SZEQT v Minister for Immigration
[2006] FMCA 1725
•29 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1725 |
| MIGRATION – Refugee – claims to fear persecution on the basis of religion and ethnicity – Tribunal’s comments in relation to inconsistencies in the applicant’s previous evidence – whether derived from the protection visa application – information given in relation to the protection visa application republished before the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.36(3), 424A, 424A(1), 424A(3)(a), 424A(3)(b), 422B |
| NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 SZCIJ v Minister for Immigration and Multicultural Affairs and Anor (2006) FCAFC 62 |
| Applicant: | SZEQT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3263 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 September 2006 |
| Date of Last Submission: | 3 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. D. Jenkins (Direct Access) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. G. Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3263 of 2004
| SZEQT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 5 November 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 22 September 2004 and handed down on
14 October 2004 to affirm the decision of a delegate of the respondent Minister made on 17 October 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.The applicant is a citizen of Afghanistan who arrived in Australia on
1 November 1999. He applied to the first respondent's Department for a protection visa. On 21 March 2000 he was granted a Temporary Protection Visa (“TPV”) on the basis that he was a person to whom Australia owed protection obligations. On 7 March 2002 he applied for a (permanent) protection visa and this was refused on 17 October 2003. On 17 November 2003 the applicant applied for review of the decision before the Tribunal.The applicant’s claims to protection are set out:
1)In his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 28.
2)In an attached statement (CB 27 to CB 28).
3)In his application for a (permanent) protection visa (CB 40 to CB 62).
4)In a letter from the applicant's then migration representative, dated 5 October 2002, sent to the first respondent's Department (CB 71 to CB 72).
5)In an attached statutory declaration made by the applicant on
7 October 2002 (CB 73 to CB 74).6)In his application for review, received by the Tribunal on
17 November 2003 (CB 102 to CB 105).7)In a statutory declaration made by the applicant on 5 May 2004, submitted to the Tribunal (CB 116 to CB 119).
8)In submissions made by the applicant’s then migration adviser received by the Tribunal on 20 August 2004 (CB 137).
9)In a submission with attached documentation from a church group supporting asylum seekers (CB 138 to CB 140).
The applicant gave evidence to (a differently constituted) Tribunal at a hearing on 6 May 2004, and subsequently in a hearing on 17 August 2004 with the Tribunal (the Tribunal constitution was changed due to the unavailability of the “first” constituted member). For a report of what occurred at both hearings, see the Tribunal's decision record at CB 154.4 to CB 157.5.
Understandably, given the passage of time and changes in the circumstances in Afghanistan, the applicant’s claims developed through a number of iterations, culminating before the Tribunal, and as understood at the time of making its decision as claims to fear harm being (CB 164.5):
“• from Taliban and from Pashtuns (including the Ghazni governor) because he is an Hazara and a Shia.
• from Hezb-e-Wahdat (Nasr or Khalili faction) in Jaghoori district – and in Ghazni province more generally – because of past conflict and his father’s association with the opposing Wahdat faction (Sepah or Akbari)
• because he is a Sayed
• generally, because of lack of law and security (including the risk of forcible recruitment to fight for rival groups).”
The Tribunal's “Findings and Reasons” are set out in its decision record at CB 162.7 to CB 171.3. The Tribunal considered the circumstances in connection with which the applicant was recognised as a refugee, in the context of Article 1C(5) of the Refugees Convention, s.36(3) of the Migration Act 1958 (“the Act”) and, importantly, whether the applicant was a person to whom Australia had protection obligations as at the time of its decision. These claims were assessed pursuant to Article 1A(2) of the Convention.
I should just note, although not an issue raised in this matter by the applicant's legal representative, that in light of the recent High Court decisions in NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 (following in particular the Full Federal Court majority Judgement in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCAFC 60) the Tribunal's approach in dealing with each of these issues reveals no error. The Tribunal answered the question that it was required to address - whether there was a well founded fear of persecution for a Convention reason as at the time of its decision, or in the reasonably foreseeable future, should the applicant be returned to Afghanistan.By way of amended application, filed on 8 November 2005, the applicant put forward the following:
“That the RRT decision was affected by jurisdictional error:
(a)The RRT failed to comply with the requirements of s424A of the Migration Act as it failed to give notice to the applicant in writing that it considered that part of the reason for affirming the decision under review was that the RRT considered that the applicant had made inconsistent claims before the delegate from those made to the RRT:
Particulars:
a.that the applicant did not claim in the course of his application before the delegate that he had been actively involved in Sepah, and
b.that the applicant’s claim before the delegate that he feared harm as a Sayed was inconsistent with his claims to the RRT.”
When the matter first came on for hearing before me, the applicant appeared without representation. Mr. G. Kennett appeared for the respondent Minister. After hearing evidence from “a friend” of the applicant, who accompanied him to Court, and in particular from the applicant himself, and notwithstanding cross-examination by
Mr. Kennett that illuminated some concerns with the applicant's evidence, I granted an adjournment of the hearing. The basis of the applicant’s request in this regard was that he had come to Court with the expectation that he would be represented by Counsel and that, in particular, a “refugee advocate” active in supporting asylum seekers had given him “reassurance” that a barrister had been “organised for him”. Notwithstanding some concerns with his evidence, I nonetheless granted the adjournment and when the matter resumed on 8 September 2006, the applicant was represented by Mr. D. Jenkins of Counsel.Submissions made on behalf of the applicant were in support of what Mr. Jenkins described as “two issues” arising out of the applicant’s grounds of complaint:
1)That the Tribunal failed to comply with s.424A of the Act.
2)That relevant information subject to the obligations set out in s.424A(1) did not fall within the exception contained in s.424A(3)(b) of the Act.
Mr. Jenkins referred in particular to the following parts of the Tribunal's decision record.
1)At CB 164.3:
“The Tribunal had difficulties with some aspects the Applicant's subsequent, successive claims, even taking into account that some elements may have seemed to him of less relevance initially. Indeed, his evidence on some of these matters has been, at best, uneven and even inconsistent; for example, his later claims to have been actively involved in Sepah himself or to fear harm as a Sayed. The Applicant has also claimed (in May 2004) that his brother was taken away by the Taliban in 1999 and never returned and (in September 2004) that his brother was taken later, by the local Nasr commander.”
2)At CB 164.4:
“The Tribunal was therefore cautious about accepting every assertion and detailed claim made by the Applicant at face value, especially where they appear inconsistent with independent country information.”
3)At CB 170.5:
“The Tribunal does not accept the claim made by the Applicant only in his most recent statement (but not at hearing), that his brother had been taken by the local Nasr commander. The Applicant had previously stated that his brother had been arrested (and not seen since) by the Taliban in 1999. Nor does the Tribunal accept the further claim made by the Applicant in his most recent statement (but not previously), that a specific local Nasr commander had threatened to kill him. Nor in the circumstances does the Tribunal accept that a specific commander had come to his home earlier this year asking for him and his father (especially since both had been absent since 1999, his father having been arrested by the Taliban and presumed killed).”
In essence, Mr. Jenkins’s submission was that the Tribunal drew on the inconsistency, or “perceived inconsistencies”, in the various pieces of information provided by the applicant, and that this perceived inconsistency manifested itself in an adverse finding as to the applicant's credit. In this regard, he particularly referred to the Tribunal's decision record at CB 170.5 referred to above.
The submission was that the Tribunal perceived inconsistencies in the applicant's evidence that went to his credit (with reference to CB 164 and CB 162) and that these inconsistencies were perceived to rely, and derive from, in part, information that the applicant had not put to the Tribunal for the purposes of the review, in the context as is understood following Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”) and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”).
Mr. Kennett's submission on behalf of the Minister was that the role played by “notions of the inconsistency” was limited to what the Tribunal set out at CB 170.5 (as reproduced above). In relation to the applicant's submission that the inconsistencies underlined an adverse credibility finding, Mr. Kennett submitted that although the Tribunal made a reference to the “uneven” and “even inconsistent” evidence as it related to his involvement in “Sepah” (CB 164.3), and that the applicant's claims that he faced persecution as a “Sayed” had emerged rather “inconsistently and unconvincingly” (CB 165.3) (these are the two particulars relied on by the applicant in his amended application), that these statements did not form the basis of any finding about the applicant as a witness of credit. Further, that the perceived inconsistencies referred to above, were all based on information that had been provided by the applicant to the Tribunal for the purposes of the review (such that they came within the exception contained in s.424A(3)(b) from the requirement set out in s.424A(1)).
In the alternative, Mr. Kennett submitted that, to the extent that it may be said that at least some of this inconsistency may have been between information put by the applicant in his protection visa application, and what was put before the Tribunal, the respondent says that any such information given in the protection visa application was adopted, or republished, before the Tribunal.
The respondent referred to the applicant's statutory declaration of
5 May 2004 which was given to the Tribunal under cover of a letter from the applicant's then migration adviser (see CB 115 to CB 119). The respondent relied on the following in the statutory declaration:“I would like to reaffirm that the content of my statements that I had provided previously to the department, are still true and correct and I believe that these claims are still applicable to my situation”.
The parties differed, with reference to relevant authorities, as to whether this was an adoption by the applicant of his earlier claims, such that they could be said to have been republished, or put before the Tribunal, for the purposes of the application for review, and as such to fall within the exception contained in s.424A(3)(b).
Mr. Jenkins in particular relied on:
1)Al Shamry at [40], where Merkel J. stated:
“An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate’s decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-63.”
2)NAZY v Ministerfor Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 (“NAZY”) at [34], where Jacobson J. stated:
“…Thus, the exception in s 424A(3)(b) is not enlivened unless it can be said that the appellant’s evidence in the RRT somehow converted the information supplied to the Department to information which the appellant gave to the RRT for the purpose of the application.”
3)SZEEU at [20] where Moore J. stated:
“…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...”
Mr. Jenkins's submission was, in effect, that the paragraph quoted [paragraph 15 above] in the applicant's statutory declaration should properly be seen as an effort by the applicant to “speak” to his bona fides, in that he continued to have the fear that led to the granting of the TPV. His submission was that this statement amounted to a reaffirmation of the applicant's claim that he was in need of protection, and did not amount to the applicant “adopting specific statements” such that it could be said that he was resubmitting those statements to the Tribunal. Thereby the statement did not bring the information submitted with the application to the Minister’s Department within s.424A(3)(b) of the Act.
Mr. Kennett's submission was that even on the basis as set out in NAZY (which Moore J. indicated in SZEEU at [20] was correct), that what has occurred in the case before me is that the applicant adopted the information before the Tribunal that he had put in his protection visa application, such that it was transformed into information provided by him for the purposes of his application for review.
The submission is that in the case before me, this was not merely a situation (as in NAZY) where the applicant at a hearing before the Tribunal, in answer to questioning from the Tribunal, responds affirmatively about whether a previous statement put to the Minister's Department was “true and correct”. In the case before me, the applicant was not subject to any questioning, or cross-examination, by the Tribunal, but provided this statement, adopting the contents of his earlier statement, by way of a statutory declaration made by him, and sent to the Tribunal by his migration adviser.
Mr. Kennett referred the Court to Young J. in SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611, on appeal from this Court, a Judgement that was given post SZEEU. In that case the source of the statement adopting the earlier statements made to the Minister's Department was contained in a letter accompanying the application for review. At [8] in SZHIB His Honour stated:
“The appellant’s application for review to the Tribunal was accompanied by his letter dated 20 April 2005. In his letter, the appellant stated, among other things, that:
a) he did not think that the first respondent’s delegate had considered all of his claims fairly and carefully;
b) it was difficult for him to believe that the delegate had carefully considered his claims, having regard to the fact that he had provided those claims ‘in details’; and
c)in conclusion, he did not think that the delegate had carefully considered all of his claims.
Thus in his letter the appellant repeatedly referred to his ‘claims’ which, in context, must be read as a reference to the detailed claims set out in his statutory declaration of 22 December 2004 which supported his application for a protection visa.”
Then, at [23]:
“There is, moreover, a second reason for rejecting the appellant’s arguments based on s 424A. In my opinion, if any material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the appellant’s evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the content of that letter. The appellant’s letter incorporates, in my view, the substantive claims made in the appellant’s statutory declaration which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of subs (3)(b) of s 424A. This view is supported by the authorities: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271; and SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034.”
I note in particular:
1)M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25]:
“That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).”
2)VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10] to [11]:
“[10] However, as was pointed out by Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], if an applicant for review in, or as part of, the application for review relies upon information provided by the applicant in, or as part of, the application for a visa, the applicant will be taken to have given that information for the purpose of the application for review. As is apparent from the decisions in SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 931 and NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, views may differ on whether that criterion has been satisfied in a particular case.
[11] In the present case the criterion has been satisfied. In the appellant’s application for review, in giving his reasons for making the application, the appellant stated, inter alia:
‘PLEASE REFER TO MY PREVIOUS STATEMENT FOR FURTHER INFORMATION.’”
3)SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5] to [6]:
“[5] In a well-constructed argument, counsel for the respondent put forward various bases upon which it could be said that the Tribunal did not breach s 424A. I need not set them all out as, in my opinion, one of them is decisive. The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference.”
[6] In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. It follows that all such information was given by the appellant to the Tribunal for the purpose of the application even if ‘application’ is limited to the original application and so falls within the exception in s 424A(3)(b). Therefore, the obligations imposed by s 424A do not apply to that information. In other words, the case is within the reasoning of M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 rather than NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744. (See also SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998.)”
In summary therefore, Mr. Kennett's submission was that all of the information relied on by the Tribunal, such as it could be said to be a part of the reason for its decision, came within s.424A(3)(b), such that any inconsistency referred to by the Tribunal was based on information that was given to the Tribunal by the applicant. In the alternative, if there is a reference to information given in the protection visa, then such information was adopted and came within the exception in that way.
Dealing first with what is set out at CB 164 in the Tribunal's decision record, Mr. Jenkins submitted in oral submissions in reply, that the applicant did not seek to press particular (a) in his amended application. That particular made reference to the Tribunal’s failure to give notice to the applicant, in writing, that he had not claimed in the course of his application before the Minister’s delegate that he had been actively involved in Sepah (a group which had joined a coalition of “nine Hazara parties called Wahdat” - CB 153.3). The Tribunal’s reference at CB 164 indicated that it had difficulties with some aspects of the applicant’s claims. It gave as an example of his “uneven and inconsistent” evidence, the applicant’s claims to have been “actively involved” in Sepah. Mr. Jenkins initially submitted that this finding of inconsistency was one part underscoring the Tribunal's finding as to the creditworthiness of the applicant.
I do not accept this aspect of the submission. I cannot see that the reason for the rejection of the applicant’s claims by the Tribunal depended on an adverse credibility finding.
While the Tribunal said that it was “cautious” about accepting the applicant’s detailed claims generally:
“The Tribunal was therefore cautious about accepting every assertion and detailed claim made by the Applicant at face value, especially where they appear inconsistent with independent country information” (CB 164.5), (the “Sepah” related claim)
the Tribunal acknowledged that this was a claim made by the applicant:
“The applicant essentially claims that he is at risk now (CB 164.7):
• …
• from Hezb-e-Wahdat (Nasr or Khalili faction) in Jaghoori district – and in Ghazni province more generally – because of past conflict and his father’s association with the opposing Wahdat faction (Sepah or Akbari)…”
The Tribunal, however, clearly did not reject the applicant’s claims in connection to Sepah because of any inconsistency between what the applicant put before the Minister’s delegate and what he subsequently put before the Tribunal. The Tribunal's consideration of this issue is at CB 168.6 to CB 170.4. On any plain reading of its decision record, the Tribunal rejected the applicant’s claims in this regard, based on what the applicant said at the “first Tribunal hearing” (CB 168.7) and independent information available to it. The Tribunal found that supporters of Sepah were not at risk of serious harm:
“None of the available reports suggest that there are armed clashes in Jaghori between Wahdat (Khalili) - Nasr - and Wahdat (Akbari) – Sepah - supporters or that the latter are (as claimed by the Applicant) at risk of serious harm, or even being killed, by the former.” (CB 170.4).
Plainly, the information on which the Tribunal relied in finding that the applicant was not at risk of serious harm in this regard was information provided by the applicant himself to the Tribunal, and independent country information available to it. The former clearly falls within s.424A(3)(b) and the latter falls within the exception contained in s.424A(3)(a).
I note further here that in relation to any argument that may be based on principles of common law procedural fairness, s.422B of the Act makes the matters contained in Division 4 of Part 7 the exhaustive statement of such obligations (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs and Anor [2006] FCAFC 62).
In relation to the applicant’s complaint that the Tribunal did not comply with the requirements of s.424A of the Act, in that it did not provide notice to the applicant in writing, it found the applicant’s claims before the delegate that he feared harm as a “Sayed”, inconsistent with his claim made to the Tribunal in this regard. Again, as with the claim involving Sepah, the Tribunal made a reference to the applicant’s fear of harm as a Sayed (at CB 164.3), in the context of setting out its cautious approach in accepting every assertion and detailed claim made by the applicant at face value. It subsequently understood his claim to be at risk:
“● because he is a Sayed.” (CB 164.7),
and dealt with the issue at CB 164.8 to CB 167.6. While the Tribunal noted:
“The claim that the Applicant now faces persecution as a Sayed has emerged rather inconsistently and unconvincingly.” (CB 165.3)
it accepted that the applicant was a member of the “generally recognised Sayed community in Afghanistan” (CB 165.5).
On any plain reading it was not the “inconsistent” or “unconvincing” emergence of this claim that can be said to be a reason, or part of the reason, for its decision. The Tribunal plainly accepted that the applicant was a Sayed but was not persuaded, in view of the independent country information before it, that the applicant faced a real chance of persecution by reason of his ethnicity as a Sayed (CB 167.4):
“In particular, the Tribunal was unable to find any material supporting claims that Sayeds are now being targeted to be killed and that their lives are at risk at the hands of Hezb Wahdat in particular. The Tribunal does not accept that Sayeds in Afghanistan – generally, or in Hazara majority areas, or in the Applicant's own (Hazara) district - are now mistreated or persecuted or killed. On the material before it, the Tribunal is satisfied that on return to his home in Afghanistan the Applicant does not face a real chance of persecution by reason of his religion or ethnicity as a Sayed.”
Having dealt with his claims based on the connection with Sepah, and his Sayed ethnicity, the Tribunal then turned to consider other claims.
In this context, taking each of the statements, in turn, made by the Tribunal in that part of its decision record complained about at CB 170 and quoted at paragraph [9] above. First:
“The Tribunal does not accept the claim made by the Applicant only in his most recent statement (but not at hearing), that his brother had been taken by the local Nasr commander. The Applicant had previously stated that his brother had been arrested (and not seen since) by the Taliban in 199.” (CB 170.6).
To the extent that it may be said that the Tribunal relied on the inconsistency between what the applicant said at the hearing, and in the “most recent” statement (that is that he did not mention that his brother had been taken by the local Nasr commander at the hearing, but that he had made this statement in a subsequent written statement to the Tribunal), any information on which the Tribunal can be said to have relied clearly falls within the exception set out in s.424A(3)(b) of the Act.
To the extent that the Tribunal seeks to rely on the inconsistency between the applicant’s claims in his “most recent statement” (that his brother had been taken by the local Nasr commander) compared to the previous statement (that the brother had been arrested by the Taliban in 1999 and not seen since) then this statement was made in a statement submitted by the applicant to the Tribunal on 5 May 2004.
As reproduced at CB 116.7 the applicant declared:“6.Prior to leaving in December 1999 my father had been taken by the Taliban militants and this situation forced to me leave Afghanistan. The whereabouts of my father is still unknown thus I presume that my father has been killed by the Taliban extremist elements.
7.My older brother [named] was in the region of Anguri - he had been taken by the Taliban and following my conversation with my mother, a member of our village was also taken by the Taliban militias – he was taken to the northern region of Afghanistan called Hussain Kot in Shamali. This friend of our family, Rezahad said that he had seen my brother in Hussain Kot. Most of the forces that were deployed in Hussain Kot were engaged in fighting against the Northern Alliance of Ahmad Shah Masood during the time of the Taliban.”
The Tribunal referred to this statement of 5 May 2004 in its decision record and relevantly (at CB 152.9) stated:
“The Applicant stated that in December 1999 his father had been taken by the Taliban and his whereabouts is still unknown, but he is presumed to have been killed. The Applicant’s older brother who lived in the region of Anguri had also been taken by the Taliban. The Applicant stated that he had been informed by his mother that a friend in the village had seen his brother in an area in the north where forces fought against the Northern Alliance during the time of the Taliban.”
In his subsequent statement provided to the Tribunal on 14 September 2004, following the hearing with it, the applicant stated relevantly (at CB 140.5), in the context of his fear of harm from the Nasr party:
“‘Ali Shah’ who is a commander of the Nas’r party has continuously tortured and raided our family until they took my brother who’s (sic) fate and where abouts is still unknown…”
Clearly, the inconsistency between these two different claims made by the applicant in relation to his brother (whether he was taken by the Taliban or the Nasr commander) was based on information provided by the applicant at two different times in written statements, but nonetheless both were provided to the Tribunal for the purposes of the review such that the information falls within the exception contained in s.424A(3)(b).
With reference to paragraphs 31 and 32 above, second at CB 170.6 the Tribunal further states:
“Nor does the Tribunal accept the further claim made by the Applicant in his most recent statement (but not previously), that a specific local Nasr commander had threatened to kill him. Nor in the circumstances does the Tribunal accept that a specific commander had come to his home earlier this year asking for him and his father (especially since both had been absent since 1999, his father having been arrested by the Taliban and presumed killed).”
The reference to the further claim made by the applicant in his most recent statement is plainly, in context, a reference to the statement of 14 September 2004, set out at CB 139 to CB 140, which was put to the Tribunal for the purposes of the review.
The issue is whether the words in parenthesis - “but not previously” - when read in the context of the Tribunal's decision record as a whole, were a reference to the applicant's failure to raise this claim at any of the many opportunities that he had to do so before the Tribunal or whether they also impart a reference to a failure to raise this claim before the Minister’s Department. The “Tribunal” opportunities were the review application of November 2003, the Tribunal hearing of May 2004 (the previously constituted Tribunal), the Tribunal hearing of August 2004, the applicant’s statutory declaration of 5 May 2004, and the applicant’s post hearing submission of 13 September 2004 (being the “most recent statement”).
Mr. Jenkins submitted that the Tribunal’s statement in parentheses could not be said, fairly, to limit the Tribunal’s reference only to the opportunities available to the applicant before the Tribunal itself.
His submission was that to read the words “but not previously” as being only previously in his statements to the Tribunal, would be to read something that is not present on the face of the Tribunal's decision. I agree with Mr. Jenkins in this regard. While in my view it is clear that the Tribunal rejected the applicant’s claims made in his “most recent statement” based, to a large extent, on what was contained in that claim itself, and on the basis of country information before it - all come within exceptions contained in s.424A(3). But in my view, a part (albeit a small part) of the Tribunal's reasons for rejecting the applicant's claim regarding the local Nasr commander, was that in addition to the other reasons, the Tribunal could not accept the claim because it was made in the most recent statement, but not previously.In SZEEU Allsop J. stated that the reference to information being a part of the Tribunal's reasons for decision is not confined to information that is a significant, or major, part of the decision, but only that it be a part. His Honour stated at [215] to [216]:
“[215] In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. 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.
[216] That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.”
The words “but not previously” on any plain meaning, while not making any specific reference to the protection visa application, nonetheless are not on their face, but even in context of the decision record as a whole, limited to what was put specifically before the Tribunal, in terms of statements made directly to the Tribunal, other than in one regard set out below.
I accept Mr. Kennett's submission that notwithstanding that in any event this reference may include information that was put before the Minister's Department, the applicant's statement in his statutory declaration of 5 May 2004 (CB 116) as set out in paragraph 15 above, would serve to bring the content of the applicant's “earlier statements” before the Tribunal. With reference to what is set out at paragraphs 14 to 23 above, in my view, the earlier statements can be considered as adopted before, and republished to, the Tribunal, such that when the Tribunal makes a reference to the term “but not previously” it therefore referred to all information subsequently put before the Tribunal for the purposes of the review.
In all therefore, the grounds put forward by the applicant in his amended application, and as argued on his behalf by Mr. Jenkins, are not made out, and do not reveal jurisdictional error on the part of the Tribunal. The application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 29 November 2006
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