SZBOO v Minister for Immigration

[2005] FMCA 1010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBOO v MINISTER FOR IMMIGRATION [2005] FMCA 1010

MIGRATION – Review of decision of RRT – where certain information was discussed with applicant at hearing but not provided to him as required by s.424A(1) – whether the information was an integer of the reason for the Tribunal’s decision – whether it is also an integer of a separate ground of decision – where court is asked to decide between two opposing decisions on appeal.

Migration Act 1958, ss.424A(1), 426A(1)(3)(c), 441
Federal Magistrates Court Rules 2001

SAAP v Minister for Immigration [2005] HCA 24
ApplicantNAHV of 2002 v Minister for Immigration (2003) FCAFC 102
VAF v Minister for Immigration [2004] FCAFC 123
Minister for Immigration v Rajamanikkam [2000] FCA 1023
VBAP of 2002v Minister for Immigration [2005] FCA 965
Stead v State Government Insurance Commission (1986) 161 CLR 141
MIMA v Al Shamry (2001) 110 FCR 27
SZFKL v Minister for Immigration [2005] FCA 931
SZEEU v Minister for Immigration NSD 521 of 2005Is there a Subjective Element in the Refugee Convention’s Requirement of “Well-Founded Fear” Michigan Journal of International Law Vol. 26:505 Winter 2005

Applicant: SZBOO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2064 of 2003

Judgment of: Raphael FM

Hearing date: 15 July 2005

Date of Last Submission: 15 July 2005

Delivered at: Sydney

Delivered on: 21 July 2005

REPRESENTATION

Counsel for the Applicant: Mr S Lloyd

Solicitors for the Applicant: Parish Patience Immigration

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

CORRIGENDUM TO REASONS FOR JUDGMENT

The Refugee Review Tribunal be added as a second respondent in this Judgment.

I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment of Raphael FM

Associate:

Dated:   3 August 2005

ORDERS

THE COURT DECLARES:

1. That the decision of the Refugee Review Tribunal made on 2 September 2003 and handed down on 25 September 2003 is invalid and of no effect.

THE COURT ORDERS:

1. The application be referred back to the Tribunal differently constituted to be heard and determined in accordance with law.

2. The respondent to pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2064 of 2003

SZBOO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This proceeding is an application for judicial review of a decision of the Refugee Review Tribunal made on 2 September 2003, and handed down on 25 September 2003, to affirm a decision not to grant a protection visa to the applicant, a Pakistani national who claimed that he had a well founded fear of persecution for the convention reason of membership of a particular social group represented by members of an anti drug organisation TKeM.  The applicant claimed that if he was returned to Pakistan his life would be in danger from persons involved in the drug industry in the Northwest Frontier Province by reason of his membership of that group and his activities within it.  The applicant claimed he would not receive adequate state protection from the police or security forces of the Government of Pakistan because those persons were heavily involved in the drug industry themselves.

2. In support of his application for a protection visa the applicant provided a statutory declaration which is found at [CB 24-25].  The statutory declaration contains two matters which are of importance for the purposes of this decision. These are:

   [9]     On 4 June 1997 unknown gunmen carried out an attack on a group of people who had attended a meeting in my house …  During the attack no one was seriously wounded, but ironically myself and two other members of our organisation were detained for the alleged charge of instigating violence and gathering with the intention to cause civil disturbance. 

   [10]    On 11 July 1997 I went to Brunei.  I stayed there for about 2 years.  During this period three members of our network have been killed.  Two of them were shot dead in Peshawar and the other one in Lahoor.

3. During the course of the hearing the applicant, after being requested to confirm that his statutory declaration and application form for a protection visa were true and correct, was questioned about the detention he refers to in [9] of his statutory declaration.

   
   

   At [CB 173 -174] the Tribunal comments in its Findings and Reasons:

   “The applicant in his original statement had claimed that following the second incident, in June 1997, he was detained by the local police after making a complaint.  At the hearing, however, he stated that when he approached the police after the incident they asked him for 2000 Rupees in order to register the complaint, a demand the applicant had refused.  When asked if anything else happened at the police station, he stated that he was questioned as to why he was holding meetings in the village and that he was harassed.  But when the Tribunal put to him that in his Statutory Declaration he stated that he was detained, he shifted his evidence by denying that he had said that he was harassed and went on to state that what he had meant to say was that he was detained.  Having regard to the inconsistencies and the shifts in the applicant’s evidence, the Tribunal finds this aspect of his evidence unconvincing and does not accept that the applicant was detained by the police in June 1997.”

   The Tribunal did not invite the applicant to comment upon this information pursuant to the provisions of s.424A(1) of the Migration Act 1958 (Cth) (the “Act).

4. In his Amended Application the grounds upon which the applicant seeks relief from this court are set out:

   The grounds of the application are:

   1. The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act.

   Particulars

   i)The Refugee Review Tribunal failed to follow the procedures in the Act that it had a statutory obligation to follow.

   (a) The Refugee Review Tribunal had to give to the applicant, in the way that the Tribunal considered appropriate in the circumstances, particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review; and ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review; and invite the applicant to comment on it: s424A(1).

   (b) The information and invitation had to be given to the applicant, for the purposes of the present application, by one of the methods specified in s.441A: s.424(2).

   (c)     The Refugee Review Tribunal failed to comply with these obligations in relation to the following information:

   i)information acquired by the Tribunal from the High Commission in Pakistan concerning Bilal Ahad, a colleague of the applicant in the TKeM group;

   ii)information contained in a statement by the applicant in support of his visa application that he had been detained by the authorities after an incident in June 1997.

5. The applicant also sought from the Tribunal, and was granted, time to introduce certain evidence concerning the death of another member of TKeM who had been refouled to Pakistan by the Commonwealth of Australia, a Mr Ahad.  The applicant produced what he claimed was a copy of the death certificate of Mr Ahad and gave oral evidence about other information provided to him by Mr Ahad’s father.  The Tribunal was in possession of independent country information being a DIMIA report dated 5 December 2002 indicating that there was no evidence to suggest that Mr Ahad had been murdered and that his death was caused by a heart condition [CB 167].  That was put to the applicant at the hearing but no notice was given to the applicant pursuant to s.424A (1).

6. The Tribunal deals with the death of Mr Ahad at [CB 172] in the section headed “Findings and Reasons”.  It notes that the applicant had persistently relied on the death of Mr Ahad as evidence of the danger that he would face upon his return and Mr Ahad’s involvement with TKeM and his fear of persecution by drug traffickers in Pakistan.  The Tribunal criticises the certificate provided by the applicant and the hearsay evidence of Mr Ahad’s father.  It goes on to say:

   “Furthermore, no information or details have been provided regarding the circumstances surrounding Mr Ahad’s death, who was responsible for his death, why Mr Ahad had opted to return to his village despite his fears for his life and, more importantly, whether Mr Ahad had approached the authorities in anyway or manner in order to seek protection.  In the absence of this information the Tribunal is unable to attach any significance to Mr Ahad’s death so far as the applicant’s case is concerned.

   In addition, following a specific request by the Department to the Australian High Commission in Pakistan for information on the circumstances surrounding Mr Ahad’s death, the High Commission provided information to the effect that after extensive enquiries they had been informed that Mr Ahad had died of natural causes. … [The Tribunal refers to applicant’s response to this information]….

   For the above reasons, the Tribunal does not accept that Mr Ahad was murdered for reasons of his claimed activities as a member of TKeM and finds that he died of natural causes.  The Tribunal is satisfied that Mr Ahad’s death in Pakistan does not increase the applicant’s chance of facing persecution for the reasons he has provided.”

7. The High Court in SAAP v Minister for Immigration [2005] HCA 24 has squarely rejected the approach previously accepted as orthodox by the decision of the Full Federal Court in ApplicantNAHV of 2002 v Minister for Immigration (2003) FCAFC 102 that the provisions of s.424A(1) could be said to have been complied with where the matters in issue were raised with the applicant at hearing. The Full Court did this adopting a fairness test. The High Court held that there could be no partial compliance with a statutory obligation to accord procedural fairness; either there had been compliance or there had not; SAAP

   
   

   [76 - 77] per McHugh J who also said at [68]:

   “The Section 424A(1) describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case.  Further, the mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A.”

8. The requirement to comply with s.424A is predicated on the information being the reason or part of the reason for affirming the decision that is under review and is subject to three qualifications. The qualification in subs.426A(1)(3)(c) is not relevant. The qualification that the information is not specifically about the applicant contained in 424A(3)(a) is conceded not to be relevant as the information was about Mr Ahad “another person”. The qualification contained in subs.3(b) that the applicant gave information for the purposes of the application is the subject of controversy in this case. I shall deal first with the Mr Ahad information.

9. The applicant submits that the information about Mr Ahad was the reason or part of the Tribunal’s reason for affirming the decision under review.  He argues that it was unambiguously part of the analysis that supported its finding that the applicant did not have a convention nexus.  He submits that had the Tribunal accepted that Mr Ahad had been murdered it would not have been open to the Tribunal to say that the applicant faced harm only because of what he personally had done.  The applicant goes on to argue that the finding must also have affected the Tribunal’s analysis that adequate state protection was available.  Had the Tribunal found that Mr Ahad had been murdered it would not so easily have been able to conclude as it did on the adequacy of Pakistani state protection.  

10. The Tribunal divides its findings and reasons into four headings.  It is not entirely clear whether each of the headings is a separate ground for refusing the application.  It is likely that this is not so because the first ground relates to credibility.  The Tribunal makes some discouraging remarks about the applicant’s credibility but those remarks are directed at a claim that he made that he was a journalist with the Associated Press.  Being a journalist with the Associated Press was not part of his grounds for seeking asylum in Australia.  The conclusion reached by the Tribunal that:

    “Having regard to the applicant’s evidence discussed above, the Tribunal does not accept that the applicant was employed by the

    
    

    AAP as a journalist or in any other capacity.”

    does not seem to form part of its reasons for determining that he did not have a well founded fear of persecution for a convention reason.

11. The next heading is described as:

    “Membership of TKeM, past incidences of persecution and subjective fear.

    The Tribunal accepts that membership of TKeM constitutes a particular social group under the convention. The Tribunal accepts the three incidents that occurred to the applicant in his car and at his home when shots were fired at him; in one case his friend was killed and the driver was injured.  But it comes to certain findings regarding his subjective fear based upon the applicant’s failure to apply for asylum in other countries at an earlier time.  This could really only be relevant to the two incidents which occurred before the August 2001 incident as he did not travel to any country other than Australia thereafter.  Although it was not argued by counsel for the Minister that lack of subjective fear was an independent and supportable ground for the Tribunal’s affirmation of the decision of the delegate it is well to take notice of the views promulgated by Professor Hathaway in his article “Is there a Subjective Element in the Refugee Convention’s Requirement of “Well-Founded Fear” Michigan Journal of International Law Vol. 26:505 Winter 2005 where the learned author says:

    “Beyond vague references to the subjective quality of “fear”, few courts or commentators have undertaken the task of explaining what justifies recognition of a subjective element in the first place.  What, in the end, does subjective fear or trepidation have to do with the goals of refugee law?  Reasoned explanations are in short supply.  This shortfall in critical thinking has greatly complicated efforts to formulate a coherent understanding of the subjective element, and clearly to articulate its role in the analysis of well-founded fear. …

    In contrast to prevailing views, we have taken the position that there is no subjective element in the well-founded fear standard.  The Convention definition’s reference to “fear” was intended simply to mandate an individuated, forward-looking appraisal of actual risk, “not to require an examination of the emotional reaction of the claimant.”  Rather than predicating access to protection on the existence of  “fear” in the sense of trepidation, the Convention refugee definition requires only the demonstration of “fear” in the sense of a forward-looking expectation of risk.  Once fear so conceived is voiced by the act of seeking protection, it falls to the state party assessing refugee status to determine whether that expectation is borne out by the actual circumstances of the case.  If it is, the applicant’s fear (that is, his or her expectation) of being persecuted should be adjudged well-founded.  Grahl-Madsen rightly observed that “every person claiming … to be a refugee has “fear” (‘well-founded’ or otherwise) of being persecuted… irrespective of whether he jitters at the very thought of his return to his home country, is prepared to brave all hazards, or is simply apathetic or even unconscious of the possible dangers.

    This understanding of “fear” as forward-looking expectation of risk is fully justified by one of its plain meanings.  While “fear” is most commonly understood in the sense of trepidation, the term may also be defined as “a particular apprehension of some future evil … an apprehensive feeling towards anything regarded as a source of danger, or towards a person regarded as able to inflict injury or punishment.”  Understood in this sense “fear” merely denotes the refugee’s expectation of impending persecution.  This understanding is consistent with a common usage of “fear” in standard English….  It is also noteworthy that the verb “craindre”, as used in the equally authoritative  French language version of the Refugee Convention, like “fear” - its English language equivalent – can be interpreted either in the sense of expectation or trepidation.”

12. This summary of Professor Hathaway’s intellectually rigorous and highly cogent arguments for rejecting the notion of subjective fear could have presaged an argument that the Tribunal misunderstood the law that it had to apply in this case.  However, as the matter was not raised before me, presumably because the grounds of rejection of a subjective fear could only be referable to two of the three incidents, this is an argument which will doubtless be put in another case on another day.

13. The death of Mr Ahad is referred to by the Tribunal in its Findings and Reasons under the heading “Convention Nexus” in the extract which I have set out in [6] above.  The applicant argues that if the death of Mr Ahad had been accepted as murder because of his TKeM association this would strengthen the applicant’s case that membership of that association was something that could lead to persecution.  The applicant had stated in his statutory declaration that three other persons had been killed and the Tribunal accepted that a friend of his had been killed in one of the incidents that the applicant complained about. Mr Ahad would have been a fifth.  Given this number of people who were known to have been killed for association with TKeM the Tribunal may have been persuaded that the reason for any possible attack upon the applicant would not be the fact that he had named a particular drug lord in a pamphlet, a private act of revenge, but his prominent position within the particular social group. 

14. The respondent’s argument is that the material provided by DFAT did not constitute the reason or part of the reason for affirming the decision because the decision had already been reached before reference was made to it. The information is not sufficiently integral to the Tribunal’s reasons as to fall within s.424A(1). But it is important to note that at [CB 171] after making this finding:

    “Accordingly, the Tribunal finds that the essential significant reason or reasons for the harm the applicant suffered was not his membership or perceived membership of TKeM or any other particular social group, his express or imputed political opinion or any other Convention reason.”  [Having found that the essential or significant reason was revenge for the publication of the articles and booklet].”

    The Tribunal says:

    “In making the above finding the Tribunal has considered the applicant’s claims regarding Mr Ahad’s death in Pakistan.” [And goes on to discuss the information concerning that death already reproduced]

    After setting out that information the Tribunal then says:

    “For the above reasons, the Tribunal does not accept that Mr Ahad was murdered for reasons of his claimed activities as a member of TKeM and finds that he died of natural causes.” (emphasis added)

15. I should be guided in my consideration of whether the DFAT information constituted a reason or part of the reasons by the dicta of the Full Bench in VAF v Minister for Immigration [2004] FCAFC 123 at [33]:

    “While the reasoning process may avert to, and express views on, such issues, all will not necessarily constitute part of the reasons for the Tribunal’s decisions.  Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition.  When a Tribunal’s reasons are to evaluated for s.424A.(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision.  That task, necessarily, is an interpretive one.  In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.”

1. I am of the view that the DFAT information was integral to the Tribunal’s decision that Mr Ahad was not murdered and the fact that Mr Ahad was not murdered was part of the reason for affirming the decision under review.  I say this because of the references by the Tribunal to having considered the applicant’s claims concerning Mr Ahad’s death, which I believe necessarily embody consideration of the evidence against his death being murder, including the DFAT information.  I am particularly impressed by the fact that the Tribunal makes the statement that Mr Ahad died of natural causes.  That is a statement which comes from the DFAT information.  It is difficult to escape the inference that the DFAT information was very much in the Tribunal’s mind when it determined that Mr Ahad had not died in the manner suggested by the applicant.  A court is not required to second guess the Tribunal and make a finding as to whether the finding that Mr Ahad had been murdered would have negated the negative sentiments expressed in the paragraph commencing with the words:

   “Furthermore no more information or details have been provided …”

   it is sufficient that that might be a possibility.

2. The respondent argues that even if I make a finding, as I have, that the Tribunal fell into jurisdictional error by not providing the applicant with a written notice in accordance with the provisions of s.424A and 441A the failure should not invoke the sanction of declaring the decision to be invalid because there was an independent ground of decision in respect of which the death of Mr Ahad was not a reason or part of the reason. This is the state protection argument.  The Tribunal states at [CB 173]:

   “The Independent country information before the Tribunal strongly suggests that the Government of Pakistan has taken active steps to protect citizens against drug trafficking through fostering effective and competent law enforcement agencies, establishing additional Special Courts, conducting operations aimed at reduction in the supply of drugs, arrest of traffickers and dealers, securing convictions, freezing trafficker assets, creating awareness and fighting corruption.”

3. I think it would be difficult to argue that if the Tribunal had been convinced that Mr Ahad had been murdered and had drawn what appears to me to have been the reasonable inference given the applicant’s allegedly expressed fears that Mr Ahad’s murder was connected with his MKeD activities, it may not have paused before concluding so firmly that adequate state protection was available in the Northwest Frontier Province.  This possibility is sufficient to carry the failure to comply with the mandatory provisions of s.424A into the separate ground of the decision.

4. The applicant has suggested that even if the ground of effective state protection used by the Tribunal to justify affirming the decision of the delegate was a separate and independent basis for the decision I should be cautious about declining relief.  In the Minister for Immigration v Rajamanikkam [2000] FCA 1023 the Full Bench considered the question of relocation and determined that there was a real prospect that the Tribunal’s view of the credit worthiness of the applicant might have infected its views as to the relocation topic. But in VBAP of 2002v Minister for Immigration [2005] FCA 965 North J, on appeal from a Federal Magistrate, dealt with a case in which there were four bases for the decision including availability of state protection. At [33] His Honour said:

   “As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application.  There was no challenge to the second basis and I have rejected the challenges to two of the other bases.  SAAP does not stand for the proposition that if there be a breach of s.424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls.”

   It may be that one should infer in relation to His Honour’s view that it is subject to the caveat that the ground would be considered truly independent only if the impugned basis could not make a difference on the Stead test; Stead v State Government Insurance Commission (1986) 161 CLR 141. It seems to me that this is what the Full Bench in Rajamanikkam were really saying.

5. Having made those findings I am not required to consider the vexed issue of whether information in an application for a protection visa or statutory declaration made to the delegate has been incorporated into the application to the Tribunal by the applicant’s acknowledgment of the truth of these documents.  The Full Bench decided in MIMA v Al Shamry (2001) 110 FCR 27 that an airport interview would not fall within the exclusion contained in subs.424A(3)(b). It has been taken ever since that it follows from this decision that information in an applicant’s application for a protection visa would be similarly excluded. This did not really matter until the decision in SAAP because the application was generally discussed with the applicant at the interview.  In order to decide the matter at first instance I would be forced into a comparison of two cases heard on appeal from Federal Magistrates and decided in the last few days.  On 20 June 2005 in SZFKL v Minister for Immigration [2005] FCA 931 Madgwick J, in an ex tempore decision on appeal from Barnes FM, said:

   “[7]Counsel for the Minister felt it appropriate to consider the correctness of the Federal Magistrate’s decision in the light of the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. As Counsel points out, in this case the Tribunal’s finding relied on inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing. However, these inconsistencies were brought to the appellant’s attention during the Tribunal hearing and he confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application and the supporting statement. Thus, all relevant information relied on by the Tribunal, as distinct from its reasoning processes, which did not involve reference to other factual material of substance, appears to be information that the appellant gave to the Tribunal for the purpose of the application to the Tribunal. That is to say, s 424A of the Act would not apply because any possible information falls within the purview of subs (3)(b) as being information ‘that the applicant gave for the purpose of the application.”’

   [8]This submission appears to me to be correct.”

   But on 23 June 2005 in NAZY v Minister for Immigration [2005] FCA 744 Jacobsen J in a considered and reserved decision on appeal from Scarlett FM allowed the appeal and said:

   “[34]It follows from what was said by the judges in Al Shamry that, examined in isolation, the answer to question 6 on the protection visa application was not information that the appellant gave for the purpose of the application for review by the RRT. Thus, the exception in s 424A(3)(b) is not enlivened unless it can be said that the appellant’s evidence in the RRT somehow converted the information supplied to the Department to information which the appellant gave to the RRT for the purpose of the application.

   …

   [39]In my view it cannot be said that the appellant himself provided the information in the protection visa to the RRT as part of his application. The passage set out at [11] indicates that the RRT raised the issue of the protection visa application form and the answers contained in it during questions asked of the applicant in the course of the hearing. The RRT then put the inconsistency in the information to the appellant as a possible basis for a finding that the claim had been fabricated; see the passage at [13].

   [40]It follows in my opinion that the exception contained in s424A(3)(b) was not enlivened.”

6. I am informed that another Judge of the Federal Court has been requested to state a case for the opinion of a Full Bench [SZEEU v Minister for Immigration NSD 521 of 2005] and in those circumstances, lacking any need to make a decision, it would be inappropriate of me to comment further.

7. I am satisfied that the Tribunal in this instance (and proceeding on the basis of the law as it stood at the time) fell into jurisdictional error by not complying with the provisions of subs.424A(1) and s.441A of the Act. This jurisdictional error renders the decision invalid and of no effect. I will make that declaration and order that the respondent pay the applicant’s costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: