the assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information …”

   At [38]:

   “…Further, I infer from the fact that the Tribunal was able to, and did, ask the appellant questions about this information at the hearing, that it was aware of this information by the commencement of the hearing.”

   At [39]:

   “…Further, I infer from the obvious adverse nature of the content of the information and from the fact that the Tribunal used it in the course of the hearing to question the veracity of the claim made by the appellant that she was financially stressed, that, at least by the time of the commencement of the hearing, the Tribunal considered that the information would be part of the reason for affirming the decision of the delegate to refuse the application for the protection visa.”

   At [40]:

   “It follows from those findings, and from the application of the principles referred to in SZBYR and MZXBQ, that by the commencement of the hearing the information was of the character that fell within s 424A(1) and that, therefore, the Tribunal was obliged to comply with s 424A(1) or take the alternative steps open to it under s 424A(2A) and s 424AA. It is accepted by the first respondent that the Tribunal did not advise the appellant of the information in writing ...”

10. Mr Silva’s submission was that s.424A is engaged when the Tribunal becomes aware of information that would be the reason, or part of the reason, for affirming the decision under review. He understood this to mean that the point in time at which the Tribunal becomes aware, in its own mind, of the importance of the information. He submitted that what is to be drawn from SZMFZ is that the Court should not look at the Tribunal’s reasons for decision. That the section 424A letter should be sent after the hearing, even where an inference can be drawn that an awareness of the information would have arisen at the commencement of the hearing, and where the applicant’s “veracity” is tested at the hearing – the inference being that this information “would be” a part of the reason.

11. Mr Silva also sought to distinguish what was said in SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 (“SZMPT”) (per Jacobson J) at [15]:

    “But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal.”

12. The submission was that the “information” in question in SZMPT was not “mentioned at hearing”, or in any other document generated by the Tribunal, and that presumably, therefore, there was no point in time at which it could be said that circumstances arose where “information” could be identified as falling within the requirement that it “would be” (considered by the Tribunal) the reason, or part of the reason, for affirming the decision under review.

13. Mr Silva also referred the Court to SZMPT at [16], where (in referring to the proposition derived from SZBYR)  his Honour said:

    “It seems to me that this proposition would be contrary to what the High Court said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 72; (2005) 225 CLR 88 at [12].”

14. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 72 at [12] the High Court said:

    “It is as well to explain why that was so. As for s 424A, it is enough to notice that that provision is directed to "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The Tribunal said, in its reasons, that it did not act on the letter or the information it contained. That is reason enough to conclude that s 424A was not engaged. A little more must be said about s 438.”

15. In all, Mr Silva submitted that Jacobson J distinguished the circumstances in the case before him from the circumstances in the case before Heerey J. That the proposition that can be derived from this is that if an issue (I understood this to be a reference to “information”) is mentioned at the hearing, then one cannot look at the Tribunal’s reasons in determining what information “would be” part of the reason for affirming the decision under review. Conversely, one may consider the Tribunal’s reasons if this “issue” (“information”) was not mentioned at the hearing. 

16. Mr Silva also submitted (despite what he had submitted above) that, in any event, even if regard were to be paid to the Tribunal’s reasons in the current case, this would show that the relevant “information” was a part of the reason for affirming the decision under review.

17. He referred the Court to paragraphs [180] and [181] of the Tribunal’s decision record (CB 224.8 to CB 224.10) and, further, in particular, to CB 225.1 to CB 225.4:

    “182. Having found the letter to be fraudulent, it does not accept that it is evidence that the applicant’s neighbour wrote about him to the Indian authorities (see paragraph 114 above). Nor does the Tribunal accept that the letter was sent by his enemies (see paragraph 118 above) to try to “frame” him. The Tribunal can think of no reason why anyone other than a person acting on the applicant’s behalf would be aware that he had an application before the Tribunal and would be in a position to fabricate a letter identifying the applicant by name, date of birth and, especially, passport number.

    183. The Tribunal considers that the most likely explanation is that the letter was fabricated on the applicant’s behalf and submitted to the Tribunal for the purpose of strengthening his claim that the Indian authorities are interested in him. However, the Tribunal makes no finding to that effect, as it is not necessary to do so, given its earlier findings.”

18. I understood Mr Silva’s argument on this point to be that the Tribunal came to the conclusion that the applicant’s claims as they related to his neighbour were not Convention-related (see CB 223 at [173] to [174]), and that the reason that the Tribunal reached this conclusion was that it did not believe some of the things that the applicant said. That is, it took an adverse view of his credibility. In this regard, the view that the Tribunal took as to the applicant’s perceived role in the “fraudulent” letter influenced, and formed part of, its adverse attitude towards the applicant’s credibility.

19. In all, therefore, the applicant’s position is that the information that the letter was a forgery and that it contained personal particulars, was information that it should be inferred became apparent, prior to, or at least by the commencement of, the hearing, that “would be” the reason, or part of the reason, for the Tribunal affirming the decision under review. As such, this information should have been put to the applicant pursuant to s.424A(1) as it did not fall within any of the exemptions to that obligation.

20. Further, the position was that while the information that the letter was a forgery was put to the applicant by way of a “section 424A letter”, the information that the letter contained personal particulars had not been put to the applicant in writing, and that this constituted jurisdictional error on the part of the Tribunal. 

The Respondent’s Submissions

1. In reply, Mr Potts submitted that there were a number of complete answers to the applicant’s complaint.

2. The first was to be found with reference to the letter sent by an earlier constituted Tribunal (T3) on 22 February 2007 (CB 122), which invited the applicant to comment on certain information, and was clearly sent pursuant to s.424A. (In particular, see the terms of this letter set out at [3.9] above.)

3. Notwithstanding that this letter was sent by an earlier constituted Tribunal, the Minister relied on the authority of SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 (“SZEPZ”) (per Emmett, Siopsis and Rares JJ) for authority that by sending this letter, which referred to the “forged” letter allegedly from the Indian Consulate-General and referred to the possibility of drawing an adverse inference as to the applicant’s credibility (drawn from the personal particulars being known only by the applicant), the Tribunal discharged its obligations pursuant to s.424A(1).

4. Mr Potts submitted, in response to the Court’s question, that SZEPZ is directly on point in that it deals with s.424A. The “strong suggestion” to be drawn by relying on SZEPZ is that T3’s letter was part of the review ultimately concluded by the decision made by the Tribunal member whose decision is currently before this Court. This is to be preferred to other authorities such as SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 for example, which should be distinguished on the basis that they deal with whether a reconstituted Tribunal should provide a second hearing pursuant to s.425.

5. In short, Mr Potts’ submission was that the Full Court’s judgment in SZEPZ is at least strongly suggestive that a procedural step, such as the sending of a section 424A letter, even if sent by a Tribunal member as previously constituted, is still capable of having effect for the purposes of the completion of the review by a subsequently constituted Tribunal.

6. In effect, there is only one review in the circumstances of this case. One complete answer to the applicant’s complaint, therefore, is that the terms of this letter, as reproduced above (see [3.9] above) discharged the Tribunal’s obligations pursuant to s.424A(1).

1. Mr Potts also submitted that a second complete answer to the applicant’s complaint is to be found with reference to the letter dated 29 May 2008 sent by the Tribunal, which does discharge the obligation under s.424A(1) (reproduced at CB 173 and see also [3.14] to [3.17] above).

2. That although this letter is couched in terms of: “Invitation to Provide Information”, and to: “provide the following additional information”, nonetheless, the part of the letter dealing with the “forged” letter specifically seeks comments in relation to the relevant information:

   “Any further comments you may wish to make in relation to the Tribunal’s receipt of a forged letter in 2005, purportedly from the Indian Consulate General, concerning you. In this regard, you should be aware that the Member now considering your case may not necessarily take the same view as that of the previous member, and could possibly draw an adverse view of your credibility arising from the receipt of this letter.”

3. A third answer (and one that also informs, in part, the first and second “answers”) is to have regard to what constitutes “information” for the purposes of s.424A(1).

4. Mr Potts also referred to the High Court’s judgement in SZBYR. In particular, at [18]:

   “However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”

5. Mr Potts’ submission was that, in light of SZBYR, the relevant characterisation in this case is that the letter itself is the “information” in that it is: “evidentiary material or documentation”. That is, the particular that needs to be disclosed is the document itself – in this case, the letter. 

6. The issue for the Court, as identified by Mr Potts, is that the applicant contends that the information subject to s.424A was the content of the letter. While the Minister contends that the information, consistent with what was said by the High Court in contemplating evidentiary material or documentation, was the fact of the letter itself.

7. The next issue relevant to the “third” answer involved the applicant’s contention that, in resolving this complaint, the Court should ignore the statement of reasons given by the Tribunal. 

8. In this regard, Mr Potts pointed out that even the High Court in Applicant VEAL had no difficulty in reaching conclusions, or drawing inferences from the statement of reasons, about what was not part of the set of reasons in that case. [Although I note that in Applicant VEAL, the High Court was concerned with the requirements of procedural fairness at common law.]

9. Mr Potts’ submission was that the Court is required to engage in a factual enquiry about the state of the Tribunal’s mind at a particular point in time. That is, for the purpose of reaching the understanding as to what is “information” that “would be” the reason, or part of the reason, for affirming the decision under review.

10. The Minister’s position was that in conducting this exercise, the Court is required to examine and draw inferences from any, and all, of the surrounding evidence before it. The Court is not precluded from looking at the Tribunal’s reasons in this process.

11. The respondent’s position was that SZBYR does not render impossible an examination of the Tribunal’s reasons. However, if regard is to be had to the reasons, this must be done for the purpose of drawing an inference about what the state of mind of the Tribunal was at some antecedent point in time. The High Court’s emphasis on the words “would be” (SZBYR at [17]) means that the relevant point in time to assess the need to comply with s.424A is at some antecedent point in time (that is, antecedent to the published reasons).

12. In answer to the applicant’s position, therefore, in examining whether s.424A is engaged, reference can be had to the decision record. So long as that reference comprehends that it is for the purpose only of drawing inferences in informing as to what “would be” the reason or part of the reason at some earlier point in time.

13. The applicant relies on SZBYR (at [17]) and MZXBQ (at [30]) for the proposition that no regard can ever be had to the published reasons in resolving this issue.

14. The respondent, in reply, relies on the following authorities to further inform what was meant by the High Court in SZBYR at [17].

15. These “recent” authorities, it was submitted, state that it is permissible to look at the reasons for the purpose of drawing inferences as to the proper characterisation of the “information” in determining whether it forms “part of the reason”.

16. In SZMFZ (also relied on by the applicant) the Court said at [36]:

    “It follows that it is the relationship which the information in question has to the content of the Convention claim made by the applicant before the Tribunal that is a significant consideration in determining whether it is information in respect of which s 424A(1) applies. Further, the assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information.”

17. In SZMPT (which the applicant sought to distinguish on its facts) at [14] to [17]:

    “14. Counsel also submitted that evidence as to what the Tribunal considered to be the reason, or part of the reason, for making its decision may be found in the statement of reasons. The submission continued by stating that when relevant information is not relied upon in the Tribunal’s statement of reasons, an applicant for judicial review will need some other evidence to establish the jurisdictional fact stated in the provision.

    15. In my view, these submissions are correct and are supported by the authorities. It is true that the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Indeed, in SZBYR at [22], the High Court rejected the need for “unbundling” of the Tribunal’s reasons, an approach which had been adopted in authorities of this court such as Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [99], and SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [208]. But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal.

    16. It seems to me that this proposition would be contrary to what the High Court said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 72; (2005) 225 CLR 88 at [12]. In my opinion, the effect of what their Honours said in SZBYR at [22] was that the Tribunal’s reasons are not the starting point for determining whether it considered the information to be a reason for affirming the decision under review. What their Honours said at [22] in SZBYR was that the need for “unbundling” is “correspondingly reduced.”

    17. The question of whether the Tribunal considered the information to be a reason for affirming the decision must be a question of fact. As Siopis J observed in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36]:

    [T]he assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information.”

18. In SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 (“SZLPJ”) (per Perram J) the Court stated:

    “15 Indeed, it appears to be information which is specifically about another person and hence is information which does not fall within the exception contained in s 424A(3). Prima facie, therefore, one might think that s 424A(1) would apply. However, Mr Potts submits that the words of subsection (1)(c) prevent that occurrence taking place. The argument is that, because the Tribunal indicated that it had not in any way taken into account the similar application, s 424A(1)(a) was not enlivened. Strictly speaking, for the reasons explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26; (2007) 235 ALR 609 at 615 [17], s 424A(1)(a) speaks not to the time of the Tribunal’s decision, but rather at some anterior point, at which the Tribunal turns its mind to the particulars which must be provided. For that reason, the strict answer to the question posed by 424A(1)(a) turns to be decided upon an examination of the Tribunal’s state of mind at that anterior point.

    16 The Minister submitted that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 meant that the anterior time is not a single point in time, but in effect is all times which existed up until the moment of the Tribunal’s reasoning process. That may well be so. Ultimately the question is, what inferences can be drawn from the material which was available to the Tribunal. Here, it seems to me to be reasonable to draw the inference that the Tribunal did not at that earlier time or those earlier times, consider that the separate application would be the reason or a part of its reason for affirming the decision that is under review. That is, I accept that the statement about the Tribunal’s present state of mind made when it delivered its reasons is sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time.”

19. In all, therefore, the respondent’s submission in this regard is to start with what the High Court said in SZBYR and that the relevant test is not to be applied by looking first at the Tribunal’s published reasons. But, with reference to recent authorities, it is still permissible to look at the Tribunal’s reasons for the purpose of drawing inferences as to the proper characterisation of the information in determining whether it forms “part of the reason”. That, according to SZMFZ, the relevant point in time for considering whether “information” was regarded by the Tribunal as being likely to be “part of the reason” for affirming the decision under review was the time at which the Tribunal becomes aware of the information. According to SZLPJ, this continues up until the point in time at which the Tribunal makes its decision.

20. The respondent’s submissions in total, therefore, in relation to this ground, provide two answers to the applicant. First, that the Court should not infer that at the relevant time, the Tribunal was of the view that the “specific” “information” (the personal particulars) that the applicant relies upon would be part of the reason for affirming the decision under review. Second, that the Tribunal’s earlier letter of 22 February 2007, and certainly, and separately, that of 29 May 2008, discharged any obligation under s.424A.

Consideration

1. The applicant submits that the Court should draw an inference from the transcript of the hearing before the Tribunal that prior to the hearing, and that certainly at the commencement of the hearing, the Tribunal was aware of the contents of the “forged” letter said to be from the Indian Consulate-General. That is, not only the letter itself but the personal particulars referred to in that letter.

2. That this inference should be drawn with analogy to what was said in SZMFZ at [38]:

   “… Further, I infer from the fact that the Tribunal was able to, and did, ask the appellant questions about this information at the hearing, that it was aware of this information by the commencement of the hearing.”

3. Therefore, having become aware of this “information”, these personal particulars, the Tribunal should have written to the applicant inviting his comments pursuant to s.424A(1). Further, that neither of the Tribunal’s two letters (22 February 2007 at CB 122 – the “first Tribunal letter” or 29 May 2008 at CB 173 – the “second Tribunal letter”) made reference to these “personal particulars”.

4. The submissions did not focus on the fact that the Tribunal had before it two letters – the forgery from the Indian Consulate-General (containing personal particulars relevant to the applicant) and the “real” letter from the Indian Consulate-General, which stated that the first letter was a forgery.

5. Both Tribunal letters made specific reference to the letter dated 8 September 2005 purporting to be from the Indian Consulate-General (the “forged letter”) However, there is no assertion now by the applicant that the Tribunal breached any further obligation in relation to the “real” letter from the Indian Consulate-General. I note, in any event, that this was the subject of the Tribunal’s letter of 22 February 2007. The applicant now makes no complaint in relation to the “real” letter from the Indian Consulate-General.

6. In relation to the “forged” letter and its contents, there can be no argument, in my view, that the Tribunal was “aware” of this letter and its contents, and its relevance, not only at the commencement of the hearing, but earlier. There is no need for the Court to draw any inference from the transcript of the hearing to arrive at that conclusion. That is, that the Tribunal was aware of the letter and its contents at some earlier time. In my view, the transcript of the hearing merely confirms what is evident from other, earlier, sources.

7. The “fourth” hearing before the Tribunal took place on 5 September 2008. But it is clear from the material before the Court that, at least by 29 May 2008, the Tribunal member making the decision that is under review was “aware” of the letter. I note that the Tribunal specifically wrote to the applicant on 29 May 2008 and made reference to the Tribunal’s receipt of the: “forged letter in 2005, purportedly from the Indian Consulate General, concerning you.” (CB 173.5). That this forged letter concerned the applicant in the Tribunal’s view clearly means that not only was it aware of the letter, and that it was forged, but also the contents of the letter.

8. Further, on 5 August 2008, the Tribunal wrote to the applicant and invited him to the hearing on 5 September 2008 (CB 179). In this letter the Tribunal stated:

   “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.”

9. From the material before the Court it can be seen that the information that was before it included the applicant’s representative’s letter of 1 July 2008 (CB 177) which contained the following:

   “In relation to the letter purportedly sent from the Indian Consulate our client has at all times denied that he was involved in writing the letter. Or indeed, sending it to the tribunal.

   He believes that the issue has seriously prejudiced his case.”

10. This letter enclosed a statement made by the applicant himself, which contained the following (CB 178):

    “I submit I was persecuted in India by Indian authorise [sic – authorities] (police) and others. The Consulate General of India wrote to the Tribunal enquiring about my case. This letter indicates that the Indian authorities want to know when my case is finished. This may show that the authorities waiting for me to return.

    The fact that one of the alleged persecutors (Indian authorities) dared to inquire from the Tribunal about my case is very concerning.

    The Tribunal wrote to the Consulate General of India to verify the letter dated 02 December 2005. The letter that the Tribunal is apparently referring to is not even dated 02 December 2005.”

11. In these circumstances, it is not necessary, therefore, to draw any further inference from the transcript of the hearing that the Tribunal was “aware” of this “forged” letter and, in particular, its contents as at the commencement of the hearing. It was.

12. The issue, however, is not whether, or only, that the Tribunal was “aware”, but whether the forged letter and its contents (the “personal particulars”) was “information” (as that term is understood in SZBYR), and whether it “considers” that it “would be the reason or a part of the reason” for affirming the decision under review. This is to be answered with reference to a point in time antecedent to the making of the Tribunal’s decision record. Although I agree with Mr Potts that reference to the decision record may help inform that understanding.

13. Even if the “personal particulars” were “information” for the purposes of s.424A, in my view, the Tribunal discharged its obligation by its letter of 22 February 2007 (CB 122), and certainly, and separately, by its letter of 29 May 2008 (CB 173).

14. I should just note that the Tribunal’s second letter is headed “Invitation to Provide Information in Writing”, and in the text of the letter the Tribunal states: “You are invited to provide the following additional information”, and that such statements are more reflective of the language of s.424, rather than s.424A. Nonetheless, when read properly, and in context, it is clear that the additional information sought by the Tribunal relates to the first two dot points in the letter, and that the words at the beginning of the third dot point: “Any further comments …” (in relation to the forged letter) is reflective of s.424A(1)(c): “invite the applicant to comment on or respond to it.” That the Tribunal sought “further” comments does not detract from this.

15. The use of shorthand labels, such as references to “the Tribunal’s s.424A letter” is often a convenient way to identify such correspondence. The meaning being that it is the letter by which the Tribunal discharged its obligation in s.424A.

16. In the current case, however, assigning such a label to the Tribunal’s “second” letter can be misleading. In my view, this letter purported to discharge the Tribunal’s obligation pursuant to s.424A (with reference to the third dot point – see CB 173 and [40] above), and sought to exercise the Tribunal’s discretionary power to obtain additional information pursuant to s.424 (the first and second dot points – see CB 173).

17. In addition, in context, these statements (at [72] above) can plainly be seen as reflective of the fact that the Tribunal (albeit as previously constituted) had already written to the applicant, and had given him the opportunity to provide comments in relation to the “forged” letter.

18. The Tribunal was plainly cognisant that an earlier letter pursuant to s.424A had been sent to the applicant (see [65] to [71] above). It was “aware” that this letter evoked a response from the applicant (CB 124) such that he could be said to have made comments on the issue of the letter being a forgery. In this light, the Tribunal’s statement in its “second” letter of 29 May 2008: “Any further comments you may wish to make in relation to the Tribunal’s receipt of a forged letter …” plainly is an invitation for additional comments to those already made in relation to the “forged” letter, and consistent with its sending a “second” “section 424A letter”.

19. The applicant’s complaint at its highest is that, with reference to the transcript of the Tribunal’s hearing, at least at the commencement of the hearing the Tribunal was “aware” that the “forged” letter contained particulars that were personal to the applicant. Putting to one side whether these “personal particulars” constitute “information” for the purposes of s.424A (see further below), I am of the view that the Tribunal’s letter inviting him to comment (that is, the “second” letter of 29 May 2008) encompassed these personal details.

1. In its “first” letter the Tribunal told the applicant that the “real” letter from the Indian Consulate-General advised that the “earlier” letter purportedly from the Indian Consulate-General was a forgery, and that this “information” “could suggest” that he had “been involved in sending … a forged document to support” his claim that he was of interest to the Indian authorities.

2. In its second letter the Tribunal sought “any further comments” in relation to its “receipt of a forged letter in 2005.” A letter which the Tribunal described as being: “purportedly from the Indian Consulate General, concerning you.”

3. In my view, the Tribunal’s use of the words “concerning you” is significant. The relevant sentence in the Tribunal’s second letter could have ended just prior to these words. In that circumstance, it could be argued that the Tribunal was simply seeking additional comment in relation to the “receipt of a forged letter”. The words: “concerning you” are superfluous if that was all that the Tribunal intended.

4. In my view, the words conveyed the meaning that there was something about the contents of the letter that was about the applicant. That is, contained in the body of the letter were particulars personal to the applicant such that it could then be open to the Tribunal to: “possibly draw an adverse view of your credibility arising from the receipt of this letter.”

5. Relevantly, the important difference between the two Tribunal letters, is the while both letters made reference to the letter being a forgery, and that this could raise doubts about the applicant’s credibility, it was only the second Tribunal letter that identified the nature of the contents of the forged letter (“concerning you”) as being an additional relevant factor in the Tribunal possibly forming an adverse view of the applicant’s credibility.

6. The Tribunal’s obligation pursuant to s.424A is to invite comment on “information” that it “considers” “would be” the reason, or part of the reason for affirming the decision under review. The Tribunal’s second letter invited comment on the “forged” letter that was a letter personal to the applicant. That is, a letter concerning him, in the sense that it contained some identifying personal particularity.

7. In discharging its obligation, it is not necessarily the case that the Tribunal provide a copy of the letter. (Although it is clear that the applicant had seen a copy – see T3’s account of the hearing before it at CB 133.3. Further, it appears the applicant’s then solicitors had been given a copy of the “forged” letter – see T 11.1) What is required is that the Tribunal, pursuant to s.424A(1)(b), ensures, in writing, “as far as is reasonably practicable, that the applicant understands why it [the “information”] is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review”.

8. Two recent Federal Court cases (matters on appeal from this Court) assist in this consideration and the assistance that an understanding of the Tribunal’s obligation pursuant to s.424A(1)(b) can offer as to whether it discharged, also, any obligation pursuant to s.424A(1)(a).

9. In SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 per Rares J, this was referred to as a “strict requirement” at [36]:

   “When the matter was before the trial judge he took the view that it must have been apparent to the appellant, having regard to the course of the hearing and the terms of the letter, that the tribunal was contemplating a possible finding that it was not satisfied that he was a homosexual. But that approach does not deal with the strict requirements of  s 424A(1)(b).  It required the tribunal to ensure, as far as reasonably practical, that it identified to the appellant why he should have understood the information was relevant to the review. This is necessary to avoid an applicant for review being left to choose between uncertain inferences that might otherwise be available in the notification. The natural justice which the Parliament has said an applicant for review is entitled to receive from the tribunal in a situation such as the present includes, as far as is reasonably practical, that the applicant is told by the tribunal why the information is relevant to the review. The tribunal does not fulfil the obligation imposed by  s 424A(1)(b)  if it leaves it to chance that he ought to appreciate that relevance from the course of the hearing, or from other circumstances surrounding the way in which the review is being conducted.”

10. This was cited with approval in SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486 (“SZMTJ”) per Flick J, where it was also said at [51] to [52]:

    “Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

    In the present proceeding, the information set forth by the Tribunal in its 28 July 2008 letter has been identified with such detail that it was readily apparent that the Appellant’s response was being sought as to how that information could be compatible with a genuine claim to fear persecution. There is no uncertainty that what was being sought was his comment as to how he could credibly be claiming to fear persecution in the light of the information set forth.”

11. What is necessary, therefore, is that the Tribunal provides sufficient particularity such that the applicant understands the nature of the information that would be the reason for the Tribunal’s decision and is able to properly comment on it.

12. I take into account what was said in SZEOP that the Tribunal does not satisfy its obligation under s.424A(1)(b) if the Tribunal leaves to chance that the applicant appreciates the relevance of the information from sources other than what is in the letter itself.

13. In my view, in the current circumstances, the Tribunal could only have been referring to the fact that the “forged” letter had some reference to the personal particulars of the applicant, and that this may cause it to take an adverse view of the applicant’s credibility as a result.

14. With reference in particular to SZMTJ, the character of the “information” in the current case was that a “forged” letter purportedly from the Indian Consulate-General containing personal particulars relevant to the applicant was sent to the Tribunal.

15. In my view, the Tribunal’s second letter conveyed the character of the relevant “information” – a “forged” letter from the Indian Consulate-General – “concerning” the applicant, that is, personal to the applicant. It also told the applicant (with reference to both authorities above), with clarity, that this “information” was relevant to the review because of the adverse view that the Tribunal could possibly draw of the applicant’s credibility.

16. Importantly, the Tribunal’s letter emphasised the distinction in how the two Tribunal members (T3 and T4) viewed the relevance of the “forged” letter. T3, in the first Tribunal letter made reference to both the “forged” and “real” letters from the Indian Consulate-General. Ultimately, T3 gave the applicant the benefit of the doubt and did not find adversely to the applicant’s credibility on this matter.

17. The Tribunal (T4), however, by the “second” letter put the applicant clearly on notice that the receipt of the “forged” letter “concerning you”, “[I]n this regard”, could lead the Tribunal to take a different view to that taken by the earlier constituted Tribunal.

18. The Tribunal could have reproduced the “forged” letter verbatim in its letter. But I cannot see how this would have made the explanation to the applicant any clearer. It would still have been a “letter” “concerning you”, that is, a “forged” letter with particulars personal to the applicant.

19. While bearing in mind the caution set out in SZEOP above, in my view, what relevantly occurred at the hearing before the Tribunal, that is, at that part of the transcript relied on by the applicant now (see [15] to [16] above) serves to reinforce this view of what the Tribunal did in its “second” letter. (See further below.)

20. I agree with Mr Potts that the complete answer to the applicant’s ground is that the Tribunal’s letter of 29 May 2008 (the “second” letter) would have discharged the Tribunal’s obligation pursuant to s.424A. This is so even if the view is taken that the “personal particulars” were information for the purposes of s.424A.

21. In relation to the latter, I also do not agree with Mr Silva’s submission that the “personal particulars” were separately (to the letter itself) “information” for the purposes of s.424A.

22. The issue here, therefore, is what exactly is the “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Mr Silva submits that the relevant law requires the Court to inform itself as to the Tribunal’s state of mind with reference to the hearing, and make no reference to the published reasons.

23. There are two accounts of what occurred at the hearing before the Court. However, looking just at the transcript of the hearing provided by the applicant, I am not satisfied that the personal particulars can be divorced from the letter itself such that they can be said to constitute a set of “information” separate to the “forged” letter itself.

24. Bearing in mind what the High Court said in SZBYR at [17]: “The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place”. As in the current case, “the appropriate criterion” is found in s.36(1) of the Act. As the High Court said in SZBYR:

    “When viewed in that light , it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”

25. Similarly, in the current case, it is clear that the Tribunal considered that the existence of the letter and that it was a forgery “would be” a part of the reason for affirming the decision under review. In my view, the Tribunal’s thinking, in this regard, is encapsulated in, and can be derived from, the following:

    1)At T 9.5:

    “[The Tribunal Member]: I now want to talk about this letter that the tribunal got and which was supposed to have come from the Indian High Commission. You were previously given information indicating that the tribunal’s inquiries indicated that the letter was a forgery and had not been sent by the high commission.”

    2)The Tribunal further explained at T 9.7:

    “[The Tribunal Member]: I understand that. I understand that. I mean, I’ve looked at the letter myself. I have to say that if I’d been the person dealing with it when the letter was first received, at first glance I would have said, “This is a forgery.” I would not have believed it came from the high commission. But you, in your recent letter, re-raised the issue and said that it indicated the Indian authorities were adversely interested in you. So I want to know, you know, if you can tell me why you still believe that to be the case.”

    [It is clear that the Tribunal here refers to the applicant’s agent’s letter (at CB 177) and the applicant’s statement (at CB 178).]

26. In my view, a plain reading of the transcript reveals that the Tribunal was concerned with the applicant’s “re-raised” issue about the letter and his statement (prior to the hearing) that the Indian authorities were: “adversely interested in him”. The existence of the letter, and its initial view that the letter was a forgery, and the expression of this at the hearing indicates very strongly that the Tribunal, at least by that time, had considered that it was information that “would be” part of the reason.

27. That the Tribunal subsequently went on at the hearing to discuss personal particulars in the letter does not, in my view, constitute some other “information” (as the term is understood following SZBYR).

28. In my view, what appears to have been in the Tribunal’s mind (on a reading of the transcript, and as the hearing proceeded) was that what “would be” a part of the reason for affirming the decision under review was the adverse view that the Tribunal took of the applicant’s credibility, based on a letter that had been produced to the Tribunal, which, on its own view, was a forgery.

29. A distinction needs to be drawn between the “information” of the forged letter itself, and, indeed, including its contents, and the adverse view of the applicant’s credibility taken by the Tribunal as a result of the forged letter. The latter, of course, is not “information” for the purposes of s.424A(1) (SZBYR at [18] and see also the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs 206 ALR 471 ).

30. That the Tribunal then proceeded at the hearing to make reference to the contents of the letter was plainly done for the purpose of better explaining to the applicant (who appeared to be saying to the Tribunal that he had some difficulty accepting what the Tribunal was putting to him) the view that it may formulate as to his credibility in relation to the “forged” letter. Importantly, again, the Tribunal’s view of the contents of the letter was not “information” for the purposes of s.424A. Nor was its explanation to the applicant as to how the contents of the letter were being analysed, and how this view could possibly give rise to an adverse view of the applicant’s credibility.

31. The contents of the letter did not, of themselves, and by their terms, undermine the applicant’s claim to be a person to whom Australia owed protection obligations pursuant to s.36(2) of the Act. Further, it was not a letter from the Indian authorities. That is, the country in which the claimed persecution occurred. At the hearing the Tribunal was seeking to indicate to the applicant (again, it must be seen in the context of responding to the applicant, who had raised the issue) that the Tribunal had been provided with a forged letter. It sought to explain to the applicant that its preliminary view of the letter was that it was a forgery. That the Tribunal (unlike the previous member) may, or could, have arrived at this view independently of the subsequent advice from the Indian Consulate-General. In the Tribunal’s mind, given its earlier reference, at the beginning of the discussion of this issue at the hearing (T 9.6), to the advice from the Indian Consulate-General (in its “real” letter) that the other letter was a forgery, was a confirmation of what it may have arrived at, independently, by itself.

32. Plainly, this continued to be the Tribunal’s view at the hearing. But the Tribunal felt compelled to address this issue at the hearing of what may necessarily be the case because the applicant himself had “re-raised the issue” (T 9.8).

33. When read in this light, I agree with Mr Potts that (with reference to SZBYR) there is nothing in the contents of the “forged” letter itself (that is, in its terms) to undermine the applicant’s claims to be a person to whom Australia owes protection obligations. As such (with SZBYR at [17] in mind), s.424A(1) is not engaged. The adverse view that the Tribunal took of the contents of the letter is not “information” for the purposes of s.424A(1). In the Tribunal’s mind, as at the time of the hearing, it was the fact that the letter was a forgery, that was the information which would be the reason or part of the reason for affirming the decision under review. This was information that was put to the applicant by the Tribunal in its letter of 29 May 2008. With the reference there that the Tribunal could possibly draw: “an adverse view of your credibility arising from the receipt of this letter”, clearly indicating that the Tribunal was of the view that the applicant had perpetrated (or had caused to be perpetrated) the forgery, and its sending to the Tribunal.

34. Further, considering the Tribunal’s decision record only in the way as explained in recent Federal Court authorities relied on by the respondent now (which, in turn, seek to explain relevant parts of SZBYR), the Tribunal’s decision record confirms the inferences drawn about the Tribunal’s state of mind as at a point in time anterior to that at which it made its decision and, in particular, with reference to the applicant’s submissions, prior to, or at least at the commencement of, the hearing.

35. At paragraphs [145] to [148] (CB 219.5 to CB 220.2) the Tribunal reports its account of what occurred at the hearing. At paragraphs [180] to [183] (CB 224.7 to CB 225.4) the Tribunal mirrors in the presentation of its analysis what it had previously set out as its report of the hearing.

36. I should note that I do not regard the Tribunal’s statement (at CB 225.3: “However, the Tribunal makes no finding to that effect, as it is not necessary to do so, given its earlier findings …”), that is, that the applicant fabricated the letter or that it was fabricated on his behalf for the purpose of strengthening his claim that the Indian authorities were interested in him, as permitting the drawing of an inference as to what would have been the Tribunal’s state of mind at an earlier time. That is, that this information “would” not “be” a part of its reason for affirming the delegate’s decision.

37. Plainly, by its terms (paragraph [183] at CB 225.3), the Tribunal felt that it was not necessary to make a finding as to whether the letter was fabricated on the applicant’s behalf for the purpose of strengthening his claims, as it said, because of its earlier findings. That is, findings made when it came to draft its decision, and plainly after the conduct of the hearing.

38. But an inference can be drawn (if necessary) from the other parts of these paragraphs that confirms that what was in the Tribunal’s mind at the relevant parts of the hearing was that the letter was fraudulent, that is, that there was a letter submitted to it, purportedly from the authorities against whom the applicant claimed to fear persecution. It was the fact of the forgery having been provided to it, the linking of the forged letter to the applicant, and the possible adverse view of the applicant’s credibility as a result that was at issue. This relied on the fact of the letter concerning him being a forgery. It was this information that the Tribunal did put to the applicant in its “second” letter, thereby discharging its obligation.

39. I should just note that seeking to draw distinctions between the existence of the letter, the fact that it was a forgery, and its contents, and despite earlier submissions that the Tribunal’s decision record was a source of confirmation for what was in its mind, in my view, does seek from the Court to engage in the exercise of “unbundling”. An exercise to which the High Court assigned a “reduced” need once “the limited scope of s 424A is appreciated, and once the proper meaning of the word ‘reason’ in s 424A(1)(a) is discerned,” (see SZBYR at [22]).

1. The information that would be the reason or part of the reason for the Tribunal affirming the decision under review, and which can plainly be seen to have been in the Tribunal’s mind, as such, at some time prior to the hearing, was that there was a letter before it purportedly from the Indian Consulate-General that “concerned” the applicant (that is, it was about him). This was put to him in writing and the applicant was invited to comment.

2. That the Tribunal could take a particular view of the “forged” letter, and of the applicant because of it, was plain with reference to the transcript of the hearing. Even though the view that the Tribunal took of the letter (that it was a forgery) and of the applicant’s credibility (that he may have caused it to be sent) was not “information” for the purposes of s.424A (SZBYR at [17] to [18]), it nonetheless put the significance of the “forged” letter to the applicant in its letter to him. That is, that it may cause it to take an adverse view of his credibility because the “forged” letter was “concerning” him.

3. In my view, the Tribunal’s view of the contents of the letter (that is, because it concerned the applicant, as derived from the contents), was not “information” for the purposes of s.424A (SZBYR at [18]).

4. In all, the first ground is not made out. The Tribunal did comply with its obligation pursuant to s.424A, and did not breach its obligation in that regard.

Ground Two

1. In ground two the applicant takes issue with what is said to be the Tribunal’s finding that the harm suffered by the applicant was not Convention-related.  There are two complaints under this ground.

2. The first is made with reference to the Tribunal’s decision record at CB 222.  The applicant submits that the Tribunal accepted that he had been harmed by police, and supporters of opposition political parties, yet failed to consider the reasons as to why such political parties would become involved, and to consider whether they would have become involved if he had been a member of those political parties, or had been a Hindu (presumably, instead of being a Sikh).  

3. The applicant submits that the relevant political parties “are racist parties”, and that the Tribunal failed to consider why these “racist parties” would become involved if the matter was “only private”.  (I understood this to be a reference to the Tribunal’s finding that the applicant’s difficulties were related to his neighbour’s desire to annex his land.) As best as I understood the submissions, the applicant’s position is that the Tribunal’s finding (at CB 223.2) that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason was “legally erroneous” because the Tribunal failed to address these questions.

4. The Court would need more than what is set out above if this complaint is to be seen as anything more than an attack on the Tribunal’s factual findings and, in reality, to be a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259, NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10).

5. The applicant does not point to any evidence to support the broad sweeping statement in written submissions that “there is no question” that the two parties said to have opposed the applicant “are racist parties”.  Further, it is difficult to see how, putting forward these arguments now (see paragraph [24] of the applicant’s written submissions) providing alternate theories or reasons as to why supporters of these political parties sought to harm the applicant, can assist the applicant now in light of the task facing this Court, as opposed to the task before the Tribunal.

6. Plainly, this Court is not able to hear a reagitation of the applicant’s claims to fear harm for a Convention reason.  It is trite to say that this Court’s task is to ensure that the Tribunal made its decision according to law.  In this regard, the applicant was given every opportunity before the Tribunal to put forward his claims. In relation to the claim to fear harm from supporters of certain political parties in India, the very claim relating to supporters of political parties and their motivation, or reasons, for harming the applicant was specifically raised at the hearing before the Tribunal (see, for example, CB 218.5, and T 6.7 and T 7.3).

7. On the material before the Court it was certainly open to the Tribunal to form the view that supporters of these political parties (while accepting that they had acted against the applicant) did so at the behest of the applicant’s Hindu neighbour who owned land next door to the applicant and who wanted to take over the applicant’s land (CB 222.5).  

8. This complaint does not succeed.

9. The second particular to ground two asserts that the Tribunal took into consideration an irrelevant matter. This was said to be that the Tribunal made reference to the applicant’s brother who “had land somewhere else not adjoining the neighbour’s property”, and that he had not been harmed.  The applicant, in particular, refers the Court to CB 223.5 and T 8.8.

10. The applicant’s submissions appear to take issue with the reasoning processes adopted by the Tribunal.  In essence, the Tribunal reasoned that the applicant’s claims to have been targeted for political or religious reasons, or membership of a particular social group, could be compared with that of his brother (who presumably was of the same religion and group). Its finding was that the applicant had been subjected to harassment by the supporters of these political parties, whereas the applicant’s brother who lived on land in the same village had never been harassed by the supporters of the political parties nor, for that matter, the applicant’s neighbour (the critical difference being that his land was not contiguous to that of the applicant’s neighbour).  This analysis was based on the applicant’s own evidence given to the Tribunal (see, for example, CB 222.8, T 7.4, T 8.1 to T 8.9).

11. I cannot see that it was not open to the Tribunal (as argued by the applicant) to reason that, based on the applicant’s own evidence that the applicant’s brother experienced no harassment or harm from the same people from whom the applicant claimed to have suffered harm, and that the reason for this was that the difference between the applicant and his brother was the location of their respective plots of land and proximity to the applicant’s influential neighbour.  The Tribunal’s findings were therefore open to it as they flowed from this evidence and reasoning.  This complaint also does not succeed. 

Ground Three

1. Ground three of the second further amended application asserts jurisdictional error on the part of the Tribunal as it was said to have made a finding without asking a question it should have asked the applicant during the hearing. It was therefore said to have breached s.425 of the Act.

2. The applicant refers to the Tribunal’s decision record at CB 223.8:

   “… However, there is nothing before the Tribunal to suggest that the neighbour has caused any problems for any other Sikh in the neighbourhood, whether Jatt or otherwise, or landowner or other wise ...”

3. The applicant complains, with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [21] and [35] in particular, that this was not an “issue” before “a delegate” and was also not an issue dealt with by the Tribunal at the hearing. The Tribunal’s failure to raise this issue at the hearing denied the applicant procedural fairness pursuant to s.425 of the Act.

4. In reply, Mr Potts submitted that in the “SZBEL sense”, an “issue arising in relation to the decision under review” is an issue which is critical or dispositive of the review.  Mr Potts referred the Court to SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25], and SZLRJ v Minister for Immigration and Citizenship [2008] FCA 1714 at [32], for the proposition that the Tribunal is obliged to put an applicant on notice of an issue, but not each fact that relates to it. In this regard, Mr Potts submitted that what was raised by the Tribunal at the hearing (see T 7 to T 8) was sufficient to put the applicant on notice as to the relevant issue. That is, that there was nothing before the Tribunal to suggest that the neighbour had caused problems for any other Sikhs in the neighbourhood.

5. A plain, but holistic, reading of the Tribunal’s decision record reveals, in my view, that the issue dispositive of the review (see SZBEL at [35]) and the issue which “will determine whether rejection of critical aspects of an applicant’s account of events was ‘obviously … open on the known material’” (see SZBEL at [38]) was whether the applicant’s account of events concerning the harm that he claimed had occurred in the past arose simply out of his neighbour’s desire to take over his land, or whether it was for religious, political, or other Convention-related reasons.

6. The Tribunal accepted (albeit with some difficulty) that the applicant’s neighbour did wish to take over his land and had a dispute with him about this matter (CB 223.1). It further accepted that the applicant had been threatened by the neighbour and harassed, and that other people had been influenced to take his side with a view to forcing the applicant to leave his home.  It also accepted that the neighbour had induced the police not to accept complaints by the applicant (see CB 223.3).

7. The Tribunal found, however, that the harm suffered by the applicant was not for a Convention reason.  That is, he was not targeted because of his Sikh religion, nor was he targeted by members of certain political parties because of any political reason, nor was he targeted because of his membership of any particular social group.

8. The Tribunal found (on any plain reading of its decision record) in relation to the harm suffered and feared by the applicant (CB 223.4):

   “171.However, even accepting this, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.  Although the applicant’s neighbour is a Hindu, and is said to be a member of Shiv Sena and has contacts and influence with Shiv Sena and Bajrang Dal, the applicant’s evidence (taken in its entirety) does not suggest that the essential and significant reason the neighbour, or persons acting for him, (whether of their own volition or as a result of an explicit request), targeted the applicant because of his Sikh religion, because of his socio-economic position related to his caste and perceived wealth, or because of any political opinion he held or which may have been attributed to him as a Sikh.  Indeed, the applicant said that the police who allegedly detained and beat him were not exclusively Hindu, but included Sikhs as well.”

9. SZBEL requires an applicant to be put on notice either as a result of the delegate’s decision, or by the Tribunal at the hearing (“sufficiently indicate”), of the issue or issues arising in relation to the decision under review and which are determinative of the review.  

10. Any reading of the delegate’s decision (see, in particular, CB 34 to CB 36) reveals that, at best, the reason that the delegate refused the application for a protection visa was that the applicant had not provided sufficient information or details to support his claims (see, in particular, CB 34.8 to CB 35.1).  In my view, the issue before the Tribunal was plainly a different issue.  Namely, that while levels of detail had been provided, no Convention nexus had been established.

11. There are two records of what was said to have occurred at the Tribunal’s hearing before the Court now.  The Tribunal’s account is set out in its decision record at CB 217.6 to CB 220.9.  (Noting, of course, the Tribunal’s reporting of the other three hearings held before differently constituted Tribunal members.)  A reading of the Tribunal’s account reveals, with reference to the transcript, the following to be an accurate summary (CB 223.5):

    “172.The applicant was clearly placed on notice (see paragraphs 75 and 107 above, for example) that his evidence suggested that the main reason his neighbour wished to harass him was to induce him to leave his farm, because that farm was adjacent to the neighbour’s, and not for any Convention reason relating to religion, socio-economic position relating related to his caste and wealth or political opinion, or indeed any combination of Convention reasons ….”

12. Further, the transcript of the hearing provided by the applicant reveals that the applicant was plainly put on notice of the issue that was ultimately determinative of the review.  That is, whether or not there was a Convention nexus between the applicant’s experiences and claims to fear harm, and any Convention reason.  In particular, T 7 and T 8 reveal the relevant discussion between the applicant and the Tribunal. Further, in particular, I note (at T 7.41 to T 8.15):

    “[TRIBUNAL MEMBER]     Yes.  In other words, it was just a cross-section of the police force in Punjab.  At various stages you’ve said that you thought you felt harm was because of your religion as a Sikh, particularly a Punjabi Sikh, or whether it was because of political reasons or membership of a particular social group, and that social group – well, I’ll stop at that point – and that agents or yourself have at various stages sort of suggested that such a particular social group might be wealthy landowners or Sikh landowners, or Punjabi Sikh landowners or Punjabi Sikh Jat landowners.  So I’ve looked at all of that, all of those possibilities, but again the thrust of all the evidence that I’ve seen seems to be saying to me that really it’s all about the land, that there might be tensions and dislikes about those things, but it’s all about this land, that because your block of land is next to this other man’s block of land.

    To use the language that’s in our legislation here in Australia, the essential and significant reason for the harm you claim to fear seemed to be the ownership of this block of land.  If there was no block of land, if your block of land was not next to his, if you were on the other side of the village like your brother, the problem would not have arisen.  Because you gave evidence that your neighbour showed no particular animosity, for example, towards your brother, or – so that’s the thing that I think is the big issue that I have come to grips with.  Do you want to comment further on that?”

13. I cannot see that the Tribunal could have made the issue, or the issue which turned out to be the determinative issue in the review, any clearer (“It’s all about the land.”).  The Tribunal at the hearing plainly indicated to the applicant that, in relation to all aspects of his claims, the issue of whether or not such claims revealed a Convention nexus, or could be seen to have a Convention nexus, were plainly the “big issue”. 

14. Part of the Tribunal’s decision record relied upon by the applicant now, is, in my view, a finding of fact (that is, that there was nothing before the Tribunal to suggest that the neighbour had caused problems for any other Sikh in the neighbourhood) that related to the issue of whether or not the applicant’s claims revealed a Convention nexus.  As was said in SZJUB (at [25]):

    “… the Tribunal is not obliged to put each of those factual matters to the appellant.  The Tribunal is to inform [the applicant] of the issue, but not of each fact that relates to it.”

15. In all, therefore, this ground is not made out.

Ground Four

1. Ground four of the second further amended application complains that the Tribunal made a jurisdictional error as it misunderstood what is meant by “Convention reason”.

2. The applicant refers to the Tribunal’s decision record at CB 224.2:

   “177.In reaching these conclusions, the Tribunal has noted the applicant’s claims that police accused him of being a Sikh terrorist.  However, his evidence was that this was merely an excuse to justify the harassment on the neighbour’s behalf …”

3. As best as I understood the applicant’s argument, it is that once the police accused the applicant of being a “terrorist” (in essence, attributing him with a certain political opinion) whether the police subjectively believed him to be a terrorist, or not, was irrelevant.  The applicant submits that the: “correct legal position is that once someone is openly attributed a political opinion as the motivation of the harm caused to him, the subjective mental state of the attributor is immaterial to the Convention reason”.

4. I agree with Mr Potts that the applicant’s characterisation of what occurred in this case does indeed miss the relevant point.

5. The Tribunal: “noted the applicant’s claims that people accused him of being a Sikh terrorist” (CB 224.3).  The Tribunal found, however, on the applicant’s own evidence, that the police did not really believe the applicant to be a terrorist, but that: “this was merely an excuse to justify the harassment on the neighbour’s behalf” (CB 224.3). 

6. The Tribunal had already found that the applicant’s neighbour was harassing the applicant and causing others to do so for a non-Convention reason.  In essence, the Tribunal found that the neighbour’s motivation was “all about the land”, and had nothing to do with any Convention reason.  The Tribunal plainly found that the police had no belief in the accusation that the applicant was a “Sikh terrorist”, but that the true motivation for the action that the police took was to assist the applicant’s neighbour who was influential.

7. The following extract from the hearing is illustrative and underpins the Tribunal’s subsequent approach (T 8.41 to T 9.14):

   “[TRIBUNAL MEMBER]     Also I’m aware that you said that police accused you of being a Sikh terrorist.  But it was very clear from the evidence that you gave that that was just an excuse on their part to justify harassing you on behalf of the neighbour.  That’s right?

   INTERPRETER [THE APPLICANT] I’m not a terrorist.  I’m an ordinary person.  They are rather using this word …

   [TRIBUNAL MEMBER]  No, I understand that, and in fact you said that the police were well aware, they know very well, that you were in no way connected to Sikh terrorists or the Sikh militancy.  That’s right?

   INTERPRETER [THE APPLICANT] Yes.

   [TRIBUNAL MEMBER]      So, I mean, if they really believed you were a terrorist, or even if they thought you were someone in sympathy with the terrorists, I wouldn’t have thought they’d release you after only a few nights.

   INTERPRETER [THE APPLICANT] Yes, you are right.”

8. It is by now trite to say that an applicant who claims a fear of persecution must also show (even in circumstances where a fear is established and accepted by the Tribunal) that the persecution which is feared is for one or more of the reasons set out in Article 1A(2) of the Refugees Convention (see, for example, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570). In other words, there must be some causal connection between the harm that is feared and a Convention ground.

9. The concept of “persecution” under the Convention includes a consideration of the motivation for the “infliction of harm” (see Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225). There is a clear link between “persecution” for reason of any of the grounds specified in the Convention definition, that is, race, religion, nationality, membership of a particular social group or political opinion (Chen Shi Hai v Minister for Immigration and Ethnic Affairs (2000) 201 CLR 293, in particular at [12] and [24]).

10. In the current case, it is quite clear from the material before the Court (with particular reference to the transcript of the (fourth) hearing of the Tribunal, and its decision record) that the applicant’s own evidence was that the police perception of the applicant was that he was not, in fact, a Sikh terrorist. That the motivation of the police, which, after all, is the critical and important factor (see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 per McHugh J at [70] and [102]), was to support the influential neighbour.

1. In spite of what is submitted now by the applicant, it is clear that the police never believed the applicant to be a Sikh terrorist. In the circumstances, their motivation in harassing the applicant was the influence exerted by the applicant’s neighbour, who himself was motivated to harass the applicant for a non-Convention reason.  The applicant’s complaint, therefore, as Mr Potts submits, misses the point.  The police did not “openly attribute a political opinion” to the applicant because what was stated was never believed to be true.  In these circumstances, therefore, I cannot see that the Tribunal misunderstood the relevant law and misapplied it in this regard.

2. I also note that to satisfy the definition in Article 1A(2) it is not sufficient that the applicant satisfy the concept of “persecution” as set out in that Article of the Convention. The applicant must also satisfy this definition as qualified by s.91R(1)(a) of the Act. That is, that in order to satisfy Article 1A(2), the Convention reason or reasons must constitute at least the essential and significant reason or reasons for the persecution. I note, in this regard, the Tribunal’s comment to the applicant at the hearing (T 8.8):

   “To use the language that’s in our legislation here in Australia, the essential and significant reason for the harm you claim to fear seemed to be the ownership of this block of land … .”

   The Tribunal plainly understood the relevant legislative context within which its analysis was to be made.

3. This ground is not made out.

Conclusion

1. To succeed before the Court the applicant would have to show (at least) that the Tribunal’s decision is affected by jurisdictional error. With the benefit of legal assistance and representation the applicant has put a number of grounds before the Court asserting jurisdictional error. For the reasons set out above none of the grounds are made out. The application is therefore dismissed.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  29 May 2009