SZFHF v Minister for Immigration
[2006] FMCA 257
•28 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 257 |
| MIGRATION – RRT decision – Armenians claimed persecution by army officers – Tribunal rejected claims due to inconsistencies in applicants’ evidence – reliance upon their evidence given at departmental interview – failure to invite comments under s.424A – matter remitted. |
| Acts Interpretation Act 1901 (Cth), s.8 Migration Litigation Reform Act 2005 (Cth),Sch.1 cl.41 |
| Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Minister for Immigration & Multicultural & Indigenous Affairsv Awan (2003) 131 FCR 1 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801 SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 |
| First Applicant: | SZFHF |
| Second Applicant: | SZFHG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3699 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 7 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr C Jayawardena |
| Solicitors for the Applicants: | Chandra Jayawardena Solicitor |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 13 August 2003 in matter N02/43052.
Order that 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 6 June 2002.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3699 of 2004
| SZFHF |
First Applicant
| SZFHG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 21 December 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 16 July 2003 and handed down on 13 August 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicants’ claims should be believed, nor whether they qualify for a refugee visa.
The applicants arrived in Australia in November 1998, on visitors’ visas granted to enable them to visit their son and daughter who are Australian residents or citizens. Their visit was protracted, and on 27 February 2002 they lodged separate applications for protection visas, relying on claims that both of them had fears of persecution if they returned to their country of nationality, Armenia. They were separately interviewed by a departmental officer on 10 May 2002, before a delegate refused their applications on 6 June 2002. They then appealed to the Tribunal on 19 June 2002, and the Tribunal received their separate evidence at a hearing on 13 June 2003.
There have been delays in this matter at each stage of its progress, including between the date of the Tribunal’s decision and the application to this Court. However, no point is taken by the Minister in relation to that delay, and the reasons for it were not explored before me. I note that the applicants’ claims presented some difficulties in assessment, and that they also have significant compassionate reasons for being considered for permanent residence in Australia. The present Tribunal drew attention to these at the conclusion of its reasons, and recorded its own opinion that “the combination of the distress they suffered in Armenia because of their son [who has been granted refugee status in Australia] and the close family ties in Australia appear to raise strong humanitarian considerations”. I share the Tribunal’s sympathy for the applicants, but I must confine my consideration of their case to the narrow legal issue of whether the Tribunal made a jurisdictional error when affirming the delegate’s decision on their entitlement to protection visas.
The applicants’ best argument is that the Tribunal’s decision was vitiated by a failure to follow procedures required under s.424A(1), of inviting written comments upon particulars of information “that the Tribunal considers would be … a part of the reason for affirming the decision that is under review”. Following SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, it is not contested by the Minister that a departure from this obligation by the Tribunal would give rise to jurisdictional error and entitle the applicants to the relief they seek.
In the course of submissions I was taken to first instance Federal Court authorities since SAAP. These are not always easy to reconcile, and left me in some doubt whether in the present case the Tribunal did relevantly rely upon “information” covered by s.424A(1). I reserved my decision, and indicated that I might await clarification from the Full Court in several cases in which it had reserved judgment. However, judges in my Court incur criticism if their judgments are reserved for longer than three months, and I decided that I should not further delay my judgment. I had arrived at a decision favouring the applicants, prepared reasoning which appears below, and appointed a date for delivering judgment, before the Full Court delivered their judgment in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. That judgment significantly assisted the applicant’s case, and in the circumstances I did not feel it necessary to invite further submissions.
I have decided that “a part” of the Tribunal’s reason for finding against each applicant was some information specifically about that applicant, and which that applicant did not give for the purposes of his or her review application so as to be excluded by s.424A(3)(a) and (b) as interpreted in current authorities in the Full Court (see, in particular VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [20], [24], and [33], and SZEEU (supra) at [9], [154], [184], declining not to follow Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27). That information was information taken by the Tribunal from records of the applicants’ interviews with the department officer prior to their review application and from the applicant husband’s written statement accompanying their visa applications.
I shall below explain how I have arrived at this conclusion. It means that I do not need to address other grounds of review raised by the applicants’ applications and their solicitor’s submissions.
It is unnecessary for me to detail the histories claimed by the applicants, and the evidence they gave at various stages of the administrative proceedings. This is fully set out in the Tribunal’s statement of reasons.
In short, the applicant’s son was granted a protection visa by Australia in December 1997, upon acceptance of a history that he had incurred the enmity of military officers during his period of conscription into the Armenian Army. He witnessed serious mistreatment of conscripts, including the murder of a shell‑shocked friend while at the front line in the Nagorno‑Karabakh conflict. His parents had to raise large amounts of money to obtain his discharge by the payment of bribes, and officers continued to look for him after he left Armenia. A delegate was satisfied that he had a well‑founded fear of persecution for reasons of his membership of a particular social group of conscripts. The present Tribunal said that it accepted this background to the claims of the applicants.
The applicants claimed that the husband had travelled to Greece and worked there to raise money to assist their son to leave Armenia. He continued to work in Greece, but returned after two years absence when he heard that his wife was ill. He learned “that the reasons why my wife was ill was because the soldiers were terrorising her and asking for more money to leave her alone because of what I had done to help my son escape”. They claimed that further demands and threats were made to them, and this caused them to spend six months in “a house in the mountains which the soldiers didn’t know about” while their children arranged for their travel to Australia. They said that “since we have been in Australia we have received news that the soldiers have taken possession of our house and have sold it to one of their own people”.
In its findings and reasons, the Tribunal said:
I accept that the applicant wife suffered some degree of harassment following the departure of the applicant husband for Greece. I accept that she was asked for money on a number of occasions. I further accept that she received harassing telephone calls. I accept that the demands for money and the telephone calls were connected to the applicants’ son.
However, in view of the significant internal inconsistencies in the applicants’ evidence I do not accept a number of claims made by the applicant.
The Tribunal then identified six significant elements in the applicants’ claims which it did not “accept”, and explained “inconsistencies” which caused it to find that these did not occur. The claims which were rejected were:
i)“that the applicant husband returned to Armenia after finding out that his wife had been pushed down the stairs by soldiers”. The Tribunal’s adverse finding appears to reject both that the wife was pushed down the stairs, and that the husband found out about this before he returned from Greece. The applicant husband had claimed these events in his evidence to the Tribunal’s hearing. The Tribunal rejected them because “at the departmental interview the applicant husband indicated that he did not know that his wife had been targeted until after he returned to Armenia”.
In my opinion, this reasoning relied upon “information” found in the record of the departmental interview, being the content of statements attributed to the applicant husband. The effect of the reasoning is that the Tribunal preferred to accept that information as true rather than the applicant’s subsequent evidence. The consequence was that it resolved the inconsistency adversely to the applicant. In my opinion, this was not a situation where the Tribunal merely pointed to inconsistent evidence being given without making a finding as to which version was preferred, as a reason for not being satisfied as to the truth of a claim (c.f. Lindgren J in SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 at [20]‑[23]). Moreover, a majority in SZEEU disapproved reasoning which applies s.424A(1) to prior information only if the Tribunal accepted its truth, and held that a finding against credibility based upon inconsistency between a prior statement and later evidence could reveal prior “information” as “a part” of the reasons for affirming the delegate’s decision (see Allsop J at [221] and [225] and Weinberg J at [158]).
ii)“that the applicants were extorted after the applicant husband returned from Greece”. The husband’s original statement had said: “When they found that I had returned to Armenia, not long after they came to our home, which was nearly empty by then, and said if I didn’t come up with so much money that they were going to take me in the place of my son”. The Tribunal rejected this claim because: “the applicant husband indicated during the departmental interview that he did not have any contact with the people who had extorted his wife. This was contrary to the evidence provided by the applicant wife. At the hearing the applicant husband stated that he had seen the extortionists following his return from Greece. I do not consider that any credible explanation has been offered for this inconsistency”.
In my opinion, the Tribunal preferred the applicant’s evidence recorded by the delegate: “He did not see or meet any of the extortionists”, rather than his wife’s inconsistent evidence to the delegate and his inconsistent evidence given at other times. It therefore preferred and relied upon “information” recorded at the interview when reaching its finding. In my opinion, this was not merely a situation where the Tribunal pointed to an inconsistency in the material before it as leaving it in doubt. Moreover, even if its reasons were so read, SZEEU would still require a notice to raise the issue under s.424A(1).
iii)“that the applicant wife was physically abused by those people who had asked her for money and harassed her”. The Tribunal rejected this claim because: “if this had happened to the applicant wife, I consider that it would have been referred to in the protection visa application or during the interview with the department”.
In my opinion, this reasoning relied upon “information” from the content of the applicants’ statements to the delegate in a manner which Allsop J considered gave rise to a duty under s.424A(1) in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200. At [30], he explained:
To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information. (his emphasis)
The present is not a situation in which Allsop J has found no duty under s.424A(1), where a Tribunal points to gaps in original visa claims and “the absence of further information” as explaining its inability to be satisfied (see SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801 at [22]‑[25], citing SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and c.f. Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [29]). In SZEEU at [224] Allsop J maintained his opinions in SZECF, and Weinberg J accepted and explained the point at [177].
iv)“that the applicants were in hiding after the applicant husband returned from Greece”. The Tribunal explained its rejection of this claim by identifying “shifts in the applicants’ evidence” and “other problematic aspects of the evidence”, after comparing the evidence each of them gave on this topic during the departmental interview, and also comparing that evidence with their separate evidence to the Tribunal’s hearing.
On recent first instance authorities delivered before SZEEU, I was inclined to conclude that no failure arose under s.424A(1) in relation to this reasoning. The Tribunal did not rely upon “information” given on earlier occasions as providing “a reason” for the Tribunal’s adverse finding, in the sense of accepting earlier evidence in preference to later evidence. On one analysis, the Tribunal’s reference to the “inconsistencies” as the reason for its dissatisfaction as to the truth of this claim show reliance merely upon its mental process of “assessment of claims”, which some authorities suggest does not give rise to a duty to raise the matter by way of a s.424A(1) invitation (c.f. VAF (supra) at [24(iii)]). The distinction appears to be that the rejection of the claim is due to the Tribunal’s opinion that all the evidence relating to the claim is unreliable due to inconsistencies in it, rather than due to a finding which relies upon earlier evidence providing “information”.
However, Full Court cases decided before SAAP suggested that reliance on “inconsistency” in this manner also brings a need to raise the significance of earlier inconsistent evidence by way of a s.424A(1) notice (c.f. Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [15], [34], and [37]‑[42], and Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 131 FCR 1 at [6]‑[9], [11], [55]‑[56], and [89]‑[90]). I find this reasoning clearer and more satisfying, since it avoids an abstruse distinction between information in evidence used as “a reason” and identification of conflicts in evidence used as “a reason”.
The issue has now, in my opinion, been concluded by the majority judgments in SZEEU. As Allsop J said at [225]: “if the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision”. This is applicable to the Tribunal’s reasoning here. In my opinion, information was taken by the Tribunal from the prior statements of the applicants, being its knowledge that they made statements differing from their later statements, and this information was “a part” of its reasons for rejecting this significant element in their claims. A notice under s.424A(1) was therefore required to raise the matter.
v)“that the applicants had any difficulty leaving Armenia”. The Tribunal’s reason for rejecting this claim was: “at the departmental interview the applicant wife indicated that she and her husband had difficulty leaving Armenia, and had to leave by “the back door”. However, the applicant husband indicated that they had no such difficulty as they had no problems with the Armenian authorities. At the hearing the applicant husband changed his evidence, claiming that he and his wife did have problems with the authorities. In my view, no credible explanation has been provided for the inconsistency in the applicants’ evidence”.
In my opinion, the Tribunal’s reasons for rejecting this claim drew upon the record of the departmental interviews in two ways. First, it accepted the recorded evidence of the husband to the delegate and preferred it to that of his wife. Secondly, it found that the applicant husband gave evidence to the Tribunal which was inconsistent to his earlier evidence, and could not provide a “credible explanation” for this. On the majority judgments in SZEEU, both elements reveal that prior information was a part of the Tribunal’s reasons for rejecting this element in the applicants’ claims.
vi)“that the applicant husband would be forced into military service if he returned to Armenia”. The Tribunal rejected this claim by reference to general country information, and no issue arises in relation to s.424A(1) due to the exclusion in s.424A(3)(a).
The significance of these adverse findings in the Tribunal’s decision to affirm the delegate’s decision is shown in its general finding at the end of its discussion of them:
In my view, the overall impression given by the applicants’ evidence at the departmental interview and the hearing is that both applicants were prepared to amend their evidence if they considered it in their interests to do so. I am led to conclude that they fabricated their claim to have been extorted following the return of the applicant husband from Greece, as well as their claims to have been in hiding and to have been of interest to the authorities prior to their departure from Armenia. I am of the view that the applicants did so in order to enhance their claims to refugee status.
In my opinion, this finding in itself reveals the use of “information” gleaned from the departmental interview as a significant reason for reaching an opinion on “fabrications” which, itself, was a significant part of its reasons for affirming the delegate’s decision. Although the Tribunal does not identify particular elements in the contents of the departmental interview which produced its “overall impression”, this conclusion can only stand as a rational exercise of power if it was sourced in “information” taken from the departmental record. In my opinion, that information should have been particularised and put to the applicants in a notice under s.424A(1).
Further, the finding that claims (ii), (iv) and (v) were “fabricated” also illuminates its earlier adverse findings about those claims, by confirming that the Tribunal preferred the husband’s evidence in relation to these matters given at the departmental interview, over the evidence given by his wife and his later evidence. It also confirms that each of the Tribunal’s adverse findings in relation to particular claims should be regarded as “integral” parts of its reasons for affirming the delegate’s decision, within the test identified in VAF (supra). Moreover, as I shall explain below, that test has now been substantially weakened by the reasons of the majority in SZEEU.
Following its adverse findings on particular claims, and its finding on “fabrications”, the Tribunal addressed further issues. This included rejecting benign explanations for the applicants’ “inconsistencies”. The Tribunal also considered the significance of some documents they provided to corroborate their claims.
The Tribunal also considered their delay in applying for protection visas and concluded that this was “of some significance”. I am inclined to conclude that this opinion also provided “a part” of the Tribunal’s reason for rejecting the credibility of significant claims made by the applicants. If so, upon the majority reasoning in SZEEU, the reasoning was based upon “information” which was not given for the purposes of the review application, i.e. the Tribunal’s knowledge from documents in the departmental file as to the date when the visa applications were lodged (see Allsop J at [254], Weinberg J agreeing at [171], Moore J in dissent at [69]). This was, therefore, also required to be the subject of a s.424A(1) invitation.
At the end of its reasons, the Tribunal summarised its conclusions in a manner which did not identify other independent “reasons” for affirming the delegate’s decision (c.f. Allsop J in SZEEU at [233]):
As noted above, I accept that the applicants paid money to protect their son from unscrupulous military personnel. I also accept that the applicant wife was asked for money and received harassing telephone calls following the departure of her husband for Greece. However, on the evidence before me I cannot be satisfied that any harm suffered by the applicant wife was serious enough to amount to persecution within the meaning of s. 91R(1) of the Act. Moreover, I am not satisfied that the applicant wife continued to be harassed following her husband’s return to Armenia. Nor am I satisfied that the applicant husband was harassed or otherwise harmed after his return to Armenia. In the circumstances, I cannot be satisfied that there is a real chance the applicants would face harm serious enough to amount to persecution if they return to Armenia. Accordingly, I am not satisfied that the applicants have a well‑founded fear of persecution for a Convention reason.
In my opinion, these conclusions can only be understood as being substantially, if not completely, based upon its adverse findings on the six claims I have dealt with above, its opinion on “fabrications” and its opinion concerning the delay in application. This confirms my opinion that the earlier information upon which most of these findings relied provided “integral parts” of its reason for affirming the delegate’s decision and were “important aspects” of its reasoning process (c.f. VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [54]).
Even if this characterisation of the significance of the prior information were wrong, those tests have now been weakened by the majority in SZEEU (see Allsop J at [215], Weinberg J agreeing at [155]). It is now clear that prior information may be found to provide “a part” of the Tribunal’s reasons for affirming the delegate’s decision even if it was only “subsidiary and minor” (c.f. Weinberg J at [158] and [164]), or if it did not “play a central or integral role in the reasoning process” but “did play a part in the disbelief of the [applicant], which was the or a reason for the decision” (c.f. Allsop J at [227]). Plainly, in the present case, information derived from the departmental interviews and file can be so identified.
I therefore consider that the Tribunal’s decision was vitiated by a failure to follow procedures required by s.424A(1), and the applicants are entitled to the relief they seek.
I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 28 February 2006
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