SZCFW v Minister for Immigration - [2004] FMCA 909

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCFW & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 909

MIGRATION – RRT rejected claim of religious persecution in South Korea – information on the religion not given to applicant – not specifically about the applicant – no statutory duty to invite comment – common law procedural fairness excluded.

Migration Act1958 (Cth), ss.483A, 424A(1), 422(4)A, 422B, 424A(3), 422(1)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 204 ALR 624

Applicants:

SZCFW & SZCFX & SZCFY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2814 of 2003

Delivered on:

19 November 2004

Delivered at:

Sydney

Hearing date:

19 November 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

Mr R Nair

Solicitors for the Applicants:

Adrian Joel & Co

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Objection to competency upheld.
Application dismissed.
The applicant to pay the respondent's costs in the amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2814 of 2003

SZCFW & SZCFX & SZCFY

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 14 October 2003 and handed down on 6 November 2003. The application is brought by a mother and her two children who were all applicants for a protection visa lodged on 16 April 2003. I shall refer to the mother as "the applicant" since it was her claims for protection which provided the grounds for the visa application.
Her claims were summarised by the Tribunal at the start of its discussion under the heading: "Findings and Reasons":
The Tribunal is satisfied that the applicant is a citizen of the Republic of Korea (South Korea). The applicant claimed in writing to fear persecution from society in general and also from fanatical religious persons because of her religious beliefs. She claimed she is a member of the “Nam Mi Ho Rang Gae Gyo” religion and that she and her children have suffered rejection, her husband’s business interests have suffered and that she is unable to obtain employment in Korea due to her religious beliefs. She fears that if she returns she will not be able to find work, that she and her children will be rejected and that she and her children could be harmed by radical religious persons opposed to her religion. At the hearing the applicant claimed that she had been a member of the abovenamed group from 1981 to 1996 but withdrew from the group due to a loss of belief in their principles. She claimed that as a result of her withdrawal from the group she was threatened with harm and that her husband’s business interests were damaged. She claims to fear returning to South Korea as members of the group will attempt to harm her.
The Tribunal had earlier in its reasons extensively set out the applicant’s statement attached to her visa application, and also described what she had said in the course of the hearing.
The Tribunal's reasons for affirming the decision to refuse the visa were:
The Tribunal finds that the applicant is not a credible witness for the following reasons.
The Tribunal finds that the claims made by the applicant at hearing were vastly different from her written claims. The Tribunal put it to the applicant that the claims made at hearing differed in significant aspects from the claims made in writing. The applicant agreed that she provided greater detail to her claims at hearing but did not accept that her claims differed significantly. The Tribunal notes that the applicant claimed in writing that she feared persecution from members of Korean society and other religious groups because she was a member of the Nam Mi Ho Rang Gae Gyo religion. She claimed that she and her husband had severe marital difficulties and that she would face possible detention, discrimination and social rejection if she returned to South Korea. However at hearing she claimed that she left the group in 1996 and that she feared persecution at the hands of members of the group because they would not tolerate her withdrawal from the group. She claimed that she had been threatened by members of the group and that her husband’s business had been damaged by members of the group. She stated that she and her husband were living apart but not separated. The Tribunal considers that the vastly different claims indicate a lack of credibility in the applicant’s evidence.
The Tribunal does not accept the claims made in writing that the applicant is a member of Nam Mi Ho Rang Gae Gyo religion, that she faces possible detention, social rejection and discrimination for reasons of her membership of this group if she returns to South Korea.
With respect to the claims made at the hearing, the Tribunal does not accept that the applicant was a member of the Nam Mi Ho Rang Gae Gyo religion or the Soka Gakkai religion or any of the “new religions” referred to in the country information cited above. The applicant claimed that she was a member of the Nam Mi Ho Rang Gae Gyo religion from 1981 to about 1996 however she did not know the correct name for the group but referred to it by the name of the chant made by its followers. She was not able to describe the beliefs of the group other than the group’s opposition to conscription. The country information indicates and the Tribunal accepts that the group’s beliefs are based on Buddhist teaching with some refinements taught by the group’s founders. Further there are specific teachings and texts which set out the practices of the group. Despite the group’s Buddhist origins and beliefs the applicant told the Tribunal the group believed in God and were similar to Christians. The Tribunal considers that if the applicant had been involved in the group from 1981 to 1996 that she would have a greater knowledge of the group’s practices and beliefs particularly if she attended on a regular basis as claimed. Her only knowledge of belief was the group’s opposition to military service.
As the Tribunal does not accept that the applicant was ever a member of the group as claimed it does not accept that she decided to leave the group in 1996. As the Tribunal does not accept that she was a member and left the group in 1996 it does not accept that members of the group interfered with her husband’s business because of her claimed withdrawal from the group or that members of the group stalked her and made threats against her and her husband’s business.
The Tribunal then made further points explaining its general conclusion that it was not satisfied that the applicant had a genuine fear of persecution or that she would face a real chance of persecution if she were to return to South Korea now or in the foreseeable future. It is not necessary for me to examine these.
In the above reasons it is apparent that the Tribunal had assessed the applicant's credibility against information which it had collected concerning the religious group identified by the applicant.
The single ground of review argued before me by counsel for the applicant was pleaded in the application in two paragraphs:
1. Subsequent to the hearing conducted the Second Respondent obtained significant relevant material which was adversely applied and which constituted an important ground for the findings. The material, namely with respect to the interpretation of the meaning of the term “Sokai Gakkai” also contributed to the perception as to the credibility of the applicant’s evidence.
2. The nature of the material may be characterised as information which should be disclosed by virtue of the operation of Section 424A(3) of the Migration Act. Failure to disclose such information to the Principal Applicant prior to the review decision being made gives rise to a denial of natural justice and jurisdictional error.
In short, it was submitted that the Tribunal was in breach of its duty under s.424A(1) - not (3) - of the Migration Act. That section provides:
Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Also relevant to the Tribunal's duty to disclose adverse information is s.422B(1):
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Counsel for the applicant accepted the submission of counsel for the respondent that s.422B confined to such rights as are given by s.424A all the rights of his client in relation to procedural fairness in relation to being given an opportunity to comment on adverse material relied upon by a Tribunal. He therefore addressed his submissions to the ground as framed above.
I think both counsel took a correct view of the effect of s.422B in this respect (c.f. French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [57-59], and earlier in WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [57]. See also: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [139]).
Counsel for the respondent made a sensible concession that the Tribunal did take into account information concerning the name, characteristics and doctrines of the religious group of which the applicant claimed to be, or to have been, a member, without referring that information to the applicant and giving her an opportunity to make submissions or obtain further information rebutting what was in it. The concession was in the following terms: "The Minister accepts that the information obtained from Professor Cho on 11 October 2003 was received after the hearing and was not sent to the applicant for her comment. The Minister also accepts that that information formed part of the reasons for the Tribunal's conclusion that in fact the applicant had never been a member of the religious group concerned."
The difficulty facing the applicant’s ground of review, which has arisen after the application was filed, is that a recent case of the Full Court of the Federal Court has adopted a construction of the exclusionary provision in s.424A(3)(a) which, in my opinion, plainly excludes the undisclosed information from the duty under sub s.424A(1).
In Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264, Beaumont J referred to previously expressed divergent views on the meaning of s.424A(3)(a), and concluded:
68It is true that in subs (3)(a) the word ‘and’ is interposed between ‘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’. Taken out of context, the insertion of the word ‘and’ could suggest that an additional ingredient is introduced. But one of the dictionary definitions of ‘and’ is ‘also’. In my view, it is used here in the sense of ‘even if’.
69In my opinion, consistent with the views expressed in VHAP, it is this meaning which is consistent with the present context. Thus one would read subs (3)(a) as follows: ‘(3)(a) that is not specifically ... [even if] just ...’.
70So construed, subs (3)(a) would have a purposive meaning which would preclude, as Parliament must have intended, a possible argument that reference to a class would be taken as a reference to all individuals falling within it.
Merkel and Hely JJ at [126] referred to controversy in the Court whether s.424A(3)(a) contains two criteria or whether an “alternative interpretation” should be taken, and described the latter:
The alternative view is that reference to the class of persons is not another criterion to be met but rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it.
Their Honours adopt that alternative view when concluding:
[138] As is demonstrated by the differences of opinion within the Court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14].
Counsel for the applicant endeavoured to persuade me that this interpretation was not intended to be given effect in the general terms of the above passages, and submitted that it should be confined by reference to the facts in NAMW. He then attempted to distinguish the present facts from the facts in that case. I had difficulty following the factual distinction he sought to make, but, in any event, I consider that sitting in this Court I should apply the general construction expressly adopted by the most recent decision of the Full Court in the passages I have extracted above. It produces a simple test. If I form the opinion that the present information was not "specifically about the applicant", then the right of procedural fairness provided for under sub s (1) is unavailable.
The “information obtained from Professor Cho” is in evidence before me. It is contained in an e-mail addressed to “Peter Morrow”, whose position is not shown in evidence, but who I infer held a research position on the staff of the Tribunal. The terms of the request are not in evidence. In its reasons, the Tribunal says: "in response to a request for information by the Tribunal, Professor Chiu of Che Chu University provided the following information on the Sok Hui Kai Group on 11 October 2003." The full text of his email is as follows:
My name is Sung-Youn Cho. I work as a Professor, Department of Sociology, Cheju National University. Professor WonBum Lee requst to me to give some information to you. I understand what you want. And I want to help you as possible as I can. But All of my research papar were written by Korean language. And I can not translate in English in a short time.
You mentioned about the “Nam Mi Ho Rang Gaie Gyo”. I also have interested about that. I had been researched about that New Religion, even though not yet finished.
From now on, I answer to your questions shortly.
1.   “Nam Mi Ho Rang Gae Gyo” is not the name of the group but Japanese words of chant of the believers. You can read as a “Namu Myo Ho Ran Gae Gyo” correctly. It means that we want to return to the eternal Buddhist teaching.
2.   Official Name of this New Religion is the “Sokagakkai” in Japan, and SGI (Soka Gakkai International) in the world. It means Academic Association for the creation of the new value. Originally it was one of the ordinary members’ groups in the Buddhist Sect in Japan, i.e. Nichiren Shoshu (Headquarter composed of the Monks) from 1938. But they were separated from Nichiren Shoshu at 1990.
3.   They are one of the most influential groups in Japanese Society. The members of the Sokagakkai were estimated over 10,000 thousand in Japan. “Gomeito”, political party is also belong to this New Religious Group. It was spread to the many countries. The activities of the Sokagakkai in Korea started early 1960’. Now members of this group over 600 thousand in Korea.
4.   During the 1960’ and 1970’, the policy to the Sokagakkai of the Korean government were very hostile one. Of course it was based on the “Anti-Japanese Consciousness” widely spread in the Korean Society. Because of that reason, their activities in Korea were confined within their very narrow “Bunka Gaikan”. They called their own Tempel as that. But recently the situation was slightly changed. So they started their activities towards the Korean Societies very carefully.
It was my brief comments. If you want to know more, you can search the websites: [giving Korean and Japanese sites].
If you have more questions about that, please do not hesitate to contact me.”
Counsel for the applicant submitted that I could not conclude that the information obtained from Professor Cho was not "specifically about the applicant". He pointed out that the request for information was made after the hearing in the present matter, and apparently for the purposes of the present decision making of the Tribunal in this matter. He submitted that it was possible that Professor Cho had responded to a request which referred to her specific circumstances, and that the response would be information “specifically about” her.
In my opinion, on a reading of the response it is probable that the request was framed as a request for general information about a religious group. In all the circumstances, I do not consider that it is likely to have made any reference to the present applicant as an individual or to her individual circumstances. The proceedings before the Tribunal were confidential, and it is improbable that a staff member would have made reference to any information which “concerned” the applicant (c.f. s.439(2) of the Migration Act).
In any event, I think the characterisation required by s.424A(3)(a) is a characterisation of the "information" as it appears in the record containing it. Reading Professor Cho’s e-mail and considering the nature of the information contained in it, I consider that none of it should be characterised as being "specifically about the applicant."
I am therefore satisfied that the information relied upon by the Tribunal was excluded by s.424A(3) from the duty of procedural fairness which may otherwise have arisen.
In view of the concession by counsel for the applicant that the duty under s.424A(1) is exhaustive of the Tribunal's duties in relation to the disclosure of adverse information, it is not necessary for me to explore whether in fact, in the present case, unfairness resulted to the applicant from the failure to provide the information to the applicant.
However, in this respect I should note that the applicant at no stage has put forward any information about the religious group to which she claimed to belong. In her application for protection visa she stated that "more detailed information about the religion, Nam Mi Ho Rang Gae Gyo” would be provided later. But this was never done. When the delegate refused the visa application, a prominent reason given was that the applicant had not substantiated her fears. The applicant was therefore on clear notice at all times before the Tribunal that it would need information about the religion she claimed to belong to and corroboration of her claims that its members had a basis to fear persecution.

The applicant, in an affidavit before me, drew attention to the following exchange recorded on the transcript of the hearing before the Tribunal:
CO:But you’re not a member of this group anymore
A:Well even though I’m a formal member of this religious group, this group of people keep searching for their previous members
CO:Is there any published information on this religion?
A:A member – if you need this documents or material I will be able to ask a friend of mine in Korea to send me copies of this information.
CO:No I just wondered if you had any published information with you.
A: Well Member I don’t have the documentation or information with me because when I left Korea for Australia I left all the household items including all the documents behind me.
CO:OK. Now what do you fear about going back to Korea?
The applicant said in her affidavit that, had she known that information would be used that said different things to what she said about her religion, she would have obtained and provided further information. The identity or content of what she would have put forward was not presented to the Court.
As I have indicated, I do not need to rule whether in the above circumstances the omission of the Tribunal to provide an opportunity for the applicant to respond to the information from Professor Cho resulted in a breach of procedural fairness according to the principles of common law. The applicant’s ground of review must fail due to the effect of s.422 and the exclusion in s.424A(3).
As a result of my finding that there was no breach of the duty under s.424A and that the claim that jurisdictional error resulted therefrom has not been made out, I must conclude that the Tribunal’s decision is a privative clause decision and the relief sought in the application is barred by s.474(1) of the Migration Act.
I therefore uphold the objection to competency of the respondent, and dismiss the application.

RECORDED : NOT TRANSCRIBED

I order the applicant to pay the respondent's costs in the amount of $5000.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 6 December 2004