SZDDQ v Minister for Immigration - [2005] FMCA 33

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDDQ v MINISTER FOR IMMIGRATION

[2005] FMCA 33

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A, 424A(1), s.424A(2)
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Carlos v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 183 ALR 719
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
NARV v Minister for Immigration & Multicultural & Indigenous (2003) 203 ALR 494

Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 80
NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214

Applicant:

SZDDQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG916 of 2004

Delivered on:

11 February 2005

Delivered at:

Sydney

Hearing date:

18 November 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr D Jay

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG916 of 2004

SZDDQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 January 2004 and handed down on 3 February 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 19 August 2002 to refuse to grant the applicant a protection visa.

Background

The applicants are a family group of husband, wife and child. They are citizens of Iran and arrived in Australia on 22 September 2000. On

16 January 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 19 August 2002 the delegate refused to grant protection (Class XA) visas and on 29 August 2002 the applicants applied for a review of that decision.
The applicant husband (“the applicant”) was born on 31 December 1964 and is an Iranian national. He travelled to Australia using a passport issued in Iran on 13 July 1997 and the visas on which he and his family travelled to Australia were issued in Dubai on 16 August 2000. Further visitors’ visas were issued to the applicants in Brisbane on 24 December 2000 and on 24 April 2001.
The applicant claimed to fear persecution in Iran as a result of his conversion to Christianity. He said he had become interested in Christianity and began attending Church whilst working in Dubai, and this resulted in conflict with his fellow workers there. It also resulted in conflict with his wife’s family in Iran and assaults on him. On a visit to Iran he was assaulted by men who claimed to be from the security forces. The applicant and his wife feared to return to Iran because his wife’s family and authorities would continue to harass and persecute them.

The Tribunal’s findings and reasons

The Tribunal did not find the applicant’s account of his involvement in Christianity in Dubai convincing, for the reasons which it set out. It did not accept that he had been involved in Christian meetings or perceived to be a Christian (Court Book p.161) (“CB”). The Tribunal accepted that the applicant had been assaulted as he claimed, but did not accept either that the cause of those assaults was his involvement in Christianity or that they involved the Iranian security forces. In those circumstances the Tribunal could not be satisfied that the applicant suffered or faced a real chance of persecution for Convention reasons (CB p.162).
Although it was not strictly necessary, the Tribunal also considered whether the applicant could avoid harm at the hands of his wife’s family by living in a different part of Iran. The Tribunal concluded that the applicant could do so in light of his skills and ability to establish himself in different countries and it was reasonable for him to do so (CB p.163).
The Tribunal accepted that the applicant had been baptised and involved in religious activities in Australia, but (in light of the conclusion that the applicant had not been truthful about his circumstances in Dubai and the cause of the conflict with his wife’s family in Iran), the Tribunal was not satisfied that this had been done for any reason other than to boost his protection visa claim.
The Tribunal thought it very unlikely that the applicant would seek to practise Christianity if he were to return to Iran (CB pp.163-164). The Tribunal also considered what the applicant’s position would be, if, contrary to its findings, the applicant did seek to practise Christianity in Iran. It noted recent country information and concluded that the applicant would be able to practise his religion in Iran, notwithstanding that he was a convert from Islam (a status which, in the past, would have placed him at risk) (CB pp.164-165). Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia had protective obligations under the Refugee Convention.

Application for review of the Tribunal’s decision

On 29 March 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 20 August 2004 an amended application was filed and on 18 November 2004 the applicant’s Counsel filed in Court a further amended application. A submission from the applicant’s Counsel indicated that the purpose of the further amended application was to limit the application to one point which had been addressed in the amended application filed on 20 August 2004 but was now particularised in a different manner. Leave was sought to file the document in Court and, as there was no objection from the respondent, leave was granted.
The ground in the further amended application was as follows:
“1.The decision involves a jurisdictional error and a breach of the rules of natural justice in that the Tribunal failed to comply with the requirements of s.424A of the Migration Act 1958 (“the Act”) in relation to the provision of information made pursuant to the Act.
Particulars
a)The Tribunal relied on a summary of the departmental interview prepared by a delegate to the Minister (the Delegate’s Summary) in reaching its decision;
b)No copy or particulars of the Delegate’s Summary were provided to the Applicant by the Tribunal;
c)The Applicant disputed the accuracy of the contents of the Delegate’s Summary at the Tribunal hearing;
d)The Tribunal failed to ensure that the Applicant understood why the contents of the Delegate’s Summary were relevant to the Decision and invite the Applicant to comment on its contents; and
e)The contents of the Delegate’s Summary and the Applicant’s responses were the basis upon which the Tribunal made adverse findings as to credit against the Applicant and denied him the opportunity to explain any discrepancies in his evidence.”

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Applicant’s submissions

Mr D Jay of Counsel, appearing for the applicant, filed written submissions prior to the hearing. Counsel for the applicant applied for an affidavit of the applicant sworn and filed on 16 November 2004 (“the affidavit of the applicant”) and an affidavit of Sue Pursell sworn on 10 November 2004 and filed on 16 November 2004 (“the affidavit of Ms Pursell”) to be admitted into evidence.
The applicant claimed that in reaching its decision the Tribunal relied upon a summary of an interview with the respondent’s delegate contained in the Departmental files (“the delegate’s summary”). The usual practise of recording the interview did not occur (CB p.148). The Tribunal set out facts, which were extracted from the delegate’s summary (CB pp.148-149). A series of questions were put to the applicant during the Tribunal hearing which relied, at least in part, on the contents of the delegate’s summary on file. The applicant denied the contents of the delegate’s summary were accurate. The Tribunal did not provide a copy of the delegate’s summary to the applicant and it was not included in the summary of documents cited in the decision despite the Tribunal member clearly relying on it during the hearing.
It was submitted that the Tribunal committed a jurisdictional error by relying on the contents of the delegate’s summary to reach its decision regarding the applicant’s credibility without providing a copy to the applicant and claimed this was a breach of s.424A of the Act. In contravention of the requirement of the Act, it was submitted that the Tribunal failed to comply with each of the three requirements under s.424A(1) in that it did not provide a copy of the delegate’s summary to the applicant, no explanation of the document and its relevance to the proceeding was provided and there was no invitation to comment on its contents.
Counsel for the applicant referred to Carlos v Minister for Immigration & Multicultural & Indigenous Affairs per Merkel J at 725-726 where a summary of the application of s.424A appears. It was submitted that where there are inconsistencies between a Departmental record of interview and an applicant’s evidence, it is necessary for the Tribunal to apply s.424A of the Act to provide the applicant with an opportunity to clarify the inconsistencies: see Minister for Immigration & Multicultural Affairs v Al Shamry (“Al Shamry”) per Merkel J at [43] with whom Ryan and Conti JJ agreed. It was submitted that in Al Shamry the Tribunal’s decision was set aside because of the failure to comply with s.424A. The case concerned discrepancies between an applicant’s airport interview and the sworn statement of the applicant which led the Tribunal to make an adverse finding as to credit which, combined with other matters, resulted in the Tribunal not accepting the applicant’s claim. The Tribunal was found to have breached s.424A(1) by not giving the applicant particulars of the relevant statements.
It was submitted that the facts of this case require the Court to be even more vigilant in applying s.424A as there was no accurate record of interview, merely the delegate’s summary of the exchanges between her and the applicant. Counsel contended that the Tribunal relied on discrepancies between facts as asserted in the delegate’s summary and the sworn statement of the applicant to find a basis of adverse findings as to credibility. Where the applicant did not agree with the delegate’s summary he was frank in saying so (CB p.150). It was submitted that the applicant should have been given the delegate’s summary and an opportunity to comment on the reasons for discrepancies in the delegate’s summary and the facts that applied to his case as he understood them.
Counsel submitted that the information in the delegate’s summary was relevant and significant to the decision to be made and the Tribunal ought to have given the applicant the opportunity to comment on it: Kioa v West per Brennan J at 629; Minister for Immigration & Multicultural Affairs; Ex parte Miah at 97; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (“NARV”) per Ryan and Finkelstein JJ at 503. It was submitted that in failing to make the delegate’s summary available to the applicant the Tribunal failed to observe the rules of natural justice.
It was submitted that there was no basis for applying s.424A(3)(b) of the Act to waive the application of S.424A(1) and the Full Court of the Federal Court held in Al Shamry that, for the purposes of s.424A(3)(b), an “applicant” pursuant to s.424A meant “applicant for review by Tribunal of a ministerial decision” and “application” meant “the proceedings before the Tribunal which was the vehicle for such a claim for review”: per Ryan and Conti JJ at [17]. Counsel contended that the delegate’s summary was information specifically in respect of the applicant and was not given for the purposes of the proceedings before the Tribunal and, in any event, it was a summary of the delegate’s notes and recollections and therefore was not given by the applicant. It was submitted that the words of s.424A were mandatory; the Tribunal “must” provide the particulars to the applicant to ensure that the applicant’s application is reviewed fairly. For that reason s.474 of the Act did not manifest a legislative intent to allow a decision not made in accordance with s.474 to be a valid decision: see Minister for Immigration & Multicultural & Indigenous Affairs v Awan per Merkel J at [101] (with whom Gray and Marshall JJ agreed). It was submitted that there was no requirement on the applicant to lead evidence to explain what the effect of the failure to provide him of the delegate’s summary was: NARV at 504.

Respondent’s submissions

Mr G Kennett of Counsel, appearing for the respondent, filed written submissions and further written submissions prior to the hearing. The respondent contended that:
a)There was no failure to comply with s.424A because information derived from the delegate’s summary was not relied on and, in any event, the substance of the relevant ‘information’, and its significance, were made known to the applicant; and
b)There was no jurisdictional error because the Tribunal’s decision was supported by independent lines of reasoning which were not attacked.
It was submitted that the Tribunal’s “Findings and Reasons” (CB pp.160-165) placed no express reliance on the delegate’s summary or any inference drawn from it, and that the only suggestion that it played any role in the Tribunal’s decision (except as a convenient source of a summary of the applicant’s claims) (see CB pp.148-149) was a reference by the Tribunal to discussions that occurred at the hearing. Counsel submitted that those discussions (CB p.150) indicated that, at the time of the hearing, the Tribunal member regarded one aspect of the delegate’s summary as possibly undermining the applicant’s claims. That aspect was a record of the applicant having said that the business in which he was involved in Dubai was experiencing financial difficulties. It was submitted that the Tribunal member then appeared to take a tentative view that that information undermined the applicant’s account of why he had left Dubai and why he had not returned there. It was submitted, however, that no weight was placed on this information in the Tribunal’s findings and reasons. It was further submitted that the Tribunal did not make any finding regarding the applicant’s departure from Dubai but rejected his claim to have been involved in Christian activities on the basis of his inability to give details about his church involvement (CB p.161). Counsel submitted that it could not be concluded that the information played any role in the Tribunal’s reasoning and if it did, it was at most peripheral and not such as to engage the obligations pursuant to s.424A(1): c.f. VAF v Minister for Immigration & Multicultural & Indigenous Affairs (“VAF”) per Finn and Stone JJ at [41].
It was submitted that if the Tribunal did rely on the information in some material way, what followed was that one particular aspect of the delegate’s summary, namely what the applicant was recorded as having said regarding the state of the business in Dubai, was “information” which formed “part of the reason” for rejecting the applicant’s claims about being involved in Christian activities in Dubai. It was submitted that that would raise an issue as to whether the information came within s.424A(1). On that assumption, and assuming the correctness of the decision of Al Shamry, it was submitted that the issue was not resolved by the fact that the “information” in question had originated from the applicant.
Counsel submitted that s.424A(1) of the Act imposes duties on the Tribunal in relation to “information” that is or may be part of the reason for affirming the decision under review and three important points follow:
a)It was only the information that was potentially significant that had to be disclosed to the applicant – not the contents of the delegate’s summary as a whole.
b)The applicant was required to be made aware of the “gravamen or substance” of the information and not necessarily to be given a copy of the actual document: see VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs per Kenny J at 95 [48], citing Al Shamry at 40-41 [41].
c)The obligation did not extend to exposing the Tribunal’s “subjective appraisals, thought processes or determinations” about the information: see VAF at 477 [24].
It was submitted that the material before the Court revealed that the Tribunal did canvass the contents of the delegate’s summary, to the extent that they constituted “information” potentially adverse to the applicant, with both the applicant and his wife. Counsel contended as follows:
a)The transcript of the Tribunal hearing (“the transcript”) indicated that, when the Tribunal questioned the applicant about his history, it noted the applicant’s claim to the Department that the business was not doing well. The applicant said that he could not remember saying that and discussion ensued (transcript pp.7-8). The transcript contained many gaps (apparently due to indistinct sections of the tape), but the Tribunal’s summary of the hearing made it clear what had occurred (CB p.150). Clearly, this aspect of the delegate’s summary was discussed and the applicant was able to make clear his position that the summary was inaccurate in that respect.
b)The Tribunal member referred to another aspect of the delegate’s summary in exploring the reasons the applicant had not become involved in church activities in Australia sooner.
c)The Tribunal member indicated the potential significance of the information concerning the business (transcript p.26) and noted:
“Why didn’t you just come here on holiday and go straight back to Dubai before your baby was born? Could it have been because of what you told the case officer to start with (indistinct) the business wasn’t going very well? …… And what it looks like is a person who worked in (indistinct) in the Middle East for – for some years but his business was not going well. You got the visa to come to Australia …”
d)The applicant’s wife also gave evidence and the Tribunal put to her the information concerning the state of the business (transcript p.34).

It was submitted that no unfairness resulted from the information being raised orally rather than by the procedure detailed in s.424A(2) and in those circumstances, the substantive obligation in s.424A(1) was complied with and there was no error going to jurisdiction: NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“NAHV”) at [22]-[25].
Counsel submitted that the Tribunal reasoned to its ultimate conclusion in a number of ways:
a)It rejected the applicant’s claim to have been involved in Christian activities in Dubai, and regarding his involvement since coming to Australia as self-serving. It thought that there was only a remote prospect that he would seek to practise Christianity in Iran.
b)It considered that, if the harm he had experienced was linked to a Convention reason, he could reasonably avoid that harm by relocating within Iran.
c)It considered that if the applicant did seek to practise Christianity in Iran he would not be persecuted for doing so.
It was submitted that (b) and (c) above, if taken together, comprised a complete answer to the applicant’s claim and the fact that the Tribunal did not regard (b) as necessary (in light of its findings on (a), was not determinative. Counsel contended that (b) assumed that the applicant had come into conflict with his wife’s family as a result of his religious activities, and concluded that he could avoid that harm by living elsewhere in Iran and (c) assumed that he would be an active Christian in Iran and examined whether he would face persecution on that account. It was submitted that no attack was made on (b) and (c) and the information derived from the delegate’s summary had no relevance to them and could not be regarded as part of the reason for taking these views. Counsel contended it followed that either:
a)for this reason, the information was not considered “part of the reason for affirming” the delegate’s decision (cf s.424A(1)(a)), since it was only part of the basis for one of two independent lines of reasoning, and therefore did not engage s.424A: cf VAF; or
b)any failure to comply with s.424A was not material in the circumstances, and did not lead to the invalidity of the Tribunal’s decision: cf NAHV.

Reasons

It was the applicant’s contention that at the Tribunal hearing the Tribunal member relied extensively upon the delegate’s summary of interview as the central basis upon which it made conclusions regarding the applicant’s credibility. The interview took place on 2 August 2002 but was not recorded. The summary was consequently prepared by the delegate on 5 August 2002 and was based on the delegate’s recollection and the interviewing officer’s notes and was placed on the Tribunal member’s file. The applicant contended that the delegate’s summary was relied upon by the Tribunal member in reaching conclusions regarding the applicant’s credibility and in those circumstances it should have been provided to the applicant pursuant to s.424A of the Act.
The opposing contention made by the respondent was that the relevant information in the s.424A sense was not relied upon by the Tribunal and therefore was not required to be disclosed. The respondent argued that the distinction between information and the Tribunal’s thought process about it can be a fine one and in some cases the Tribunal has to expose its thought processes to some degree when telling an applicant why the information is relevant. The respondent argued that the issue in this case was the extent to which the Tribunal was required to expose this information to the applicant and contended it was not required to do any more than it actually did.
The applicant contented s.424A of the Act had been the subject of a large amount of litigation or applications to both this Court and the Full Federal Court. It was submitted that the facts upon which s.424A applied in this case were unusually clear in that ultimately the application of s.424A required there be a finding that there was a lack of procedural fairness.
The applicant Counsel contended that the apposite authority in this case was the Full Federal Court decision of Al Shamry per Merkel J at [52] (Ryan and Conti JJ agreed):
“A substantial reason given by the RRT for affirming the delegate’s decision was that it rejected the respondent’s claims to have been imprisoned and mistreated by the authorities in Kuwait on numerous occasions during the 1990’s. The rejection of those claims was based largely upon the RRT’s adverse conclusions as to the respondent’s credit as a result of the ‘numerous’ inconsistent statements it found had been made by him.”
And then his Honour goes on to discuss the effect of the entitlement to procedural fairness at [53]:
“… It is precisely in such circumstances that s.424A is to have a role as, if the relevance of the information had been pointed out to the respondent, he may have been able to explain the inconsistencies. He was denied that opportunity ………The RRT’s failure to comply with s.424A deprive the respondent of the opportunity afforded him by the Act to answer or explain the things he was reported to have said in the airport interview.”
The applicant relied on the Full Court’s finding in Al Shamry in submitting that the delegate’s summary was a document which unquestionably the Tribunal member relied upon and went a long way to determine findings of credit about the applicant. Further, when adverse findings of credit were found, the applicant contended that the delegate’s summary that was the only direct evidence upon which the Tribunal could reach its conclusion.
In support of the respondent’s contention that the relevant information in a s.424A sense was not relied upon by the Tribunal and therefore not required to be disclosed, the Full Federal Court decision of VAF per the joint judgment of Finn and Stone JJ at [12]:
“The ground relied upon is that the Tribunal breached a statutory obligation when it took into account as one of the factors which undermined the applicant’s claim of apprehended persecution, the facst that the applicant had not asked for help from ‘contacts’ in Melbourne and that he had delayed making an application for a protection visa.”
That was the point that was said to give rise to the obligation. The section set out by their Honours at [13] and [14] contained an extract from the Tribunal’s reasons, the last sentence of that extract gives a clue to the way the Tribunal regarded the particular information:
“The Tribunal finds his behaviour of significance as it is not the behaviour of a person who fears persecution …”
Then at [23] are set out the two relevant requirements:
“Section 424A(1)(a) has two presently relevant requirements. First the Tribunal must possess ‘information’. Secondly, the Tribunal must consider that that information ‘would be the reason, or part of the reasons’ for affirming the decision under review.”
Their Honours then turned to what constitutes information for these purposes and set out three accepted compositions from case law. At [26]-[27] their Honours note that the distinction between information gained by the Tribunal and its thought processes can be a fine one, and sometimes – at least in some cases – the Tribunal has to expose its thought processes to some degree in the process of revealing the relevance of the information. Their Honours at [28], referring to VAF say:
"... the Tribunal’s subjective thought processes explain both why it isolated and referred to the evidence ... and why it attributed to that evidence the significance it did. It was perceived to be relevant to the decision it had to make. Those thought processes, though, did not rob the Tribunal’s knowledge of the appellant’s behaviour of its character as ‘information’."
Then at [29] their Honours turned to the second requirement of subsection (1):
“… Was the information the reason or a part of the reason for its decision?”
An important point then followed:
“We cast the matter in this fashion because we agree with the majority view in Paul’s case, that, though the subsection addresses the matter prospectively (i.e. ‘the Tribunal considers would it be the reason etc.”), the question of compliance with s.424A(1)(a) is to be judged retrospectively in light of the Tribunal’s actual decision.”
Their Honours then turned to the question of whether the Tribunal could be said to have relied upon particular information in that case. At [33]:
“… When a Tribunal’s reasons are to be 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.”
At [39] their Honours then concluded:
"Given the individual adverse credibility findings, each having its own context and explanation, we are unable to regard the statement in the concluding paragraph of the reasons referred to earlier as being anything other than a compendious reiterative description of the various individual findings already made. We do not consider it to be the credibility finding of the Tribunal based on all of the matters that preceded it. Equally we do not consider that the Tribunal’s reasons, fairly read, demonstrate a process of cumulative and interdependent reasoning leading to an ultimate adverse conclusion."
It was submitted that what can be drawn from VAF was that particular information did not seem to have been significant in the Tribunal’s reasoning when making an adverse credibility finding. It was not something that could be isolated from a completely independent line of reasoning since it was one of a number of things that contributed to the decision. Nevertheless, their Honours held that, because it was relatively unimportant, it was not something that was required by s.424A(1) to be disclosed. It was noted that Merkel J dissented from that final conclusion.
I now turn to what the Tribunal did in this case with the document that we refer to as the delegate’s summary and make the following observations:
a)On pages 8 and 9 of the Tribunal decision (CB pp.148-149) is a summary of the applicant’s interview with the delegate consisting of six dot points.
b)On page 10, at paragraphs 2 and 3 (CB p.150) there is a further reference to the summary of the delegate’s notes.
c)The Tribunal member raised with the applicant that the business in Dubai was not doing well and it was recorded that the applicant denied saying that.
d)The applicant’s denial was both acknowledged and discussed in summary.
e)The Tribunal member recorded asking the applicant why the delegate’s summary noted that the business was experiencing difficulties. The applicant responded that he did not know and the Tribunal member recorded the discussion and response.
There were no findings recorded as to the effect the delegate’s summary established anything and no findings adverse to the applicant.
The conclusions of the Tribunal’s decision are set out at page 21 under “Findings and Reasons”, (CB p.161). The Tribunal noted that it found a number of aspects of the evidence problematic, but it is important to note there was no generalised finding that the applicant was a person of poor credibility. It will be noted that some of the applicant’s assertions are accepted but critically not all of them.
The Tribunal then addressed the applicant’s claimed interest in Christianity and gave reasons for rejecting that claim. The Tribunal noted that he was not able to provide any basic information about the Church with which he claimed to have been involved. The applicant did not know its name, the name of its pastor or its denomination. The Tribunal also noted that the applicant had apparently made little effort to become involved in Church activities in Australia. The Tribunal found this rather curious however there was no reference to any inconsistencies in evidence or any reference to the delegate’s summary. It was noted that there was no speculation by the Tribunal as to the reasons why the applicant left Dubai and whether his business was doing well or not.
In respect of the applicant’s failure to pursue his interest in Christianity, he told the delegate that he did not go to Church because his wife’s relatives did not like it and because of his lack of English skills. There was no assertion made by the Tribunal that this was an inconsistency or deficiency in the applicant’s evidence. The Tribunal simply stated that it did not consider either of these reasons to be satisfactory. When the Tribunal came to making its decision it properly confined itself to the claim of Convention persecution that was advanced by the applicant husband was due to his interest in Christianity. There was no weight placed on the reasons why the applicant left Dubai.
The next issue I turn to is the extent and nature to which the information needed to be raised with the applicant. The information, is not the physical document itself, but its actual content. More particularly it is what is contained in the document, mainly the information that the Tribunal thought was, or might have been, a reason for disbelieving the applicant. In the present case the focus was on the business in Dubai. The Tribunal decision contained a discussion or exchange relating to how the business was going and whether the applicant had told the delegate it was in trouble. The applicant was able to put fairly clearly his position that the business was operating satisfactorily and he had not told anyone that it was in trouble.
The respondent claimed that the information was provided to the applicant orally during the hearing but concedes it was not put to him in the way contemplated by subsection (2) of s.424A. In the written submissions it was contended that a breach of that procedural requirement did not lead to jurisdictional error if the main obligation of subsection (1) had been complied with: NAHV of 2002 per Carr, Keifel and Alsop JJ at [22]-[25].

Conclusion

The key issue in this case is the extent to which the Tribunal was required to expose the information contained in the summary of interview prepared by the delegate on or about 5 August 2002. I have heard compelling arguments from both Counsel and having re-read the decision in conjunction with the submissions, I accept the arguments tendered by the respondent and particularly the reasoning in the authority of VAF. Consequently, I believe that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 11 February 2005