SZDIL v Minister for Immigration
[2006] FMCA 431
•12 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDIL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 431 |
| MIGRATION – RRT decision – reference to delay in making visa application – source of information as to date of application – whether a part of the reason for affirming the delegate’s decision – failure to serve invitation under s.424A(1) – no discretionary reason to refuse relief – matter remitted. |
| Acts Interpretation Act 1901 (Cth) s.8 Migration Legislation Amendment Act (No.1) 1998 (Cth) Sch 3 cl.20 |
| Elrifai v Minister for Immigration [2005] FMCA 1484 Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27) NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 VWFP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicants: | SZDIL, SZDIM, & SZDIN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1128 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 30 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Dobbie |
| Solicitors for the Applicants: | Parish Patience Immigration |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 17 March 2004 in matter N02/44906.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 5 June 1997.
The first respondent must pay the applicants’ costs in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1128 of 2004
| SZDIL, SZDIM, & SZDIN |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 16 April 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 February 2004 and handed down on
17 March 2004. The Tribunal affirmed a decision of a delegate made on 5 June 1997 which refused to grant protection visas to the applicants. The delay in the Tribunal’s proceedings is accounted for by an earlier decision of the Tribunal handed down on 12 May 1998, which was quashed in 2003 by consent at the end of the Muin and Lie litigation.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
Due to the existence of the previous litigation at the time of the commencement of the privative clause provision in s.474, the court’s jurisdiction under s.483A is not subject to that provision (see cl.8 of Sch.1 of Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368). The applicants are, therefore, entitled to relief if they can make out a ground for the issue of writs of certiorari and mandamus under s.39B of the Judiciary Act 1903 (Cth) on general “common law” principles. However, as I shall indicate, this point is not material, since the applicants allege jurisdictional error on the part of the Tribunal.
The applicants are a husband, his wife and daughter, who first arrived in Australia in February 1994 on visitors visas which allowed them multiple entry for visits of up to three months prior to 5 December 1995. Their claims for protection visas were lodged on 7 April 1997, at a time when the husband was held in immigration detention. Since the family relied upon the history of persecution claimed by the husband, I shall refer to him as “the applicant”.
The sole ground of review before me alleges a procedural error on the part of the Tribunal, and it is unnecessary to detail the applicant’s claims to qualify for refugee protection in Australia. In short, he said that he was an Indonesian national of Chinese ethnicity and Christian religion. He claimed to have suffered discrimination and ill-treatment as a result of his race and religion. He also claimed to have engaged in political activities as a student supporter of a democratic party, the PDI, and as a result to have suffered periods of detention and abuse at the hands of “the army” in August 1990 and March 1992. He claimed that following the last of these events, he was of continuing interest to the Indonesian army, and that this led him to move about and then seek refuge in Australia.
The Tribunal’s reasons for not being satisfied as to these claims do not need to be detailed. In relation to his claims based on race and religion, the Tribunal considered country information concerning the situation of Chinese Christian Indonesians, and said that it “is unable to be satisfied that there is a real chance that the applicant will suffer persecution arising out of anti Chinese violence in the reasonably foreseeable future.” It was not satisfied that “any discrimination the applicant may experience now or in the reasonably foreseeable future would amount to “serious harm” as to constitute persecution within the meaning of the Convention”, and it was satisfied that state protection was available and adequate for Christians in Indonesia if further civil unrest were to occur. The ground of review in the present application does not concern the Tribunal’s procedures or reasoning in relation to these conclusions.
The Tribunal’s reason for rejecting the applicant’s political claims was, essentially, an opinion as to the credibility of key elements in the history presented by the applicant. It said at the commencement of its discussion:
The Tribunal did not find the applicant to be a truthful or credible witness in relation to his claims that he was in hiding in Indonesia from 1992-1994 and that the army were looking for him during this time for the following reasons.
It then referred to four reasons:
i)its opinion that “the applicant did not have the kind of political profile that would attract the continuous attention of the army;”
ii)the “vague and evasive” evidence given by the applicant at the Tribunal hearing as to where he worked from 1992-1994;
iii)inconsistent claims that he was in hiding over that period and as to his places of residence; and
iv)inconsistent claims that he was in hiding over that period and that he was employed by a company in one location from May to December 1994.
No issue arises in relation to the above reasoning. The Tribunal’s reasoning in relation to the political claims then continued:
The Tribunal does not accept that the applicant was in hiding in Indonesia that the army were looking for him during this time. It follows that the Tribunal does not accept that when the applicant returned to Indonesia in January 1995 he was warned by the manager of the company that the army were looking for him. The Tribunal finds the fact that the applicant returned to Indonesia in January 1995 to go back to work, complete unfinished business and return the company car further indicates to the Tribunal that the applicant was of no interest to the authorities when he left Indonesia.
The applicant returned to Australia in 1995. He did not apply for a protection visa until April 1997. The Tribunal finds the applicant’s delay in applying for a protection visa further indicates to the Tribunal that he did not have a subjective fear of being of being persecuted when he left Indonesia.
The independent information before the Tribunal indicates that there have been significant changes in Indonesia since the applicant left Indonesia in March 1995. President Suharto resigned from the Presidency on May 21, 1998. After the resignation of President Suharto President B.J. Habibie took the reigns of power. In October 1999 Abdurrahman Wahid and Megawati Sukarnoputri were elected to the positions of President and Vice-President respectively. On 23 July 2001 Megawati Soekarnoputri was sworn in as president. Megawati Soekarnoputri is the leader of PDI the party the applicant claims he was once a member of.
Taking into account all of the evidence including the fact that the applicant was employed as a salesman in two companies prior to leaving Indonesia in December 1994, returned to Indonesia to work in January 1995, delayed applying for a protection visa and given the above independent information that the President of Indonesia is the leader of PDI the party the applicant claims he was once a member of the Tribunal is not satisfied that the applicant would be of any interest to the army or the authorities if he returns to Indonesia now or in the reasonably foreseeable future. (emphasis added)
The sole ground of review relates to the highlighted references to delay in the above extract. It contends:
The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act
1. The Tribunal breached s.424A of the Act
Particulars
i.The Tribunal failed to give to the Applicant, in writing, particulars of the date when the Applicants lodged their protection visa application, which the Tribunal considered would be the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the Applicants understood why it was relevant to the review; and failed to invite the Applicants to comment on it:
(a) The Tribunal relied on the visa application date and the date when the First Applicant entered Australia to show delay, which then formed a part of the reasons why the Tribunal did not have a well-founded fear of persecution for reason of political opinion.
Section 424A was applicable to the Tribunal’s proceedings notwithstanding that it came into operation on 1 June 1999, subsequent to the lodging of the application for review by the Tribunal (see the transitional provisions in Sch 3 cl.20 to the Migration Legislation Amendment Act (No.1) 1998). It provided:
SECT 424A
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.
Our understanding of the effect of this provision has undergone significant changes since the Tribunal conducted its present proceeding, in particular, due to the High Court’s judgment in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. The changes were described by Weinberg J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [108-122]. After referring to the emphasis given by the High Court to the jurisdictional significance of a failure by a Tribunal to comply with the s.424A procedure, he commented: “Henceforth, any Tribunal decision based on “information” adverse to the applicant, and where such information does not fall within any of the exceptions contained within s.424A(3), is likely to be set aside, irrespective of whether there has been any actual unfairness to the applicant”. The Full Court’s judgment in SZEEU itself extends the previously understood scope of the Tribunal’s duties under s.424A, by broadening the ambit of s.424A(1)(a) and declining to disapprove a narrow interpretation of the exclusion in s.424A(3)(b).
Before considering that exclusion, it is appropriate to consider whether the present Tribunal’s reference to the date when the applicant applied for a protection visa involved “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within s.424A(1)(a).
There was no dispute between the parties’ representatives that the date of the applicant’s visa application was “information”, nor that the Tribunal drew upon that information and the date of the applicant’s last arrival in Australia to make a factual finding of “delay”. It then identified that “delay” as relevant to its reasons for affirming the delegate’s decision in the two places shown in the extract above. It said that the delay “further indicates … that he did not have a subjective fear of being persecuted when he left Indonesia”, and that it was one of several factors which caused it not to be satisfied that he “would be of any interest to the army or the authorities if he returns to Indonesia now or in the reasonably foreseeable future”.
It was common ground that, on established authorities, it was appropriate to analyse this reasoning so as to discover whether the information was required to have been the subject of a s.424A(1) invitation because it “would be the reason, or a part of the reason, for affirming the decision” (see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [29-33]). In effect, the court considers the existence of the s.424A(1) duty retrospectively from an examination of the stated reasons ultimately given by the Tribunal for affirming the delegate’s decision.
It also was common ground that the majority judgments in SZEEU have rejected the previous opinion that references to information in a Tribunal’s reasons could be regarded as insignificant, if the information did not play a significant or essential role in the Tribunal’s reasoning. In SZEEU Allsop J said at [215]: “To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s.424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason”. Weinberg J agreed at [155]. When this was applied to the matters addressed in SZEEU, the consequence was that, where a Tribunal referred to a piece of earlier information as "a reason", then it could not be brushed aside because it was only a "subsidiary and minor” reason only (c.f. Weinberg J at [158] and [164]). At [227] Allsop J referred to some information covered by s.424A(1): “whilst it does not appear to play a central or integral role in the reasoning process displayed in the reasons, I conclude that it did play a part in the disbelief of the applicant, which was the or a reason for the decision”.
In VWFP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [50], Young J considered that SZEEU had held that “it was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal’s decision”.
Applying these authorities, I consider that it is clear that the present Tribunal has identified the date when the applicant made his visa application, and the “delay” which it thought was revealed by that date, as a part of its reasons for rejecting the applicant’s political claims and therefore for affirming the delegate’s decision.
The Minister’s representative did not concede this, but argued that the Tribunal had only treated this information as bearing on the existence of “a subjective fear of persecution at the relevant time”, and that its adverse conclusion on the political claims rested also on other findings, independently arrived at (c.f. SZEEU at [233]). However, in my opinion, when understood in their proper context, the Tribunal’s reference to the applicant’s delay was considered by it to be one reason for disbelieving the objective truth of his claim to be a person “of interest” to the Indonesian army, as well as the existence of a subjective fear of the army. In my opinion, this appears clearly from the context of the second reference to delay in the passage I extracted above.
Obviously, there were other, more compelling, reasons given by the Tribunal for its adverse conclusion, notably the fact that then President of Indonesia was the leader of the applicant’s political party. However, the Tribunal considered that its finding on delay was relevant, and identified it as one of the reasons for its conclusion. Upon the authority of SZEEU, I consider that this gave rise to a duty to give the applicant a written invitation for comment under s.424A(1), unless this was excluded by s.424A(3)(b).
I must therefore consider what was the source of the information used by the Tribunal as to when the visa application was made. More precisely, I must consider whether this was “information … that the applicant gave for the purpose of the application” within s.424A(3)(b). I must consider this on the basis that the reference to “application” must be read as “application for review by the Tribunal” (see SZEEU at [9], [154] and [184], following Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27).
The most obvious, and “best”, evidence of this was clearly to be found on the Department’s file which was forwarded to the Tribunal under s.418(3). The date of application was recorded there by sundry “received” stamps showing “07 Apr 1997”, and this date was then referred to in subsequent documents on the Department file, including the delegate’s decision and the first paragraph of the letter giving notice of that decision. Clearly, the Tribunal did not need to receive further or better information from the applicant as to when he made his visa application. Nor was it a piece of information which the applicant relied upon in his review application, or needed to present to the Tribunal. There is no evidence that at any time in the course of the review did the applicant or his agents volunteer information to the Tribunal that his application was made on 7 April 1997 or in April 1997.
I therefore accept that documents on the Department file, and nothing said by or on behalf of the applicant, provided the source for the Tribunal’s finding of fact as to when the applicant made his protection visa application. This appears at the commencement of the Tribunal’s statement of reasons. Under the heading “Background”, the Tribunal found:
The applicants are a husband wife and their child. They claim to be citizens of Indonesia. They claim that they first arrived in Australia on 24 December 1994. The applicant husband returned to Indonesia in January 1995. He returned to Australia in March 1995. On 7 April 1997 the applicants lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 5 June 1997 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant protection (class XA) visas and on 30 June 1997 the applicants applied for review of that decision. The Tribunal differently constituted, affirmed the delegate’s decision on 12 May 1998. The applicants sought review of the Tribunals decision by the High Court. On 27 October 2003 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. (emphasis added)
It appears to be common ground between the parties that the Tribunal relied only upon the Department file for this finding referring to the precise date of application, but the Minister’s representative argued that because the applicant confirmed in a response to a question by the Tribunal at a hearing that “you did not apply for a protection visa until April 1997 following your detention”, he thereby “gave” that information “for the purposes of the (review) application”. He argued that this information given at the hearing was relevantly the source of the Tribunal’s adverse reasoning based on delay.
The applicant attended two hearings at the invitation of the Tribunal. As is pointed out by his representative, these followed the usual hearing procedure of the Tribunal under s.427, in which the Tribunal member asked all the questions, and the applicant could not “refuse or fail to answer a question” (see s.433).
A transcript of the first hearing, conducted on 20 April 1998 by the Tribunal as originally constituted, is not in evidence. However, the applicant swore in an affidavit that “I am certain that I did not give the date that I lodged my Protection visa application with the Department of Immigration to the Refugee Review Tribunal” at that hearing, and he was not cross-examined on this.
The statements of reasons of both Tribunals refer to questioning of the applicant at the first hearing about his delay in making the visa application. However, these references do not establish that, in any sense, he “gave” to the Tribunal the information as to when this occurred. Rather, the questioning appears to have proceeded on the basis that the Tribunal already knew this fact from the file. The first Tribunal said:
Asked why he had stated in his primary application that he had stayed at the same address in Jakarta between 1991 and 1993, and then at the same place in either Bandung or Jakarta between 1993 and 1994, the applicant said that there were some mistakes in his application. It had been filled out in a hurry and he had been afraid. I asked the applicant why, having arrived in Australia in December 1994, he had waited until April 1997 to apply for a protection visa. He said he had been afraid of rejection so he decided to remain here illegally. He had renewed his visa by going to New Zealand but was afraid to ask for a renewal once that visa had expired.
In the statement reasons of the second Tribunal, this evidence to the first Tribunal is referred to more briefly:
Asked why he had stated in his primary application that he had stayed at the same address in Jakarta between 1991 and 1993, and then at the same place between 1993 and 1994, the applicant said that there were some mistakes in his application. It had been filled out in a hurry and he had been afraid. Asked why, having arrived in Australia in 1994, he had waited until April 1997 to apply for a protection visa. He said he had been afraid of rejection so he decided to remain here illegally.
The second hearing was held on 6 February 2004 by the Tribunal as reconstituted. It does not refer in its reasons to any questioning by it of the applicant as to the date of his visa application. However, the transcript, which is in evidence, contains three references to this. The first is at the end of the Tribunal’s opening address to the applicant:
Q6In telling the Tribunal what has happened there’s always some temptation to exaggerate and to add extra incidents. It’s very important that you’re careful and truthful in what you tell me. Your claims for a protection visa were made in April 1997. They were made following your detention in Villawood. You have submitted no new claims to this Tribunal. Since you made your claims in 1997 there have been significant changes in Indonesia. The leader of the party you claim you once were a supporter of is now President of Indonesia. I have sent you independent information about the changes that have occurred in Indonesia. I’ve sent you information about the treatment of the ethnic Chinese and Christians in Indonesia. Can you tell me in your own words why you fear returning to Indonesia.
AI feel afraid to return to Indonesia because of events that affect people of Chinese descent and Christians and these events are always repeated if there are riots or things like that.
Q7I’d like you to explain to me in more detail about what you actually fear because as I say, your claims were made in 1997 - - -
A Yes.
Q 7- - - and there have been significant changes, so what exactly do you fear?
AWell, I’m fearful because there is no sure protection from the government for those of Chinese descent. Usually any improvements made by the government usually follow victims that have already fallen previously.
I do not consider that either of these references should be taken to show the applicant “giving” the date of his visa application to the Tribunal “for the purpose of the application”. The first reference shows no more than that the Tribunal already had that information, and it is not part of any question or proposition put to the applicant for his agreement. The second reference shows an interrupting “yes” by the applicant when reference is made to the date of application. However, in my opinion this does not show the Tribunal intended to elicit that information, but merely confirms that the applicant understood what the Tribunal was putting to him.
The third reference occurred in the course of a brief line of questioning by the Tribunal:
Q32So what family members do you have living in Australia?
AWell, now, my parents, my older sibling and the family of that sibling. My younger sibling also used to live here but now that sibling is working in Singapore, has left and is working in Singapore.
Q33So do you have any family living in Indonesia?
ANo
Q34So you are claiming that you first arrived in Australia in December 1994.
A That’s correct.
Q35In January 1995 you returned to Indonesia to go back to work.
ACorrect.
Q36 You returned to Australia in March ’95, you then travelled to New Zealand to renew your visa and returned to Australia but you did not apply for a protection visa until April 1997 following your detention.
ACorrect
Q37I’d just like to ask you some questions about your employment in Indonesia because you’ve not provided any specific details about your employment. In your initial application to the department you stated your occupation as fitter.
AYes, at that time, yes.
It is the applicant’s answer “correct” at Q36, which the Minister argues gives rise to the exemption from the duty to serve an invitation under s.424A(1).
Considering the language and policy of s.424A(1), I think that this answer does not show the applicant “giving” the date of his visa application “for the purpose of the (review) application”. The policy of the section is that an applicant should have an opportunity to respond in writing to information which will be used adversely against him, after being given both written particulars of the information and a written explanation of its possible adverse relevance (c.f. my discussion in Elrifai v Minister for Immigration [2005] FMCA 1484 at [34] and ff.). The exclusion in s.424A(3)(b) is intended to cover information whose significance can be assumed to be appreciated by an applicant because he has himself “given” it as “part of his application” presented to the Tribunal. He is therefore deemed to be fully aware of both the information and its relevance to the issues to be decided by the Tribunal.
In the present situation, the date of the visa application did not form any part of the applicant’s case presented to the Tribunal, it was not information in any sense relied upon by the applicant, and was not information of which he was the source of the Tribunal’s knowledge. Uninstructed by authority, I would therefore not consider his answer to Q.36 satisfies the exclusion in s.424A(3)(b).
This reasoning has support in the judgment of Jacobson J in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 at [39]: “it cannot be said that the appellant himself provided the information in the protection visa to the RRT as part of his application.” I would also understand his Honour’s reference in [37] to “it must be put forward in chief” to carry the same point. Although a hearing before the Tribunal would not be divided into stages of “evidence in chief” as distinct from “cross-examination”, it is necessary to consider whether an applicant’s agreement with a factual proposition was intended to advance or explain or amplify the applicant’s application to the Tribunal. Mere responses to “cross-examination” on information already available to the Tribunal may not amount to the giving of that information to the Tribunal within the terms of the exemption.
I consider that the present situation falls into the category of questions inviting adoption of information obtained by the Tribunal from prior statements of the applicant or from other sources, which Jacobson J considered would not give rise to an exemption from the Tribunal’s obligation to present that information’s significance to the applicant by way of a written invitation for comments.
Jacobson J’s analysis in NAZY received approval in the Full Court in SZEEU (supra) when addressing the reasoning of a Tribunal in relation to appellant SZBMI. In that case, the Tribunal drew adversely from inconsistencies in an applicant’s claimed history which were disclosed under questioning by the Tribunal about statements in his visa application. At [20] Moore J said:
In my opinion, the flight information was "information" for the purposes of s 424A(1). What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal. I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. However, it cannot be said, in this case, that the Tribunal acted in such a way.
Weinberg J agreed with this reasoning. At [157] he said: “the adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review.” Allsop J [218]-[226] appears also to accept this aspect of Moore J’s reasoning in SZBMI.
Weinberg J in his general “concluding observations” at [179] explained the distinction referred to by Moore J. As I understand it, this is between the situation where a Tribunal’s reference to information confirmed or adopted by an applicant shows only that the prior information and not the responses provided a part of the Tribunal’s “reason”, and the situation where the Tribunal presents the applicant’s response, but not the prior information itself, as a part of its “reason”. The latter situation will be covered by the s.424A(1) exemption, but the former will not.
Assessing the present reasoning of the Tribunal concerning the applicant’s delay in making his protection visa application, I consider that it shows the Tribunal making use of the original information it obtained from the Department file, and am unable to read its reasons as relying only upon the applicant’s “confirming” of the fact show on the file.
I therefore accept the submissions of the applicant’s representative that the present Tribunal made the same error of procedure as was detected by Weinberg and Allsop JJ in relation to another appellant, SZEOP. In that case, “the applicant arrived in Australia on 14 January 2001, and lodged his application for a protection visa on 9 August 2004. The Tribunal questioned the appellant about this matter and … concluded that his current claims arose out of discussions while in detention” (see Moore J in SZEEU at [67]). Moore J at [69] concluded that “the Tribunal did not found its decision, even in part, on the fact that the appellant had applied for a protection visa more than three years after entering Australia”. However, Allsop J at [254] disagreed. He considered that the Tribunal’s reasoning “reveals reliance on the fact that the visa was not applied until 2004 in its conclusion that he held no fear of persecution. That fact was a part of the reasoning of the Tribunal”. Weinberg J at [171] agreed with Allsop J, and said: “the ‘date of the application information’ was knowledge gained by the Tribunal from the appellant’s visa application, and was information for the purposes of s.424A(1).”
The Minister’s representative sought to distinguish the Full Court’s reasoning in relation to appellants SZBMI and SZEOP, by referring to its reasoning in relation to another appellant, SZDXA. Here, in response to a written request for additional information, and under questioning by the Tribunal, the applicant gave the Tribunal details of how he had obtained a temporary business visa with which he entered Australia. The Tribunal relied upon a finding that the applicant was in fact a businessman who had travelled for his work interests. Moore J’s reasoning at [91] received the unqualified agreement of Weinberg J at [173] and Allsop J at [264]:
91 While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.
Doing the best I can with the brief description of the factual background in SZDXA, I do not accept that this reasoning can be applied to the present matter. I consider that the present Tribunal’s knowledge of the information as to the date of the applicant’s visa application was not “derived from” information given to it at the hearing by the applicant for the purposes of his review application. I consider that it came from the obvious source on the Department’s file.
For the above reasons, I conclude that the Tribunal failed in its duty under s.424A(1) to give a written invitation to the applicant to comment on a fact which supported a finding that there was delay in making an application, together with a written explanation as to “why it is relevant to the review”.
The Minister’s representative accepted that such a conclusion would permit relief to be given by way of certiorari and mandamus, but submitted that relief should be refused in the exercise of the court’s discretion. This discretion was described by McHugh J in SAAP (supra) at [80]:
Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome (and c.f. Hayne J at [211] with whom Kirby J agreed at [174‑176]).
His argument, as I understood it, was that I could be satisfied that “the applicant has in fact suffered no injustice”, because a possible adverse finding based on delay was canvassed with the applicant at the first hearing and also implicitly at the second hearing in Q.36 set out above.
However, in my opinion, this submission must fail for the same reason that it failed in SAAP. The reasoning of the High Court was, as Weinberg J noted in SZEEU at [110-111], that s.424A was a statutory procedure which the legislature intended to be strictly complied with as a condition of jurisdiction, and non-compliance “would normally result in the Tribunal’s decision being set-aside” even where the Court thought that no unfairness had resulted.
In my opinion, the Minister has not pointed to any conduct of the applicants which should disqualify them from the remedies they seek, and I can see no other relevant circumstance which should cause me to withhold that relief.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 12 April 2006
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