SZGBI & Ors v Minister for Immigration
[2007] FMCA 199
•2 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 199 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visas – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424, 424A, 483A |
| CVWBF v Minister for Immigration [2006] FCA 851 M47/2004 v Minister for Immigration [2006] FCA 176 Minister for Immigration v Al Shamry [2001] FCA 919 MZWMQ v Minister for Immigration [2005] FCA 1263 MZWMQ v Minister for Immigration [2006] HCATrans 361 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 SAAP v Minister for Immigration [2005] HCA 24 SZBWJ v Minister for Immigration [2006] FCAFC 13 SZCJD v Minister for Immigration [2006] FCA 609 SZHTL v Minister for Immigration [2006] FCA 1052 VWFP & Anor v Minister for Immigration [2006] FCA 231 WAGP v Minister for Immigration [2006] FCAFC 103 |
| Applicants: | SZGBI, SZGBJ, SZGBK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG892 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Jenkins |
| Solicitors for the Applicant: | Kessels Goddard & Ajuria |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 12 April 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG892 of 2005
| SZGBI & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 April 2005 for judicial review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 24 February 2005 and handed down on 16 March 2005, affirming a decision of the delegate of the first respondent made on 16 September 2004, refusing to grant the applicants Protection (class XA) visas. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZGBI” (applicant husband), “SZGBJ” (applicant wife) and “SZGBK” (son of the applicant wife).
A Court Book ("CB") prepared by the respondents’ solicitors was filed and served on 6 May 2005. It is marked Exhibit “A” and is read into evidence.
Background
The Tribunal decision of Ms Mila Males, reference N04/49900, provides the following background information. The first and second named applicants are husband and wife and the third applicant is their son. They claim to be citizens of Laos. They arrived in Australia on 23 July 2004. On 3 September 2004, they lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. On 16 September 2004, a delegate for the Minister refused to grant Protection (Class XA) visas and on 27 September 2004, the applicants applied to the Tribunal for a review of the delegate's decision.(CB 180)
According to the original visa application, the applicant husband is a 42-year old national of Laos. He has had 20 years of education, including five years in the former Soviet Union and worked as a teacher from 1988 to July 2004. The applicant wife has had six years' education and gave her occupation as home duties. The applicant son was a 15-year old student at the time of the original visa application.(CB 183)
The applicants husband and wife gave oral evidence before the Tribunal on 18 November 2004 with the assistance of a Lao interpreter. The applicant son did not wish to give evidence. Prior to the Tribunal hearing, the husband and wife indicated in writing (Response to Hearing Invitation forms) that they wanted the Tribunal to take evidence from two witnesses, Mr Rodney Pheng Sacsady and Ms Detthida Arounsavat. They also indicated that they wanted a Mr Bounkhong Arounsavat to attend the hearing as a relative.(CB 194) At the hearing, the Tribunal noted that Mr Arounsavat had assisted the applicants with their application and was present to give evidence as a witness. The Tribunal declined to take oral evidence from any of the witnesses put forward by the applicants, instead inviting the three witnesses to give evidence in writing.(CB 195) Following the hearing, the Tribunal received letters from Mr Sacsady, Mr Arounsavat and Ms Arounsavat.
Applicants’ claims
The applicants claimed persecution on the ground of political activity. The applicant husband claimed to fear persecution by the Laos government because he was a member of the Democratic Government Underground ("DGU"). The husband claimed that:
a)In November 1999, he joined the DGU, an anti-government party, because of his political idealology. His house in Vientiane was used as a safe house and a contact point for members. The husband provided members with maps of the city and information relating to the government;
b)Since November 1999, the DGU had launched attacks on the government, including a number of bombings. The applicant was involved in these attacks;
c)Not long before he arrived in Australia, local authorities questioned the applicant about the constant flow of people entering his home;
d)His Laos passport, issued to him in May 2002, was obtained with difficulty.(CB 184-5)
Tribunal’s findings and reasons
A convenient summary of the Tribunal's reasons are contained in the first respondent's written submissions prepared by Ms Pepper, and I adopt paragraphs 5 to 12 of those submissions:
5. The applicant submitted several documents prior to the hearing, including letters from his father and godfather, evidence of his membership of the Laos Society in Australia, and an article that he wrote criticising the Laos government during his time in Australia. The applicant and his wife both gave evidence at the hearing.
6. The Tribunal noted the number of difficulties with the applicant's evidence, which the Tribunal put to the applicant during the hearing, ie:
(a) The applicant and his wife gave different dates as to when he joined the DGU. The applicant claimed that his wife was mistaken. There were also other inconsistencies between their evidence, aspects to how often the applicant was questioned;
(b) The applicant's evidence was internally inconsistent as to when the bombings occurred;
(c) The applicant claimed he was a member of the Democratic Government Underground, however, the Tribunal could not find any record of such an organisation; and
(d) The applicant had not previously expressed any political opinions prior to joining the DGU. The Tribunal noted it was not credible that the applicant would suddenly join a group that committed violent acts because of his political opinions (CB191).
7. The Tribunal put to the applicant that it was unlikely the group's head office would be in Vientiane as it is the capital of Laos and would easily be detected by authorities (CB192). It also commented that if the office was in the capital city, the applicant would not need to distribute maps to adherence. The applicant claimed some members did not know Vientiane at all well (CB192).
8. The applicant claimed he had trouble obtaining a passport because he had to hire someone to do it in secret. The Tribunal queried that if this was the case, why did he, upon receipt of his passport, go to Cambodia on a holiday and then return to Laos. It commented that this was not behaviour consistent with someone who feared persecution (CB192).
9. The Tribunal also expressed some doubt about the documents provided by the applicant which were put to the applicant during the hearing.
10. The Tribunal decided not to take evidence from the witnesses nominated on the applicant's Response to Hearing Invitation, but invited the three witnesses to give evidence in writing (CB194.45 to 195).
11. The applicant provided post-hearing submissions to the Tribunal (including submissions from the three witnesses). The Tribunal found that the three witnesses, in their evidence, went beyond what was claimed by the applicant and therefore these claims did not require consideration by the Tribunal. (CB203.7 to 204). The witness statements included a claim that the applicant would suffer persecution as a result of being a returnee to Laos after having been in a Western country. The Tribunal concluded that it was unnecessary to consider this claim because the applicant had not in fact raised it (CB204.6).
12. Thus, the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason. This was because the Tribunal did not find the applicant to be a credible witness. (CB207.7). He concluded that "he is thoroughly lacking in credibility and invented the claims that he joined the underground government group" (CB207.7).
Application for review of the Tribunal’s decision
On 12 April 2005, the applicants filed an application for review under s.39B of the Judiciary Act. On 21 September 2006, the applicants filed an amended application which contained the following grounds:
Failure to Comply with section 424 Migration Act 1958 (Cth)
(1) The Tribunal committed jurisdictional error by failing to have regard to information that it was bound, by s.424 of the Migration Act 1958, to have regard to in making the decision under review.
Particulars:
(a) The applicants requested that the Tribunal take oral evidence from three witnesses. The Tribunal declined to take oral evidence, but invited the witnesses "to give any evidence about … any other matters in writing" (page 195 Court book).
(b) All three witnesses provide written information to the Tribunal pursuant to its request. Having got the information, the Tribunal was required to have regard to it pursuant to s.424(1).
(c) The Tribunal decided that the information did not require consideration (page 204 Court book).
(d) The Tribunal's decision not to consider the information was a breach of s424 of the Act, and which amounted to jurisdictional error.
Failure to Deal with Applicant's Claims
(2) The applicants’ witnesses gave written evidence to the Tribunal subsequent to the Tribunal hearing.
Particulars:
(a) The applicants’ witnesses were Mr Rodney Pheng Sacsady, Misss Detthida Arounsavat and Mr Bounkhong Arounsavat.
(3) The Tribunal received the written evidence from the applicants’ witnesses.
(4) The written evidence given by the applicants’ witnesses contained claims supporting the applicants’ claim for protection.
(5) The Tribunal did not consider the claims made by the applicants’ witnesses.
Failure to Comply with section 424A Migration Act 1958 (Cth)
(6) The first named applicant (the husband) claimed a well founded fear of persecution on the grounds he was a member of the underground government group, Free Democratic Peoples (Underground) Government of Laos.
(7) The Tribunal rejected the husband’s claims that he was a member of the underground government group or that he had assisted the group in any way.
(8) The conclusion was based, in whole or in part, upon the Tribunal's unfavourable assessment of the husband's credibility.
(9) That adverse assessment of the husband's credibility was based, in whole or in part, upon:
(a) The inconsistencies between the husband's evidence and the wife's evidence before the Tribunal; and
(b) The inconsistencies between the husband's evidence before the Tribunal and the husband's protection visa application.
(10) In respect to the facts pleaded in subparagraph 9(a), the Tribunal failed to comply with section 424A Migration Act 1958 (Cth) when it did not;
(i) give particulars of the wife's evidence to the husband in writing,
(ii) ensure, as far as is reasonably practicable, that the husband understood why the information was relevant to the review; and
(iii) invite the husband, in writing, to comment on the particular aspects of the wife's evidence.
(b) In respect of the facts pleaded in subparagraph 9(b), the Tribunal failed to comply with section 424A Migration Act 1958 when it did not:
(i) give particulars of the relevant part of the husband's protection visa application to the husband in writing;
(ii) ensure, as far as is reasonably practicable, that the husband understood why the information was relevant to the review; and
(iii) invite the husband, in writing, to comment on the particular aspects of the protection visa application.
Submissions and reasons
In respect of the first ground of review, that the Tribunal failed to comply with s.424 of the Act when it did not have regard to the information it got from the applicants’ witnesses, Mr Jenkins stated that the Tribunal invited the applicants’ witnesses to give any evidence in writing.(CB 195.6) The witnesses did so and the Tribunal received that evidence. However, the Tribunal stated:
The applicants had the opportunity to make their claims in their protection visa application, in their review application, prior to the Tribunal hearing and at the Tribunal hearing. As they neither explicitly nor implicitly made claims about the above matters raised by Mr Sacsady, Mr Arounsavat and Misss Arounsavat, they do not require consideration by the Tribunal.(CB 204)
Mr Jenkins argued that this failure to have regard to the witnesses' evidence constitutes a breach of s.424 of the Act.
Section 424 of the Act states:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
Mr Jenkins submits that the important parts of s.424(1) are the words "may get", which shows a discretion on the part of the Tribunal. However, once the Tribunal has got the information, it must have regard to it. There was an invitation to the witnesses to give evidence, which made on the Tribunal's own initiative. After having declined to take oral evidence from them, the Tribunal extended the invitation to the witnesses to provide evidence in writing after the hearing.
Mr Jenkins referred the Court to the following passage from the Tribunal decision:
At the end of the hearing, the Tribunal told the applicants and their witnesses that it had decided not to take oral evidence from the witnesses. The Tribunal told them that it accepted that the Laos government mistreated people who it viewed as being against it, and accepted that the first-named applicant had joined Laos organisation in Australia, thus there did not seem to be any need to take oral evidence about those matters. The Tribunal stated that it had to decide whether it believed the first-named applicant did what he said he did in Laos and whether he had joined the organisation in Australia simply to strengthen his refugee claim. The Tribunal invited all three witnesses to give any evidence about those and any other matters in writing. (CB194.9-195.1)
Mr Jenkins submits that it the invitation extended to the witnesses was a wide one. Following the hearing, the Tribunal received letters from all three witnesses. The receiving of the information is not in dispute.
Mr Jenkins then referred to the Tribunal's "Findings and Reasons":
The Tribunal concluded that Mr Sacsady and Mr Arounsavat or Ms Arounsavat went beyond giving evidence about matters they had knowledge about and speculated about what they thought might happen to the applicants in Laos. The applicants had the opportunity to make their claims in their protection visa application, in their review application, prior to the Tribunal's hearing and at the Tribunal hearing. As they neither explicitly or implicitly made claims about the above matters raised by Mr Sacsady, Mr Arounsavat or Ms Arounsavat, they did not require consideration by the Tribunal.(CB 204.4)
Mr Jenkins submits that after it had made an invitation and received the information, the Tribunal failed to have regard to it as was required by s.424 of the Act. The Tribunal did not consider and did not have regard to the evidence of the witnesses.
Ms Pepper, in her written submissions, submits that no such breach of s.424 occurred because s.424 was never engaged. By saying that the witness statements "did not require consideration", the Tribunal was merely expressing its conclusion that it elected not to hear from those witnesses; the Tribunal was entitled to do so pursuant to s.426 of the Act. Ms Pepper submits that it is clear from the Tribunal’s analysis of the witness statements vis-à-vis the applicants’ claims, that it did in fact consider the evidence of the witnesses but did not accord any weight to it. This is what was meant when it said that the letters of the witnesses did not "require consideration". No breach of the provisions arise because, either:
(a)The information the Tribunal received was not relevant and therefore, it was not under a statutory obligation to consider it; or
(b)The Tribunal did not have regard to the written statements of the witnesses and simply did not give them any weight.
In oral submissions, Ms Pepper argued that the alleged breach of s.424 can be addressed in three ways. First, although the Response to Hearing Invitation form shows that the applicants wanted witnesses to be heard, that does not impose a mandatory obligation on the Tribunal to hear those witnesses. Section 426(3) of the Act states:
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
Ms Pepper submits that there is no obligation on the Tribunal to take evidence from a nominated witness and that this is a complete answer to the alleged breach of s.424.
The second argument is that the Tribunal failed to have regard to the evidence provided by the applicant's witnesses. It is acknowledged that the Tribunal did seek additional information which it considered relevant. Ms Pepper acknowledges that in the absence of a transcript of the hearing to see how that invitation was issued, it is difficult to tell if the invitation necessarily falls within s.424 of the Act. If the Tribunal had issued a written invitation seeking further information from the witnesses, that invitation would fall within the ambit of s.424. However, that did not occur in this case and it is not apparent on the face of the Tribunal decision. More importantly, the qualifying phrase of s.424(1), "that it considers relevant", means there is no mandatory obligation on the Tribunal to have regard to any information which it receives. Ms Pepper submits that the Tribunal was explicit that this evidence was simply not relevant.(CB 204) Once the Tribunal had formed that subjective state of mind, it was no longer required to consider the material as s.424 was not engaged.
The third argument is that the Tribunal must have had regard to the evidence in order to assess its validity and its relevance. The statement by the Tribunal in which it concluded that the three witnesses went beyond giving evidence about matters they had knowledge of and speculated about what they thought might happen to the applicants in Laos, is a clear indication that the Tribunal did have regard to the evidence. Ms Pepper argues that the Tribunal stating that the matters raised by the three witnesses did not require consideration cannot be characterised as a failure by the Tribunal to have regard to the information or a conscious disregard of that evidence and information.
Ms Pepper submits, and I accept her submission, that the fairest way to characterise the explanation of the Tribunal, is that it did not require consideration of the witnesses' evidence, even though it had in fact considered it. It did not require the evidence because it simply was not relevant. On this basis, I am satisfied that the first ground of review cannot be sustained.
In respect of the second group of grounds – that the Tribunal failed to consider all claims made by the applicants – Mr Jenkins submits that the Tribunal failed to exercise its jurisdiction by failing to deal with all the claims arising from the material before it. The Tribunal said:
The applicants had the opportunity to make their claims in their protection visa application, in their review application, prior to the Tribunal hearing and at the Tribunal's hearing. As they neither explicitly nor implicitly made claims about the matters raised by Mr Sacsady, Mr Arounsavat and Miss Arounsavat, they do not require consideration by the Tribunal.(CB 204)
A failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it can constitute a failure to conduct a review as required by the Act and the Tribunal thereby falls into jurisdictional error: NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 (“NABE”) at [63]. The statements of the witnesses were part of the evidentiary material put before the Tribunal by the applicants. Mr Jenkins submits that the Tribunal explicitly stated that it did not consider this material, it failed to consider the case put to it by the applicants. Mr Jenkins submits that this failure constitutes a clear jurisdictional error.
Mr Jenkins acknowledged that the second group of grounds addresses a similar factual situation to that in the first ground. Section 414 of the Act requires the Tribunal to conduct a review. In doing so, the Tribunal must respond to the case that the applicant advances, which includes not just what is expressly stated by the applicant but also what arises from material which is put forth. Mr Jenkins referred the Court to NABE at [60] to [61]:
60. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
61. In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Mr Jenkins referred to the Tribunal statement:
The applicants had an opportunity to make their claims in their visa application, the review application prior to the Tribunal and at the Tribunal hearing…(CB 204.5)
He submits that by so doing, the Tribunal adopted the reasoning that because the applicants did not “make the claims” themselves, the evidence provided by the three witnesses was not to be accepted in support of the applicants' claims as this material was out of time and the opportunity to make the claims was lost. In other words, claims not explicitly stated by an applicant are excluded.
Ms Pepper submits in respect of the second group of grounds, that a fair reading of the decision demonstrates that the Tribunal did have regard to the witness statements. Ms Pepper argues that the Tribunal assessed them but simply did not believe that they were relevant or give them any weight. Ms Pepper acknowledged that NABE found that there is a need to go beyond what is submitted by applicants, who are often not represented nor assisted before the Tribunal. The Tribunal must do more in assessing an applicant’s claims. However, in this case, there is no hint or suggestion that those types of claims were ever made by the applicants.
Ms Pepper submits that there is nothing in the applicants' application, nor in the material attached to the application, to support the contention that the Tribunal failed to consider all claims made by the applicants.(CB 36, 37, 39) Ms Pepper argues that before the witness statements can be elevated to a claim made by the applicants, there needs to be some link or suggestion to support that argument.
Ms Pepper submits that the witness statements contained no links in support of any of the submissions made by the applicants. Further, there is no evidence before this Court (by way of transcript or other evidence) which identifies the relationship between the witness statements and the applicants' claims. I accept the submissions made by Ms Pepper and I am satisfied that the second group of grounds cannot be sustained.
In respect of the third group of grounds – that the Tribunal failed to comply with s.424A – Mr Jenkins submits that the Tribunal decision fell into jurisdictional error due to non-compliance with s.424A. It did so by assessing the husband’s credibility on:
(i) the inconsistencies between the husband’s evidence before the Tribunal and the wife's evidence before the Tribunal; and
(ii) the inconsistencies between the husband’s evidence before the Tribunal and the statements he provided in his original protection visa application.
Mr Jenkins submits that despite the fact that the husband, wife and son applied to the Tribunal for review together, each application is separate and independent, and each applicant must be treated as a separate applicant to the Tribunal: SZBWJ v Minister for Immigration [2006] FCAFC 13 at [45] per Nicholson and Emmett JJ. Mr Jenkins argues that the oral evidence of one applicant cannot be said to be "given" by another applicant pursuant to s.424A(3)(b). This is especially so in circumstances where the applicant on whose behalf it is purported to be given, is not present. Mr Jenkins submits that even if the applicant were present, the exception would still not operate to excuse the Tribunal from following the mandatory procedure required. In SAAP v Minister for Immigration at [63], McHugh J said:
Arguably, it is unnecessary to require the Tribunal to provide adverse material to the applicant in writing when the applicant is present to hear the information given by another person that the Tribunal receives as evidence. However, an applicant may not understand the significance of that information. So it is in the interests of fairness that the applicant should have the information in writing and should be given an opportunity to comment on it.
Mr Jenkins argues that the inconsistencies between the husband's evidence and the wife’s evidence “transformed” the wife's evidence into information which was a reason, or part of the reasons, for the Tribunal's adverse finding about the husband’s credibility and its subsequent decision to affirm the decision of the delegate of the first respondent. The Tribunal did not comply with s.424A of the Act when it failed to:
(i)give particulars of the wife's evidence to the husband in writing.
(ii)ensure, as far as reasonably practicable, that the husband understood why the information was relevant to the review; and
(iii)invite the husband to comment on that particular aspect of the wife's evidence.
Furthermore, that s.424A is not limited to circumstances where the information imports positive factual findings. Section 424A encompasses circumstances where the Tribunal considers information provided in the original visa application inconsistent with information provided at its hearing and that inconsistency is relevant to the assessment of the applicant's claim. The Tribunal noted an inconsistency between the husband's oral evidence about when the underground group began exploding bombs and the statement accompanying his original protection visa application.(CB 205.2)This inconsistency was the reason or part of the reasons for the Tribunal's adverse credibility finding and subsequent refusal of the husband's protection visa. It is argued that the Tribunal again failed to comply with the mandatory procedure required under s.424A of the Act when it did not:
(i)give particulars of the relevant parts of the husband's protection visa application to him in writing;
(ii)ensure, as far as reasonably practicable, that the husband understood why the information was relevant to the review; and
(iii)invite the husband, in writing, to comment on the particular aspects of the protection visa application.
Mr Jenkins referred the Court to Minister for Immigration v Al Shamry [2001] FCA 919 as authority that information given in the original protection visa application does not fall within the exception in s.424A(3)(b).
The Tribunal decision states:
Having had the opportunity to take oral evidence from the first‑named applicant, the Tribunal has concluded that he is not a credible witness. He gave his evidence in an hesitant and cautious manner which did not appear spontaneous or natural. Further, there were inconsistencies between his oral evidence and his wife's evidence, as well as independent evidence before the Tribunal. Other aspects of his oral evidence were unconvincing and not plausible.(CB 204.9-205.1)
Mr Jenkins argues that this passage clearly demonstrates that the Tribunal relied upon the inconsistencies in the evidence. Those matters which the Tribunal relied upon need only be in part of the inconsistencies between the husband’s original visa application and the evidence given at the Tribunal hearing. In relation to information the husband provided about when the Underground Government Group began exploding bombs, that information was first given in his original protection visa application:
Since I became a member in November 1999, the secret democratic government had launched attacks on the party and the government in the form of violence; namely, the bombs had blasted all over the country several times and have caused grave concern to the government. Many bombs blasts in the city of Vientiane happened with my assistance and involvement.(CB 38.1)
The Tribunal recorded the following evidence as given by the husband at the Tribunal hearing:
The applicant said the underground group was formed in secret in 1998 and started the bombings in 1998. The Tribunal noted that in the statement he submitted with his protection visa application, he said it had launched attacks since he joined the group in 1999. The applicant applied that the Underground Group was formed in 1998 and he met his uncle that year.(CB 190.7)
Mr Jenkins argues that the Tribunal in its decision provided a “catalogue” of concerns it had with the husband's evidence. It then relied upon the husband’s inconsistencies and the problems it had with the plausibility of his evidence to establish a finding of lack of credibility.In part, this was due to the inconsistency between the husband’s protection visa application and the evidence he gave at the hearing.
Ms Pepper submits in relation to inconsistencies between the husband’s and the wife’s evidence, that no breach of s.424A(1) arose because each applicant gave their evidence on behalf of the other. Therefore, the information provided falls within the exception contained in s.424(3)(b). In MZWMQ v Minister for Immigration [2005] FCA 1263 (“MZWMQ”) at [24], Marshall J said:
As a consequence of a matter raised on behalf the first respondent as a model litigant, the Court has also considered the possible impact on this appeal of the fact that the RRT gave no written notice to the first appellant about its intention to rely upon adverse evidence of the second appellant. Whatever other answers there may be to any submissions, if put, in reliance of that aspect of SAAP, s 424A(3)(b) of the Migration Act 1958 (Cth) operates to excuse the RRT from giving any written notice in the circumstances. That is because the second appellant was an applicant before the RRT; see by way of analogy, Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1 at [58].
Special leave to appeal to the High Court was refused on 2 August 2006 for the reason that, inter alia, “there is no reason to doubt the correctness of the decision of Marshall J”: MZWMQ v Minister for Immigration [2006] HCATrans 361 per Hayne and Crennan JJ.
This issue was considered again in ApplicantM47/2004 v Minister for Immigration [2006] FCA 176 (“Applicant M4/20047”) at [17] to [24] where Young J followed Marshall J in MZWMQ:
17.The appellant submitted that the Tribunal erred in relying on her husband’s contradictory evidence without putting that evidence to her.
18.Section 424A(1)(a) of the Act requires that the Tribunal provide to the appellant 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. However, the issue before McInnis FM was whether the husband’s evidence, as a dependant applicant, fell within the exception in s 424A(3)(b) of the Act in that it was information that ‘the applicant gave for the purposes of the application’. McInnis FM relied on MZWMQ to reach the conclusion that the husband’s evidence fell within the exception in s 424A(3)(b). The first respondent contended that the facts in this case are similar to those considered by Marshall J in MZWMQ. As a result, the Tribunal was not required to given written notice to the appellant of her husband’s inconsistent evidence.
19.In oral submissions, counsel for the respondents asserted that this Court is bound to follow that decision unless it can be shown that it was ‘plainly wrong’ and the appellant has not put anything to the Court to indicate that the decision of Marshall J was plainly wrong: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [16]. Additionally, counsel submitted that the statutory context of s 424A(3)(b) supports Marshall J’s interpretation. Counsel referred me to Pt IV of Sch 1 of the Migration Regulations 1994 (Cth) (“the regulations”). Regulation 1401(3)(c) provides that ‘[a]pplication by a person claiming to be a member of the family unit of a person who is an applicant … may be made at the same time and place as, and combined with, the application by that person.’ Counsel also sought to rely on s 48A(2)(ab) of the Act which defines ‘application for a protection visa’ for the purposes of the section as including ‘an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and (ii) who holds a protection visa.’
20.Counsel also referred to two additional cases that address the status of dependant applicants. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709, Weinberg J treated dependant family members as applicants in their own right for the purposes of s 425 of the Act, the section which gives the applicants an opportunity to give evidence to the Tribunal. However, in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504, Gray J interpreted s 424A(3)(b) widely so as to include evidence given by witnesses called on behalf of the applicant to the Tribunal. As counsel for the respondents noted, the proposition that the exception in s 424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ, and beyond the issue raised by this case.
21.I am not satisfied that I am only entitled to depart from the decision of Marshall J if I consider that his Honour was plainly wrong. There is no doubt that this proposition applies when a Full Court of this Court is asked to depart from a previous decision of the Full Court. But there seems to be no authority extending the principle to the decision of a single judge who was exercising appellate jurisdiction. So much was conceded by counsel for the respondents. The view I have reached is that I should accord MZWMQ the same authority and respect that I would accord other single judge decisions in this Court, and that I should not depart from it unless I am satisfied that it was wrongly decided.
22.The appellant and her husband are joint applicants in the proceedings before me, the appellant’s application and the husband’s dependant application having been combined pursuant to reg 1401(3)(c). I infer from the Tribunal’s reasons that the appellant was present when her husband gave evidence to the Tribunal. The Tribunal specifically notes that the appellant was asked about discrepancies between her evidence and her husband’s evidence. It also notes her responses that her husband was a very forgetful person and not very good with dates, and that her husband had confused the political parties that they were supporting.
23.In my opinion, it is consistent with the object and statutory purposes of s 424A(3)(b) to construe its reference to an application as including joint applications which are combined pursuant to the Regulations. In all the circumstances, including the reasons put forward by counsel for the respondents, I am not satisfied that MZWMQ was wrongly decided by Marshall J. I propose to follow MZWMQ and apply it in this case. Accordingly, I reject the appellant’s claim that the Tribunal erred in not giving particulars of the husband’s evidence to the appellant in the manner contemplated by s 424A(1)(a). As a joint applicant, the evidence given by the husband fell within the exception in s 424A(3)(b).
24.It also follows that, in my view, the Federal Magistrate did not err in rejecting the claim based on s 424 A.
(see also SZHTL v Minister for Immigration [2006] FCA 1052 at [20] to [21] per Cowdroy J)
Mr Jenkins’ argument here relies on SZBWJ v Minister for Immigration at [45] per Moore, Nicholson and Emmett JJ:
The analysis set out above of the visa application provisions and the Tribunal review provisions suggests that the Minister’s contentions may not be well founded. It seems reasonably clear from that analysis that, even if the criterion referred to in s 36(2)(b) depends upon a favourable decision in relation to a person who falls within s 36(2)(a), each application for review by the Tribunal is separate and independent. It would appear that each of the wife, the daughter and the son must be treated as a separate applicant to the Tribunal for review. If that is the case it would follow that the Minister’s basis for distinguishing SAAP v The Minister has no foundation.
Ms Pepper argues that the above extract is obiter dicta and therefore not binding on this Court. Further, the decision of Their Honours above does not refer to the current line of authority of single judges of the Federal Court which are directly binding on this Court. Ms Pepper contends that the type of inconsistency in this case clearly falls within s.424A(3)(b) of the Act.
I believe that SZHTL at [20] to [21] sets out the case law to be considered in this respect. In particular, ApplicantM47/2004 states that where there are inconsistencies between claims of members of a family unit and that information was provided to the Tribunal during the course of the Tribunal hearing, such a situation falls within the exception contained in s.424A(3). SZHTL does not refer to MZWMQ; however MZWMQ arrived at the same result.
In the circumstances I believe that I am bound by SZHTL, NZWMQ and Applicant M47/2004. Consequently, the third group of grounds cannot be sustained.
Ms Pepper submits in relation to the inconsistencies between the husband’s evidence before the Tribunal and the statement provided in his original protection visa application, that no breach of s.424A(1) arises with respect to this claim. When properly analysed, the inconsistencies did not themselves form the reason or part of the reason that the delegate's decision was affirmed: VWBF v Minister for Immigration [2006] FCA 851 at [45]; VWFP & Anor v Minister for Immigration [2006] FCA 231 at [62] to [63] and [70]; WAGP v Minister for Immigration [2006] FCAFC 103 at [41] to [44]; SZCJD v Minister for Immigration [2006] FCA 609 at [39] to [43]. Rather, what the Tribunal found "unconvincing" was "the applicant's evidence about how he felt being involved with a group that conducted bombings": CB 206.2. The Tribunal stated that:
For a person who had never engaged in any political activity or expressed any political view to anyone except to his wife, he gave his evidence about these bombings and the death and injury of innocent people in a detached manner which did not appear genuine.(CB 206.4 - emphasis added)
Ms Pepper submits that it was this detachment of the husband, and not any inconsistency, which led to the conclusion that this aspect of the applicant's evidence was unconvincing and which ultimately led to the Tribunal's rejection of the applicant's evidence that he joined the Underground Government Group. This was reinforced when the Tribunal concluded "on the basis of the above problem”.(CB207.7) Accordingly, Ms Pepper submits that either s.424A(1) was not engaged, or if it was, that the evidence was given by the applicant to the Tribunal during the course of its hearing and it therefore fell within the exception in s.424A(3)(b).
Ms Pepper argues the one has to analyse the Tribunal decision and the reason, or part of the reasons, for affirming the decision under review: SZEEU per Allsop J. An inconsistency between what is contained in the protection visa application and in the oral evidence before the Tribunal does not necessarily establish a breach of s.424A: SZHTL, NZWMQ and Applicant M47/2004. Mr Pepper referred the Court to the finding of inconsistency by the Tribunal:
In the statement he submitted with his protection visa application, the applicant claimed that the underground government started exploding bombings from time to time he became a member in November 1999 and he assisted with many of these bomb blasts. In his oral evidence he stated that the bombing started in 1998 when the group was formed.(CB 205-6)
Ms Pepper submits that properly analysed, that information does not form any part of the reasons of the Tribunal. Critically, the Tribunal went on to say that it found unconvincing the applicant’s evidence about how he felt being involved with a group that conducted bombings. The Tribunal found the applicant detached while giving this evidence which gave it the impression that he wished to avoid answering the question.
Ms Pepper then referred to the following observation by the Tribunal:
For a person who had never engaged in any political activities or expressed and political views to anyone except his wife, he gave his evidence about these bombings and the death and injury of innocent people in a detached manner which did not appear genuine.(CB 206)
It is submitted that it was that detachment which formed part of the Tribunal concluding that the applicant’s evidence was not genuine.
Ms Pepper submits, and I agree with her submission, that there was no breach of s.424A in this instance. A reference by the Tribunal to inconsistency between the applicant’s protection visa application and other oral evidence it is not sufficient to establish a breach of s.424A.
Conclusion
Both counsel provided the Court with detailed written and oral submissions and I thank both parties for them. I acknowledge that some of the areas in dispute here are subject to conflicting authorities. However, I believe that I have identified the authorities binding on this Court. Consequently, I am satisfied that none of the grounds set out in the amended application can be sustained and the matter should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 March 2007
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