SZFVX v Minister for Immigration
[2006] FMCA 1204
•23 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVX v MINISTER FOR IMMIGRATION | [2006] FMCA 1204 |
| MIGRATION – Review of RRT decision − where applicant claimed persecution on basis of the Convention ground of religion (Ahmadia) − where applicant failed to produce proof of his Ahmadi membership to the Tribunal − where Tribunal considered this failure to produce further evidence damaged the applicant’s credibility − whether Tribunal’s information that the Australian Ahmadi Association provides confirmation about a person’s adherence to Ahmadia is ‘information’ for the purposes of s.424A − whether the non provision of that information to the applicant caused the Tribunal to be in breach of s.424A. |
| Migration Act 1958, s.424A |
| SAAP v Minister for Immigration [2005] HCA 24 SZEEU v Minister for Immigration [2006] FCAFC 2 S266/2003 v Minister for Immigration [2006] FCA 651 SZBCS v Minister for Immigration [2005] FCA 1457 |
| Applicant: | SZFVX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG590 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 August 2006 |
| Date of Last Submission: | 10 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
THE COURT DECLARES THAT:
The decision of the Refugee Review Tribunal made on 19 January 2005 and handed down on 10 February 2005 is invalid.
THE COURT ORDERS THAT:
The application is remitted to the Refugee Review Tribunal to be heard and determined according to law.
The respondent to pay the applicant’s costs assessed in the sum of $5,000.00.
THE COURT NOTES that it will issue prerogative writs if so requested.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG590 of 2005
| SZFVX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia on 27 April 2004. On 10 May 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 July 2004 a delegate of the Minister refused to grant a protection visa and on 23 August 2004 the applicant applied for review of that decision. The applicant attended a hearing together with his immigration advisor on
7 December 2004. On 19 January 2005 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on 10 February 2005.
The only relevant claim made by the applicant for the purposes of this review of the Tribunal’s decision is that he is an Ahmadi, which is a branch of Islam considered to be heretical by both Sunni and Shiite Muslims. He claimed that in the past he had suffered persecution in Bangladesh as a result of his religious affiliation and feared that if he returned to Bangladesh he would continue to suffer such persecution.
At [CB 31] in the reasons of the delegate the following is noted:
“The applicant stated that he would be providing certain material, including “Documentary evidence regarding my persecution in Bangladesh” and “details letter”. However, he has failed to provide any such material up to this date, more than two and a half months after he lodged this application, and three months after he arrived in Australia.”
At [CB 32] the delegate says:
“I note he has provided no evidence of his faith even though such evidence would be easily available through the Ahmadi organisation in Australia.”
In his application for review of the decision of the delegate the applicant notes at [CB 40] that he wishes to call a particular witness. He states in regard to that witness:
“He will give oral evidence regarding my involvement of Ahmadia and ??? of my persecution as an Ahmadia.”
At [CB 74] the Tribunal notes that in his application, in response to question 13 [CB 8], the applicant stated that he would provide later the following documentation to support his claim:
“Certificate from the Ahmadi community.”
At [CB 75] the Tribunal notes:
“The Tribunal examined the applicant’s passport. The applicant advised that he did not have any documents to submit at this time and that he was awaiting supporting documentation from Bangladesh. Two weeks prior to the hearing he had requested a friend in Bangladesh to obtain a letter from the Ahmadiyya Muslim Jamaat (hereinafter referred to as the AMJ) advising that he was a member of that community (although he was “not registered’) and that he had suffered persecution as a result. …
The Tribunal agreed to the applicant’s request that he be given a week within which to submit this documentation. It noted, however, that the applicant had foreshadowed in his protection visa application (received on 10 May 2004) that he would obtain these documents, and expressed surprise that he had not sought to do so until recently.”
At [CB 77] the Tribunal states:
“Regarding his contact with the Ahmadi association in Australia, the applicant said that he had approached them some two weeks prior to the hearing to request documentation. The applicant said that he did initially know where the mosque was located, and that work and financial concerns – his inability to attend Friday services and functions because of his work, and, alternatively, his lack of funds when he did not have work – had prevented him making contact with them. The Tribunal noted that the applicant could readily have sought contact details from other Ahmadis prior to his departure from Bangladesh.”
In its findings and reasons commencing at [CB 80] the Tribunal says:
“The applicant has identified one factor only which gives rises to his fear of persecution, that is, his Ahmadi adherence.…. The Tribunal’s first task is to determine the veracity of the applicant’s claimed adherence to the Ahmadi sect. It does so on the basis of the Applicant’s oral evidence and documentation.”
The Tribunal then goes through the oral evidence of the applicant before turning to certain documentation which he had produced. One of those documents was a letter from a person he described as a friend in Bangladesh which is addressed “To whom it may concern” and states relevantly:
“As well I know he is an Ahmadiyaat and his life is in risk in Bangladesh by anti Ahmadiyaat Muslim Jamat.”
That letter is dismissed by the Tribunal in the following way:
“However, the letter is clearly not independent or authoritative and the Tribunal is unable to give its contents weight as evidence to support the applicant’s claimed Ahmadi membership. [CB 82]
At [CB 84] the Tribunal makes the comments and finding which are the subject matter of this application:
“Finally, the documents which the applicant has failed to produce cast further doubt on his claimed Ahmadi membership. The applicant has had ample opportunity since his arrival in Australia in May 2004 to obtain documented confirmation, in whatever form, from the Ahmadi community in Australia that they recognise his adherence. The Tribunal advised the applicant at hearing that it considered it reasonable to expect such endorsement and that this could be relevant to its assessment of his claim. The applicant has not provided any such documentation or provided any insights as to why he was unable to obtain it. The Tribunal finds that this is not consistent with his claimed Ahmadi adherence.”
The applicant argues in his further amended application that the Tribunal fell into jurisdictional error because:
“It failed to give the applicant particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.”
The application should have really said that the Tribunal had failed to give those particulars in the manner prescribed by law, i.e. in writing as required by ss.424A and 441A of the Migration Act 1958 (the “Act”) as interpreted by the High Court in SAAP v Minister for Immigration [2005] HCA 24. Section 424A is in the following form:
“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.”
The applicant argues that the information, details of which should have been given to the applicant, was that the Ahmadi community in Australia provided confirmatory information about a person’s adherence to their religion and that its non provision would be an indicator that he was not a member of that sect. The applicant said that this information was part of the reason for affirming the decision under review. The information should therefore have been provided to him in writing even though it seems clear from the extract of the reasons set out above that the applicant was provided with notice of the Tribunal’s concern about these matters at the hearing.
The respondents sought to argue that the non-production of the documentation was not “information” for the purposes of s.424A because the failure to provide the documentation was merely the Tribunal’s response to the applicant’s promises to provide it. In other words, the Tribunal’s decision related to matters which would have come within the exception found in s.424A(3)(b) of the Act and was thus not susceptible to the requirements of 424A(1). The respondent argues that the comments of the Tribunal are no more than an expression of its reasoning process, saying in effect ‘I cannot rely on this applicant’s claims because he promised to produce information to back them up and he has not.’.
If there is to be any merit in the respondent’s submissions then the court must be satisfied that the information that the Tribunal is talking about and the information which the applicant promised to provide are one and the same. Having looked closely at all the references to the provision of extra information in the court book as set out in these reasons, I am not convinced that they are. The reference in the delegate’s decision found at [CB 31] says nothing about the Ahmadi community in Australia. The reference on page 2 is to the views of the delegate, it does not refer to some promise made by the applicant. The details of the evidence that the witness was proposing to give does not mention Australia. But it is noteworthy that the person named as the proposed witness is the person who wrote the letter from Bangladesh found at [CB 66] to which I have previously referred. In other words it relates not to evidence from the Ahmadi community in Australia but to a person who knows the applicant as an Ahmadi in Bangladesh. Finally, the references found at [CB 75] are also to documents from Bangladesh and therefore I am unable to accept the submissions of the respondent in this regard.
In my view the Tribunal’s reasons for its decision indicate that it posited what I described in arguendo as a litmus test. If the applicant was able to produce the written documentation from the Ahmadi sect in Australia then his claims to be an Ahmadi would be much more likely to be accepted. The failure to provide that documentation was therefore part of the reason for affirming the decision under the review. The “information” which the Tribunal did not give to the applicant in writing concerning this was as earlier set out.
In the course of the well argued hearing I was taken to a number of authorities. In SZEEU v Minister for Immigration [2006] FCAFC 2 Allsop J said at [205]:
“[205] Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].
[206] Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s.424A. The thought processes of the Tribunal may reveal the relevance of information for s.424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s.424A(1)(a), (b) or (c).
[207[ The word ‘information’ has been said not to encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29], cited in VAF at [24]. It will be necessary in due course to explain the limits of this expression of view.”
I think that this description of information adequately covers the knowledge that the Tribunal had about the ability of the Ahmadi Association in Australia to identify the applicant. I do not think that this information is information which would fall within the exception found in s.424A(3)(a) because it is information directly about the applicant. For the avoidance of doubt I would say that the reason why I am satisifed that this information was information which was part of the reason for affirming the decision under review is because after the paragraph in which the failure to produce the document is referred to the Tribunal says:
“In light of the evidence above – particularly the applicant’s lack of religious or other affiliation with the Ahmadi – the Tribunal is not satisfied that the applicant is an Ahmadi member or has any association whatsoever past or present with this community.”
I am equally satisifed that this is not a case such as that considered by Tamberlin J in S266/2003 v Minister for Immigration [2006] FCA 651 where as his Honour says at [8]:
“The Tribunal notes that the applicant has not provided details of the history of involvement, what has happened to him as a result of any alleged persecution…”
which enabled him to say at [15]:
“The reference to “information” in s.424A does not encompass a failure to mention a matter to the Tribunal.”
I am also not convinced that this case has any relevant similarities with SZBCS v Minister for Immigration [2005] FCA 1457, which was another case where the applicant did not attend the Tribunal and where the Tribunal found there was an insufficiency of evidence. It was against that background that her Honour said in respect of the word “information” at [23]:
“I also agree with Heerey J in MZWPK v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1256 that the word "information" in s.424A(1) imports at least some positive factual material and does not apply where the Tribunal has simply identified a lack of any information. The observation that it would have been possible to investigate the appellant’s claims more fully had he attended, does no more than emphasise this insufficiency. In WABY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1091 (cited with approval by the Full Court in WAGP and by Kirby J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57 at [194]), Tamberlin J has rejected a contention that the Tribunal is obliged to provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion.”
In the case before me it is not a general lack of information that is complained of, it is the applicant’s failure to provide a particular piece of information which the Tribunal believed he could have provided if he had been a genuine applicant. It was the information which the Tribunal had about the activities of the Ahmadi community in Australia that was required to be given to the applicant in writing.
I am satisfied that even though the Tribunal provided the applicant with procedural fairness at the time of the hearing it did not comply with the provisions of s.424A(1) and for the reasons given by the High Court in SAAP it has thus fallen into jurisdictional error. I would order accordingly.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
8
1