SZBYH v Minister for Immigration
[2005] FMCA 1836
•22 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1836 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political, religious and social persecution in Pakistan and India – application rejected on credibility grounds – whether the RRT proceeding was unfair and whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered – RRT not putting to second applicant a credibility concern about the first applicant’s claims considered – no breach of s.424A where the determinative information was put to the RRT by one of two or more applicants in a joint application – no procedural unfairness where both applicants are present at the same time at a RRT hearing to hear the credibility concerns of the RRT. |
| Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v Awan (2003) 131 FCR 1 MZWMQ v Minister for Immigration [2005] FCA 1263 SAAP v Minister for Immigration (2005) 215 ALR 162 |
| First Applicant: | SZBYH |
| Second Applicant | SZBYI |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2478 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 9 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicants shall pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2478 of 2003
| SZBYH |
First Applicant
| SZBYI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 21 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There were three applicants named before the RRT, of whom two are applicants in the proceedings before this Court. They are a husband and wife. The following statement of background facts is taken from the applicants’ written submissions filed in my chambers on 28 November 2005.
The first applicant claimed before the Department of Immigration and the RRT to have a well founded fear of persecution for a Convention reason upon return to India, which he said was his country of nationality, and to Pakistan. The second applicant, claimed to have a well founded persecution for a Convention reason upon return to Pakistan, which is indisputedly her country of nationality. Both submitted Forms C to the Department of Immigration. The claims made by the applicants were that:
a)The first applicant is an Indian Kashmiri. His home in rural Kashmir was destroyed and his father killed by the Indian army in an attack on their village in late1992 (court book, page 19).
b)Though injured the first applicant fled the soldiers to another village, from where he was driven across the porous border to Pakistan. There he befriended a man, with the same surname, who gave him a job and treated him as an adopted son (court book, pages 19-20). The first applicant referred to this man as his “benefactor”.
c)He married the second applicant in Pakistan, in 1995 (court book, page 15). The first applicant was later to claim that on his benefactor’s advice, he passed himself off as the benefactor’s son to the second applicant and her family.
d)The benefactor’s real sons became jealous of the way that their father treated him, and spread rumours that he was Indian of unknown, and possibly Hindu originis. The also spread rumours that he was spying for India, amongst other things (court book, page 21.5).
e)To assist the first applicant, his “benefactor” arranged a false Pakistani passport to be issued to him, and helped the second applicant and he to leave the country and set up a business in Thailand (court book, page 19.7).
f)After the benefactor’s death in 1999 the real sons came to Thailand and forcibly took the business. They threatened him with severe harm if he were to return to Pakistan.
g)The first applicant claims that he is not a citizen of Pakistan and fears that he could not return safely to that country. He also fears that he would be persecuted in India as a Kashmiri Muslim (court book, pages 21-2).
h)The second applicant fears persecution for her association with her husband who is accused of being an Indian spy (court book, pages 32-33), and social ostracism as a single woman in Pakistan in the (likely) event that she is separated from her husband. She fears her own family because she refused to divorce him, as well as society at large.
A delegate of the Minister rejected these claims on 6 June 2000 (court book, page 84-95). The applicants applied to the RRT for review, although this application appears not to be in the court book. I note in passing that s.422B of the Migration Act 1958 (Cth) (“the Migration Act”) does not apply here, because the relevant application to the RRT was made before 4 July 2002, which was the date that s.422B commenced operation.
The first RRT decision made on 27 March 2002 (court book, pages 96‑110) was set aside by the Federal Court (Hely J) on appeal from the Federal Magistrates Court. The issue that arose on appeal was whether the RRT accorded the second applicant natural justice in refusing to accede to a request for an adjournment of a hearing of her evidence in circumstances where she was medically unfit to attend her hearing on the date nominated because she had recently suffered her fourth miscarriage.
Prior to the second hearing the first applicant submitted a further written statement in which he elaborated on claims made previously. (court book, pages 111-114). This included the assertions that he is identifiable as an Indian Kashmiri by his accent, and that his Pakistani passport is not genuine, although did not know if it was a counterfeit passport, or a real passport obtained by irregular means.
The second RRT decision
The second RRT reviewed evidence previously given and questioned the first applicant at length about perceived inconsistencies and implausibilities in his evidence (court book, pages 127-143). As relevant to the case before the Court, the RRT referred to his written evidence at court book, page 113 [20] to the effect that he is identifiable as an Indian Kashmiri by his accent and his claim that his benefactor’s sons were spreading rumours that he was a Hindu from India and an Indian spy. The RRT continued at court book, page 135.4:
I asked the applicant why they would have needed to spread these rumours if he had been identifiable as an Indian Kashmiri by his accent. Everyone would have known. The Applicant said that they had spoken Urdu at home. He said that he had tried to use the same accent when speaking Urdu. I referred to the Applicant’s evidence that he had deceived his wife’s family into believing that he was his benefactor’s son. …
It appears that the second applicant was questioned briefly (as recorded at court book, page 138-9), but that nothing of substance was put to her. In this respect the applicants’ solicitor, Ms D’Ambra wrote in a post hearing submission, “I note there has been no credibility issues (sic) with [the second applicant’s] evidence and note that she is a claimant.” (court book, page 116.2).
The RRT rejected the applicants’ case on credit. It simply did not believe them, and cited many perceived inconsistencies and implausibilities in coming to its conclusion. As to the issues referred to in paragraph 6 above the RRT said:
I reject the applicant’s evidence in this regard. I do not accept that he would have been able to pass himself off as his supposed benefactor’s son if he had in fact been identifiable as an Indian Kashmiri by his accent. (court book, page 148.6)
The RRT’s rejection of the second applicant’s evidence was expressed as follows, (court book, page 150)
In her submission dated 18 August 2003 the Applicant’s representative argued that there had been no credibility issues with the Applicant’s wife’s evidence. However, to the extent that she purported to corroborate that Applicant’s evidence regarding his passport and his Indian origins it is clear that the problems which I raised at the hearing with regard to the Applicant’s evidence equally cast doubt on his wife’s evidence. Having regard to my findings above I do not accept that the applicant’s wife’s family want her to divorce the applicant because they do not know his forefathers, because they are not sure if he is a Muslim or a Hindu or because of rumours that he is an Indian spy. I do not accept that, if the applicant’s wife returns to Pakistan now or in the reasonably foreseeable future, there is a real chance that her family will kill her because she has not divorced the Applicant. Since I do not accept that the Applicant’s passport is not genuine I do not accept that, as the Applicant’s wife said in her original application, the police in Pakistan might arrest her because they would not believe that she was involved in obtaining the applicant’s false passport.
The judicial review application
The applicants rely upon an amended application filed in court by leave on 9 December 2005. That application asserts:
(1)The second respondent committed jurisdictional error by failing to accord natural justice to the second applicant.
Particulars
a)Failing to put to her that she was not believed because her corroboration of the first applicant’s claims was rejected.
(2)The second respondent committed jurisdictional error in failing to comply with the requirements of s.424A of the Migration Act.
Particulars
a)Failure to disclose to the second applicant information provided by the first applicant to the effect that he is identifiable as an Indian Kashmiri by his accent in the manner provided by s.424A(2), and,
b)Failure to ensure, as far as is reasonably practicable, that the second applicant understood why that information was relevant to the review in terms of s.424A(1)(b), and,
c)Failure to invite comment as required by s.424A(1)(c).
The legislation
Section 424A of the Migration Act provides as follows:
(1)Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Submissions
Both the applicants and the first respondent made written and oral submissions through their counsel. Mr Karp notes that there appears to be an error in the RRT decision record in naming three applicants. He submits that there were only two who are the applicants before me. That issue is not material to the challenge to the RRT decision but I have no reason to dispute the submission.
The challenge to the RRT decision centres upon the first applicant’s claim that he was from Indian Kashmir and was identifiable by his Indian Kashmiri accent. Mr Karp (for the applicants) relevantly submits as follows:
The information that [the first applicant] was identifiable as an Indian Kashmiri by his accent went directly to his credibility and was part of the reason that his claim and therefore the second applicant’s claims were rejected. That information plainly comes within s 424A(1)(a).
The exceptions in s 424A(3) do not apply to this information, as far as [the second applicant] is concerned. The information was specifically about a person (the first applicant), and was not given by the second applicant for the purposes of the application. It is plainly not non disclosable information.
In those circumstances the Tribunal was obliged to give [the second applicant] notice in writing of the information (s.424A(2)(a)), explain its relevance to the decision (s 424A(1)(b) and invite a response (s 424A(1)(c)). Its failure to do so amounts to jurisdictional error (SAAP v Minister for Immigration (2005) 215 ALR 162)
The other natural justice issue arises from the rationale for the Tribunal’s rejection of [the second applicant’s] evidence – that [the first applicant] could not be believed and so his wife’s corroboration of his evidence was not to be believed. This method of reasoning does not involve jurisdictional error per se (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59), but that is not the point here.
The point is that natural justice requires fair procedures (e.g. Kioa v West (1985) 159 CLR 550, 583-4). The applicants acknowledge that fairness in the context of an individual case depends on the facts of the case. However, they submit that in general it will be unfair to reject a piece of evidence because of matters external to that evidence without disclosing the possibility of such a finding to the applicant. Those matters relied upon by the Tribunal which are external to her evidence are elements of the case against her.
This is plainly so in the case of documentary evidence. In WACO v Minister for Immigration (2004)131 FCR 531 the Full Court said, at [42]:
The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested. (cf [52]-[54].
There is no reason why the rejection of documents should be in a different position to oral evidence. In the case before the Court whether [the second applicant’s] evidence was believed depended on the Tribunal’s assessment of [the first applicant’s] evidence. That was a critical issue on which her application depended. It was not raised with her, and that is a failure to accord procedural fairness to her.
In his oral submissions, Mr Karp noted that the decision of Marshall J in MZWMQ v Minister for Immigration [2005] FCA 1263 at [24] presents an obstacle to the applicants. I am bound by the judgment. Mr Karp submits that the case can be distinguished on the basis that these applicants had made separate protection visa claims (albeit in a single application) whereas that appeared not to be the case in MZWMQ. Mr Karp also formally submits that the decision in MZWMQ is wrong.
In his oral submissions Mr Karp also put to me that the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) cannot be called in aid to assist the Minister by importing the plural to references to “the applicant”. He relies upon Blue Metal Industries v Dilly (1969) 117 CLR 651 from page 655. Mr Karp places significance upon references to persons other than the applicant in s.424A. He submits that this indicates a “contrary intention”.
Mr Karp notes (and it is not disputed) that s.422B of the Migration Act has no application in this case.
I put to Mr Karp that the claim, insofar as it relates to a claim of procedural unfairness, faces an evidentiary hurdle. Mr Karp conceded that the applicants had been unable (through lack of funds) to provide transcript of what occurred at the RRT hearing but submitted that it could be inferred from the record of the proceedings that the issue of the impact of the assessment of the first applicant’s credibility upon the acceptance of the evidence of the second applicant had not been put to her. Mr Karp referred specifically to the terms of the decision (including the discussion in the presiding member’s reasons of what occurred at the hearing) and the applicants’ advisor’s submission made after the hearing[1] that there were no credibility issues with the second applicant’s evidence.
[1] court book, page 116
Mr Lloyd makes the following written submissions:
The applicants lodged a combined application for protection visas (see item 1401(3)(c) of the Migration Regulations).
The applicants then lodged a combined application for review in the Refugee Review Tribunal (see reg 4.31A of the Migration Regulations). By this application, the Second Applicant authorised the Tribunal to communicate with the First Applicant about the application. The First Applicant subsequently appointed a migration agent to be an authorised recipient.
Both applicants were represented by the same law firm and submissions were made on behalf of both of them.[2]
[Both] of the review applicants attended the hearing before the Tribunal, as did their adviser.
The duty imposed by s 424A(1) does not apply to information “that the applicant gave for the purpose of the application” (s 424A(3)(b)). The term “applicant” should be construed as “applicant or, where applicable, applicants”. The latter construction is the correct construction unless there is a clear contrary intention by reason of s 23(b) of the Acts Interpretation Act 1901 (Cth), which provides:
In any Act, unless the contrary intention appears:
(a) words importing a gender include every other gender; and
(b) words in the singular number include the plural and words in the plural number include the singular.
[2] see, for example, court book, page 121
There is no clear contrary intention. It is quite unexceptionable that the obligations to provide particulars would not apply to any information provided by any combined applicants.
Moreover, this construction is consistent with authority. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263, Marshall J (exercising the appellate jurisdiction of the Court) held that s 424A(3)(b) operated to excuse the Tribunal from giving written notice to one applicant about adverse information provided by another applicant.
This ground should be rejected.
Procedural fairness
The applicants’ second ground is that it is unfair to reject a piece of evidence because of matters external to the evidence without disclosing the possibility of such a finding.
This ground must fail at several levels.
First, there is no evidence that the Tribunal did not sufficiently disclose to the Second Applicant the impact of adverse findings mooted in relation to the First Applicant’s evidence. There is no direct evidence at all of what occurred at the hearing. To the extent that there is any evidence, it reveals that the Tribunal indicated to the First Applicant during his evidence problems with his claim to have come from India and to have an Indian accent.[3] The evidence also reveals that the Second Applicant was present and that she and the First Applicant shared a common adviser. In these circumstances, it was not unfair for the Tribunal to have regard to its openly stated misgivings about evidence to the effect that the First Applicant was from India, whomever that evidence came from.
Secondly, there is no general principle that requires a decision-maker to disclose its thought processes in advance. There is an exceptional principle that this may be necessary if the conclusion reached is surprising.[4] However, given that the Tribunal stated its concerns in relation to the First Applicant’s evidence, its conclusion could not possibly be surprising.
Finally, the applicants’ reliance upon WACO is misplaced because the analogy is not a good one. In that case, the Court held that the Tribunal should not make a finding that critical evidence is not genuine (in substance that the evidence was not from who it purported to be from) without giving the applicant an opportunity to prove that the evidence is genuine. In the present case, the Tribunal did not consider that the Second Applicant’s evidence was not genuine in this sense; that is, there was no suggestion that the person purporting to be the applicant’s wife was an impostor (this may sound a bit silly but this is the extent of any analogy with WACO). It was just a case where the Tribunal disbelieved the content of the evidence, not its provenance. The relevant principle in such a case is that noted above in the preceding paragraph, which for reasons stated does not apply here.
[3] court book, pages 134-135
[4] Pilbara Land Council v ATSIA (2000) 103 FCR 539 at [72].
In his oral submissions Mr Lloyd put to me that the essential and significant issue before the RRT was where the first applicant came from and that both applicants were clearly made aware that that was the key issue[5]. Mr Lloyd submits, and it is not disputed, that both applicants were present together at the hearing. They also shared an advisor who was present at the hearing. Mr Karp submits that there was no inconsistency in the evidence of the two applicants. They were both saying the same thing. He submits further that the reason for the rejection of the first applicant’s evidence was country information[6]. The rejection of the second applicant’s evidence flowed from the same country information.
[5] court book, page 141 and see also court book, page 140
[6] see court book, page 149
Mr Lloyd submits that it is “absurd” to suggest that there was no credibility challenge at the hearing to the second applicant’s evidence.
At Mr Lloyd’s request, I reserved judgment to give the Minister further time to consider her position, bearing in mind the potentially significant impact on other cases that a judicial interpretation of s.424A(1), in combination with the Acts Interpretation Act, may have. By letter dated 15 December 2005 the Minister’s solicitors informed the Court that the Minister’s position would not change.
Reasoning
I consider myself bound by the decision of Marshall J in MZWMQ, which was a decision on appeal from this Court. At paragraph 24 of the decision His Honour said:
As a consequence of a matter raised on behalf the first respondent as a model litigant, the Court has also considered the possible impact on this appeal of the fact that the RRT gave no written notice to the first appellant about its intention to rely upon adverse evidence of the second appellant. Whatever other answers there may be to any submissions, if put, in reliance of that aspect of SAAP[7], s 424A(3)(b) of the Migration Act 1958 (Cth) operates to excuse the RRT from giving any written notice in the circumstances. That is because the second appellant was an applicant before the RRT; see by way of analogy, Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1 at [58].
[7] SAAP v Minister for Immigration (2005) ALR 162
Mr Karp invites me to distinguish this case from MZWMQ on the basis that, in that case, it appears that all of the protection visa claims were made by one of the three applicants whereas, in this case, the second applicant made claims in her own right (although in truth these were substantially, if not wholly, dependent upon the claims of her husband). As I understand the reasoning of Marshall J in MZWMQ, where more than one applicant makes claims in a single application to the RRT, the claims made by the applicants are taken to be claims made in common and hence both applicants are taken to have made the claims to the RRT for the purposes of s.424A(3)(b) of the Migration Act. It follows that there is no obligation on the RRT to give notice under s.424A of the Migration Act to any applicants making common claims in a single application of adverse and determinative information contained in such an application. I see no factual basis on which this case can be distinguished from MZWMQ. The relevant claims of the second applicant depended upon the first applicant’s claim to have come from Indian Kashmir. Her claims were corroborative of, and not independent of, his.
Although the Acts Interpretation Act was not referred to by Marshall J in MZWMQ it supports his reasoning. The effect of, s.23(b) of the Acts Interpretation Act is that references to “the applicant” in s.424A of the Migration Act are references to “the applicants” (where there is more than one), unless a contrary intention appears. I reject Mr Karp’s submission that a contrary intention can be found in s.424A in the words “or another person”. It is obvious, in my view, that those words must refer to someone other than an applicant. Where multiple applicants make a combined application to the RRT, all references to “the applicant” in s.424A should be taken to include all of the applicants.
A separate issue will no doubt arise in other cases whether, if notice is required pursuant to s.424A, the RRT would commit a jurisdictional error in failing to give notice separately to each and every applicant in a combined application. It is unnecessary to resolve that issue in this case. I note, however, that section E of the form of review application used in this case required the principal applicant (where there are multiple applicants) to agree to act as agent for the other applicants in the combined application for the purposes of correspondence to and from the RRT. It is certainly arguable that in such circumstances the RRT only needs to correspond with the principal applicant and, if it does so, it would be taken to have communicated with all of the applicants.
I find that there was no breach of s.424A of the Migration Act in this matter as the adverse information relied upon by the RRT in order to reject the review application of the second applicant was information presented by her through her husband in their joint review application to the RRT.
I also reject the claim of procedural unfairness. Both applicants attended a hearing before the RRT and both were present at the same time when the presiding member put his credibility concerns to the first applicant[8]. Both applicants were assisted by a migration agent as well as an interpreter in the Urdu language. It is impossible to believe that the applicants could have been left in any doubt about the significance of the presiding member’s concerns concerning the credibility of the first applicant’s claims. Procedural fairness did not require the presiding member to restate the obvious for the benefit of the second applicant, namely that his credibility concerns impacted as much on her application as upon her husband’s, given that her claims depended upon his. I accept Mr Lloyd’s submission that the essential and significant issue before the RRT was where the first applicant came from and both applicants could have been left in no doubt about the doubts held by the presiding member concerning the first applicant’s claim to be from Indian Kashmir. I find that procedural unfairness has not been established on the facts of this case.
[8] as evidenced by the court book on pages 134 and 135 and also pages 140-141.
I will dismiss the application.
Costs should follow the event. Although a novel issue was raised this was a case of only average complexity and no more than usual preparation was required on behalf of the Minister. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 December 2005
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