SZGMI v Minister for Immigration - [2006] FMCA 284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 284

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nepal – whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered.

Migration Act 1958 (Cth), s.424A

SZEEU v Minister for Immigration [2006] FCAFC 2

Applicant:

SZGMI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1483 of 2005

Judgment of:

Driver FM

Hearing date:

1 March 2006

Date of last submission:

22 May 2006

Delivered at:

Sydney

Delivered on:

30 June 2006

REPRESENTATION

The Applicant appeared in person
(Written submissions after trial prepared pro bono publico by Mr R Nair)

Counsel for the Respondents:

Mr P Braham

Mr L Judd

Solicitors for the Respondents:

Phillips Fox

ORDERS

A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 27 April 2005 and handed down on 19 May 2005.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1483 of 2005

SZGMI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”/“the Tribunal”) signed on 27 April 2005 and handed down on 19 May 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political persecution. Relevant background information is adequately summarised in the Minister’s written submissions filed on 24 February 2006. I adopt with minor amendments the following information.
The applicant is a citizen of Nepal. He arrived in Australia on 14 October 2004.
On 11 November 2004 he lodged an application for a protection visa, relying principally upon a fear of persecution because of his membership of the revolutionary Maoist political movement in Nepal.
On 25 November 2004 that application was refused by a delegate of the Minister and on 13 December 2004 the applicant applied for review by the RRT. The RRT hearing occurred on 4 April 2005. The applicant attended and gave evidence. He was assisted by an interpreter and represented by an advisor.
By decision dated 27 April 2005 the RRT affirmed the delegate’s decision.
The application to this Court was filed on 7 June 2005. It has not been amended. It contains six grounds, which are stated in generic form, without particularisation.
The application is supported by a document containing submissions dated 7 June 2005 addressed to the Federal Magistrates Court. That document appears identical to the written submission made to the RRT after the hearing and before the RRT made its decision. It makes a series of complaints about matters raised by the RRT during the hearing. The letter, and the matters contained in it, were all addressed by the RRT in its reasons. They are all factual matters, going to the applicant’s credit.

The protection visa application

The Protection Visa Application (“PVA”) was filed on 11 November 2004. It was accompanied by a letter from the applicant’s advisor, Mr V Gudur of LCJ Migration Services (court book, page 1). The advisor’s letter sets out the applicant’s claims.
The claims made in that document can be summarised as follows:
a)The applicant was born to a poor family in the state of Chitawan.
b)The applicant has been an active member of the Maoist party of Nepal since he was 13 years old.
c)He underwent political studies and developed a political career.
d)As a member of the party he participated in educational programmes.
e)At the age of 15 he became a member of the school committee of the All Nepal National Independent Student Union (Revolutionary) (“Union”). He attended meetings. Activists organised demonstrations.
f)The applicant was arrested and held for three days without charge. He was interrogated, tortured and beaten. He still bears a scar on his right leg. He was released with a warning.
g)In 1991 he went to Katmandu to continue his studies. He met with leaders of the Union.
h)In July 1995 he joined the Tilgenga Eye Centre, an NGO linked to the Fred Hollows Foundation, as a production supervisor.
i)After a state of emergency was declared things got worse. The government cracked down on dissidents. His friend Mr Shiva Dutta Poundel was murdered. Another associate of the applicant, a journalist, was tortured in gaol and killed.
j)The applicant helped the movement by transporting and delivering things. He made two deliveries: in April and August 2004.
k)In November 2004 he was selected to go to Australia for training with the Fred Hollows Foundation. Whilst here he applied for protection.
l)The applicant also has problems because he married out of his caste. The applicant did not suggest a fear of persecution related to this matter, other than consequent opprobrium and associated criticism by his family.
m)The applicant fears that if he returns to Nepal he will be detained, beaten and tortured by government forces, and senior members of the Tilgenga Eye Centre, because of his involvement in anti-government activities.

The application to the RRT

The application to the RRT was accompanied by another letter from the applicant’s advisor (court book, page 71). In that document the advisor referred to and adopted the application made to the delegate (at court book, page 72). That document reiterated that the applicant feared persecution “on account of his political opinion as an active member of the Maoists”. The document otherwise focuses on the reasoning of the delegate.
On 21 January 2005 the applicant’s advisor provided further documents to the RRT including a statutory declaration by the applicant (court book, page 106). The statutory declaration expands upon the claims made in the PVA.
On 23 February 2005 the applicant’s advisor provided to the RRT three letters faxed from Nepal (court book, page 115): a letter from the headmaster of the applicant’s school, a request for a donation made by the Communist Party of Nepal to the applicant’s father, and a letter from the Nepalese army warning the applicant’s father not to donate to the Communist party. Later the applicant provided another letter from the president of the “Forum for the Protection of Human Rights” of Nepal, which also mentioned the applicant’s arrest and detention.
On 13 April 2005, after the RRT hearing, the applicant’s advisor provided an additional submission, addressing matters raised during the hearing (court book, page 158). That letter is very similar (or identical) to the submission accompanying the application to this Court. It raises several concerns about the views expressed by the RRT during the hearing. Those issues, and the manner in which they were treated by the RRT, are dealt with below.

The RRT decision

The RRT did not believe the applicant. It did not accept that the applicant was a member or supporter of the Maoist party (court book, page 193.6). It rejected his evidence of having been arrested by police (court book, page 192.7). It found that the Nepalese authorities did not consider him a Maoist (court book, page 194.8).
In relation to the implicit claim arising from his marriage out of caste, the RRT found that the only difficulty anticipated by the applicant was that his family had problems coming to terms with the marriage, and that that fell short of persecution.
Accordingly it rejected his entitlement to protection.
The RRT decision (court book, page 171) makes clear that the RRT received and considered the advisor’s letter of 13 April 2005. Thus:
a)The first issue raised in the letter is under the heading “Police harassment and arbitrary detention”. Under that heading the advisor sought to address the RRT’s concern that the applicant had answered in the negative the question in the PVA asking for detail of any “convictions charges or investigations”, notwithstanding his claim to have been arrested and detained for three days. The advisor asserts that, contrary to the view expressed by the RRT during the hearing, there is no contradiction between his claimed arrest, and the answer to that question. In its reasons, the RRT referred to this matter at court book, page 175, and concluded that it would “draw no negative inferences at all from the applicant’s claims about his relationship with the Nepalese police or authorities having [been] omitted from [the PVA]”.
b)The second issue raised in the letter is under the heading “The letters of support provided to the Tribunal”. The letters referred to are those provided to corroborate the applicant’s claims to have been detained by police. The advisor asserts that no negative conclusion as to their authenticity should be drawn because of the similarity of the letters, and their failure to mention the precise date of the applicant’s arrest. The first of these matters is addressed by the RRT at court book, page 182.5. The RRT ultimately decided that it would place no weight on the letters, because they had been solicited by the applicant, the school letter was vague as to the date of the applicant’s arrest, the principal who signed the letter was not the principal at the time of the arrest, and according to the applicant the school would not have a record of the event: court book, page 192. Clearly the contentions made in the advisor’s letter were considered and rejected.
c)The third matter raised in the advisor’s letter is under the heading “On the alleged discrepancy between being a Maoist sympathizer and working for the Fred Hollows Foundation”. The RRT acknowledges this submission at court book, page 187.1. That passage makes clear that the RRT at least was aware of the advisor’s contentions on this aspect, but that the RRT treated the applicant’s employment with the Fred Hollows Foundation as being yet another aspect of the applicant’s background and activities inconsistent with his asserted political affiliation.
d)The fourth matter raised in the letter is the advisor’s response to the RRT’s suggestion during the hearing that to flee Nepal was inconsistent with a genuine commitment to the aims of a revolutionary body. The RRT noted the advisor’s contentions on this aspect, but indicated that it considered the applicant’s actions as relevant to the issue of his commitment to the cause of armed struggle since 1996: court book, page 187/8.
e)The fifth matter raised in the letter addressed the applicant’s concession in the hearing that he had misled the Fred Hollows Foundation in order to escape from Nepal. The RRT accepted that the point made by the advisor was “generally reasonable”.
f)The sixth point in the advisor’s letter was directed to the RRT’s suggestion that the applicant’s claim that his house had been ransacked was a “new claim”. The RRT specifically refers to these contentions at court book, page 184.5. It does not appear that this aspect played any obvious part in the RRT’s adverse findings against the applicant.
g)Finally, the advisor addressed the RRT’s concerns over the name at the end of the letter from the school principal. On this aspect the RRT accepted the advisor’s explanation: court book, page 181-2.

The judicial review application

The applicant relies upon his judicial review application filed on 7 June 2005. That sets out six grounds of review in general terms. There is an attempt to particularise the grounds in an annexed submission document.
The applicant also filed written submissions on 6 September 2005 which cover the same ground. Relevantly, the judicial review application asserts that procedures that were required by law to be observed in connection with the making of the RRT decision were not observed.

Evidence

The only evidence I have before me is the court book filed on 27 June 2005. The applicant sought to rely on a statutory declaration and a large bundle of annexed documents which had been received by the registry but not filed. I ruled that those documents were not admissible as evidence because they were not relevant. The statutory declaration and a bundle of attached country information documents only went to the issue of the applicant’s protection visa claims. The bundle included a number of documents that were already included in the court book. Because the statutory declaration and annexed bundle had not been filed and I had not received it as evidence, I returned it to the applicant at the trial on 1 March 2006.

Submissions

The applicant’s oral and written submissions were not particularly enlightening. Essentially, the applicant is aggrieved that he was not believed by the RRT. He believes that his claims should have been accepted. Mr Braham, for the Minister, essentially rested upon his written submissions and dealt shortly in oral submissions with the complaints that had been raised by the applicant in his oral submissions. No mention was made of any issue arising in relation to s.424A of the Migration Act 1958 (Cth), which I found surprising as the Minister was represented by two counsel and an instructing solicitor in a matter which, in all other respects, appeared not to require counsel at all. When I raised the issue of compliance by the RRT of s.424A with Mr Braham he agreed that there was an issue but submitted that the information contained in the applicant’s original protection visa application had been adopted by the applicant for the purposes of the review application. However, Mr Braham had not read the decision of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2, decided on 24 February 2006. I allowed two weeks for written submissions to be prepared on behalf of the Minister and indicated that I would seek to arrange pro bono representation for the applicant so that written submissions could also be prepared on his behalf.
In his written submissions filed on 6 March 2006, Mr Braham relevantly submits as follows:
a)It is submitted that the RRT did not breach s.424A. That submission is made on three principal bases:
i)None of the information in the PVA was information that formed “the reason, or part of the reason, for affirming the decision” under review, and accordingly s. 424A was not enlivened;
ii)Alternatively, the information contained in the PVA was, for the purposes of s.424A(3)(b), information “that the applicant gave for the purpose of the application” because the PVA itself was ‘republished’ in written submissions provided by the applicant’s advisor to the RRT;
iii)Furthermore, the information in the PVA was information “that the applicant gave for the purpose of the application” because all of the relevant information in the PVA is also contained in the statutory declaration and written submissions provided to the RRT by the applicant’s advisor.

No part of the PVA formed the reason or part of the reason for the decision

b)The RRT’s reasons are contained in the section of its decision headed “Findings and Reasons” from court book, page 191. The three pages of the court book from 191 to 193 contained the essence of the reasons. No part of that passage refers to the PVA, or to information that could only have been derived from the PVA. No inference was drawn, adverse to the applicant, from a failure to mention a matter in the PVA or as a result of inconsistencies between the material in his PVA and his evidence or other the material provided to the RRT. Although earlier in the reasons the RRT raised possible discrepancies related to the PVA application, those matters were resolved either neutrally or in the applicant’s favour, and accordingly are not part of the reason for the RRT’s decision adverse to the applicant: see, for example, at court book, pages 175.3 to 175.6.

Republication

c)In SZEEU Moore J said the following at [20]:
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… If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) be comprehended by s.424A(3)(b) [emphasis retained]

(See to similar effect per Weinberg J at [157]).
d)The decision of the Full Court in SZEEU has resolved the issue of how to treat an adoption by the applicant in the course of a hearing of the contents of his protection visa application in the context of s.424A(3)(b). Prior to that decision there had been differing views as to the proper approach to the resolution of that question: see per Jacobson J in NAZY v Minister for Immigration [2005] FCA 744 and Madgwick J in SZFKLv Minister for Immigration [2005] FCA 931.
e)However, nothing in the decision of SZEEU cast any doubt on the correctness of decisions which have held that where the applicant advances “in chief” the content of his PVA, either in the RRT hearing or in written submissions to the RRT, that s.424A(3)(b) is satisfied: see per Gray J in M55v Minister for Immigration [2005] FCA 131 at [25], where his Honour said:
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).

f)To similar effect, adopting those statements, see per Gyles J in SZDMJv Minister for Immigration [2005] FCA 1034 at [6], Lindgren J in SZBNKv Minister for Immigration [2005] FCA 998 at [23]-[27], and per Merkel J in VUAVv Minister for Immigration [2005] FCA 1271 at [10]-[13].
g)It remains the position, therefore, that where an applicant invites the RRT to have regard to the PVA, he provides the information contained in it for the purposes of s.424A(3)(b). Such an invitation may be implicit by making a submission ‘in chief’ which assumes knowledge of the PVA.
h)The evidence in the present matter is of just such an implicit invitation.
i)On 8 December 2004 the applicant’s migration agent sent a letter to the Registrar of the RRT (court book, page 71). At court book, page 72 that letter contains a heading “Claims under the 1951 United National Convention Relating To The Status Of Refugees As Amended by the 1967 Protocol”. Immediately after that heading the advisor states the following:

The applicant made claims under the Refugees Convention that centred around his fear of persecution in Nepal as a result of his active membership with the Communist Party of Nepal “the Maoists”. [The applicant] set out his claims chronologically in a submission tendered to DIMIA at the date of his application”. [counsel’s emphasis retained]

j)By letter dated 13 December 2004 the RRT notified the applicant that his application had been received and suggested (court book, page 101) that he “immediately send us any documents, information or other evidence you want the Tribunal to consider”. On 24 December the applicant’s advisor was provided with an invitation to the applicant to attend the hearing (court book, page 102). On 21 January 2005 the applicant’s advisor provided a further submission to the RRT. The opening paragraph of that document (court book, page 105) includes the following:
Please find enclosed the following in support of the above review application:
1. statutory declaration made by the applicant, in which he provides further particulars of his claims
2.…

The statutory declaration essentially provides further details and explanations to the claims made to the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) at the time of application on 11/11/2004.

k)Enclosed with that letter is a statutory declaration of the applicant
l)By making these statements in submissions to the RRT the applicant’s advisor clearly assumed that the RRT would have regard to the material in the PVA. The material provided to the RRT was intended to be supplementary to the information in the PVA. The PVA was specifically referred to in both letters as containing the applicant’s claims. Accordingly it was pursuant to an implicit invitation by the applicant that the RRT had regard to the PVA, and information therein was accordingly provided by the applicant for the purpose of the application to the RRT.
m)The references in the written submissions to the RRT satisfy the requirements of s.424A(3)(b) with the effect that there can be no breach of s.424A(1) in the RRT failing to provide written notice of the PVA to the applicant.

The information in the PVA was repeated to the RRT

n)Section 424A deals with “information”, and not documents per se. It follows, therefore, that if information from the PVA forms part of the reasons for a decision adverse to the applicant, then s. 424A(3)(b) will nonetheless be attracted if the same information was provided, albeit in a different form, by the applicant for the purpose of the application to the RRT
o)In substance the entirety of the matters contained in the information attached to the PVA (court book, pages 1-6) was repeated in the statutory declaration provided to the RRT at court book, pages 106 to 108.
p)At court book, pages 176 to 179, under the heading “Claims and Evidence” the RRT reviewed the claims made in the PVA. The information referred to in that passage is all contained in submissions later made to the RRT. Thus the material concerning the applicant’s initial interest in the Maoists from the age of 13 is contained in paragraph 2 of the statutory declaration (court book, page 106). His membership of the All Nepal Independent Student Union and the events of 1989 are contained in paragraph 3 of the statutory declaration. His activities from 1991 in Katmandu (referred to at court book, page 178.8) are contained in the statutory declaration at paragraph 4. His political activities are referred to in almost identical terms to the PVA in paragraph 5 of the statutory declaration. His claims in the PVA relating to the arrest of his friends and his activities in transporting “things”, referred to by the RRT in court book, page 179 are contained in paragraphs 8 and 9 of the statutory declaration at court book, page 107.
q)Accordingly, it can be seen that all of the information referred to by the RRT in the reasons as having derived from the PVA was provided in substance by the applicant, in a separate document, for the purpose of the application to the RRT.
r)Accordingly, all the material in the reasons is covered by the exclusion in s.424A(3)(b).

Pursuant to a referral certificate issued on 1 March 2006 under Part 12 of the Federal Magistrates Court Rules 2001 (Cth), Mr Nair agreed to provide written submissions on the s.424A issue. The Court appreciates the willingness of counsel to assist parties’ pro bono publico. Mr Nair prepared written submissions on behalf of the applicant which were filed on 22 May 2006. Relevantly, those submissions are:
Republication
a)The first respondent submits that the applicant implicitly invited the RRT to have regard to the PVA by making a submission that assumed knowledge of the PVA. Accordingly the applicant provided the information contained in the PVA. The first respondent relies in this regard on:-
i)The letter sent on 8 December 2004 by the applicant’s advisor to the RRT which, inter-alia, stated “[the applicant] set out his claims chronologically in a submission tendered to DIMIA …”.
ii)The letter (enclosing a statutory declaration by the applicant on 19 January 2005) by the applicant’s advisor to the RRT on 21 January 2005 which stated, inter-alia, “the statutory declaration essentially provides further details and explanations to the claims made to the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) at the time of the application on 11/11/2004”.
b)It is clear from SZEEU v Minister for Immigration [2006] FCAFC 2 (24 February 2006) that the issue of compliance with s.424A is a question of statutory construction without intrusion of considerations of procedural fairness.
c)The applicant told the RRT (court book, page 175) at the RRT hearing “that the claims in his original protection visa application (to DIMIA) were true complete and correct”. In SZEEU Moore J, at [20], said the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information) being comprehended by s.424A(3)(b). It was different if the RRT treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review – in such circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. (counsel’s emphasis retained)
d)Adopting a statement, accepting it as one’s own, will not suffice to convert the relevant knowledge or information into information provided to the RRT. A mere reference to claims cannot be construed as thereby converting the relevant information into information provided to the RRT. Support for this latter proposition is found in SZEEU. (counsel’s emphasis retained)
e)The first respondent has submitted (at paragraph 7) that “nothing in the decision of SZEEU cast any doubts on the correctness of decisions which have held that where the applicant advances “in chief” the contents of his PVA … that s.424A(3)(b) is satisfied. The first respondent relies on M55 v Minister [2005] FCA 131 at [25] where Gray J said:
“… 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 details 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. … This was sufficient for the appellant to have been taken to give the information contained in the copy passport for the purpose of the application for review, and thereby for that information to fall within s.424A(3)(b).”
f)There were five matters in SZEEU. Moore J at [47] has detailed relevant circumstances in the matter of SZEEZ where his Honour said:
In relation to the manner of exit information, counsel for the Minister submitted that the information had been given by the appellant in the application for review, because he told the Tribunal that the information in the original application for a protection visa was correct and had accepted the answers to questions 47 and 48 after they had been read out to him by the Tribunal. Moreover, the appellant’s migration agent specifically drew the Tribunal’s attention to the appellant’s protection visa application in a written submission to the Tribunal. (counsel’s emphasis retained)
g)Moore J dismissed the appeal, finding for the Minister. However in regard to the above point – similar to that in M55 – his Honour did not find for the Minister on the basis that by specifically drawing the RRT’s attention to the appellant’s protection visa application the information was therefore caught by the exception in s.424A(3)(b); his Honour did so (at [48]) on another basis.
h)Weinberg J at [169] disagreed with his Honour Moore J’s view on the exit information. Weinberg J at [170] allowed the appeal; it is clear from his Honour’s reasons that his Honour did not accept that by specifically drawing the RRT’s attention to the appellant’s protection visa application the information was caught by the exception in s.424A(3)(b).
i)Allsop J also disagreed with Moore J and allowed the appeal. It is clear from his Honour’s reasons at [237] to [242] that Allsop J also did not accept that by specifically drawing the RRT’s attention to the appellant’s protection visa application the information was caught by the exception in s.424A(3)(b). (counsel’s emphasis retained)
j)It appears that the view of the majority judges (and by inference, the view also of Moore J.) that specifically drawing the RRT’s attention to the appellant’s protection visa application did not put the information under the exception in s.424A(3)(b) arises from the meaning of information.
k)As their Honours have explained (see for example, Allsop J at [220] to [225]) what is relevantly “information” is to be determined in the context in which the RRT uses the information. Therefore the fact of inconsistency itself may be the relevant information. For example at [220] Allsop J says “… the fact of inconsistency of the prior statement was a part, even though a subsidiary and minor part, of the reason for the decision”. At [225] his Honour says: “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”.
l)This approach to construction is consistent with the approach of the Full Court of Federal Court in Minister for Immigration v Al Shamry (2001) 110 FCR 27 where Ryan and Conti JJ (at [17] and following) said given that s.424A(3)(b) operated to relieve the RRT from affirmative obligations imposed by s.424A for the benefit of an applicant, a construction should be adopted which preserved, rather than diminished that benefit. They added that a purposive approach to s.424A would lead to the same conclusion. Merkel J, the third member of the Full Court (at [40] and [41]) agreed with the reasoning of the majority but went further. His Honour considered that s.424A enacted a basic principle of the common law rules of natural justice. His Honour said that it was understandable that the legislature would require that, in fairness, any adverse information provided by the applicant "prior to review" (to use his Honour’s language), the significance of which the applicant might be unaware, should be disclosed to the applicant to enable him or her to respond to it. It was the beneficial purpose underlying s.424A of affording an applicant with the opportunity to respond to the gravamen of any adverse information upon which the RRT proposed to act that justified a narrow rather than a broad view being taken of the exception.
m)It should also be noted that there is a preliminary difficulty with the first respondent’s submission. It is highly moot what relevant information, if any, is captured by the reference to claims.
PVA information NOT repeated to the RRT and this information was material (emphasis added)
n)Comparison between the information in the PVA and the information in the statutory declaration unearths PVA information that enlivens s.424A. This information was not provided by the applicant to the RRT for the purpose of the review. The information was information that formed the reason, or part of the reason, for affirming the decision under review. Such information includes:-
i)First, the PVA refers in detail (paragraphs 3 to 6) to the applicant’s secondary school history including, inter-alia, to the applicant meeting, at the age of 13, a friend who was a “member of the sister Organisation of the Nepal Communist Party”; the applicant at “15 years of age” becoming a member of the school committee of the All Nepal National Independent Student (Revolutionary)”; the applicant attending “meetings at school” and being assigned to visit the people in various villages”; the applicant being arrested. (emphasis added)
ii)The statutory declaration (paragraphs 3 to 4) refers to the applicant’s secondary school history in more general terms, in significantly less detail.
iii)Specific details such as the applicant at 15 became a member of the school committee of the All Nepal National Independent Student (Revolutionary), that he attended meetings at his secondary school and that later he was assigned to visit the people in various villages where he held public education were absent from the statutory declaration; this was information the RRT acquired through the PVA.
iv)The appendage “Revolutionary” was information only in the PVA; it was absent from the statutory declaration.
v)In its Findings and Reasons (court book, page 193) the RRT referred to this history, which in turn referred to the RRT discussion at court book, pages 177 to 178. The RRT, inter-alia, referred to the “All Nepal Independent Student Union (Revolutionary) and stated that “(a)s discussed, the RRT could find no evidence of Maoist-affiliated bodies having secondary school committees …”.   The discussion referred to is at court book, pages 177 to 178.
vi)The specific information in the PVA was material. It was the reason or part of the reason for the RRT’s disbelief of the applicant and for the RRT affirming the decision under review.
vii)Secondly, the PVA states at paragraph 10 that the applicant “was involved in ... land redistribution from the wealthy landowners to the middleclass and the poor”. (emphasis added)
viii)The statutory declaration, on the other hand, makes no mention of land redistribution to the middle class.
ix)Information about land distribution to the middle class was information acquired through the PVA.
x)In its Findings and Reasons, the RRT said (court book, page 193) that “(i)n considering the Applicant’s claim about being an active Maoist supporter, the Tribunal looked at the whole body of his evidence as well as looking at each specific claim on its own. The Applicant’s evidence about … his vague unimpressive claims about Maoist operations and projects, such as “land redistribution”…. cumulatively lead the Tribunal to the conclusion that the Applicant is not a genuine Maoist or even a Maoist supporter”.
xi)The RRT (court book, page 179) stated that the (PVA) information that the applicant was involved in land redistribution from the wealthy landowners to the middleclass and the poor “struck the Tribunal as an odd claim, because the Maoists do not claim to serve the interests of the middle classes in Nepal; rather, the Maoists reportedly regard the middle classes as class enemies.”
xii)The applicant’s claim that he was a Maoist supporter was a core claim. The PVA information was, at the very least, a reason for the RRT’s rejection of this core claim, for the RRT affirming the decision under review.
xiii)Thirdly, the PVA states at paragraph 13 that “(b)eing in the position of a supervisor (the applicant was selected to attend a seminar in Adelaide …”. (emphasis added)
xiv)The statutory declaration does not mention such a selection.
xv)Information about such an opportunity to leave Nepal for Australia was information the RRT acquired through the PVA.
xvi)The RRT stated (court book, page 176) that the “Fred Hollows Foundation, as part of its own programme, selected the Applicant to attend a seminar it was conducting in Adelaide in October 2004”.   The RRT emphasised the word “selected”.
xvii)The RRT (court book, page 179) considered the PVA information in conjunction with the information that the applicant’s passport was issued seven days before his Australian visa. The RRT stated : “He evidently did not obtain a passport before being selected to come to the seminar in Adelaide. It thus appears from this evidence that the prompt for him to leave Nepal first came from his employer. The Applicant provided DIMIA with no evidence of any earlier attempts to leave Nepal “off his bat” as it were. He did not identify any particular circumstances arising around the time of his departure from Nepal that prompted him to leave, or arising after his arrival in Australia that prompted him to remain.”
xviii)The PVA information in regard to “selection” was information that played a part in the disbelief of the applicant. This information was the reason or a reason for the decision of the RRT.
xix)Fourthly, the court book (see Index and page 13) shows that the certified copy of the applicant’s passport (court book, page 32) was provided as part of the original protection visa application to DIMIA. (emphasis added)
xx)The RRT acquired the information that the passport was issued seven days before the Australian visa through this original protection visa application.
xxi)As has already been submitted in the preceding section, the RRT used this information in a manner that played a part in the disbelief of the applicant. This information was the reason or a reason for the decision of the RRT.
xxii)Fifthly, the PVA states at paragraph 14 (court book, page 4) that the applicant’s more senior colleague (in the Fred Hollows foundation) who had returned from Australia to Nepal had threatened to “disclose the true identity of the applicant to all concerned” (emphasis added).
xxiii)The PVA also states (court book, page 5) that the applicant fears he “will be intimidated by members of Tilgenga Eye Centre for reasons of not returning back to Nepal after his training in Australia” and that he fears that he would be harmed or mistreated by “senior members of the Tilgenga Eye Centre not sympathetic to the Maoists”. The PVA also states that the applicant thinks that the authorities in Nepal will not protect him because “he also fears the senior members of the Tilgenga Eye Centre as many of them are in collaboration with the authorities and now that the true identity of the applicant was revealed they may also be affected by the reprisals of the authorities”.
xxiv)The statutory declaration does not mention this threat or these fears.
xxv)Information about this threat to expose the applicant as a Maoist supporter, and associated fears, was acquired by the RRT through the PVA.
xxvi)The RRT said (court book, page 179) that the “Applicant claimed he did not reveal his “political identity” to colleagues”. It can fairly be inferred that the RRT raised this issue. In any event the applicant’s evidence to the RRT was inconsistent with the information the RRT had gained through the PVA.
xxvii)Knowledge of inconsistency is relevantly information. In SZEEU, Moore J said at [20]:
In my opinion, the flight information was "information" for the purposes of s 424A(1). What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal.
xxviii)Earlier in SZEEU at [18] Moore J quoted with approval the views of Finn and Stone JJ in VAF v Minister for Immigration (2004) 206 ALR 471 ("VAF"):
… (ii) the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers 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]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; ….
xxix)The RRT said (court book, page 193) that “… the Tribunal looked at the whole body of his evidence as well as looking at each specific claim on its own”. Further (court book, page 24) the RRT refers to “the Applicant’s lack of credibility” – clearly a reference to the RRT’s view of a lack of credibility in general.   It can fairly be inferred that the inconsistency of this PVA information with information given by the applicant to the RRT adversely affected the RRT’s view of the applicant’s credibility. The PVA information regarding disclosure of the applicant “true identity” was the reason or part of the reason for the RRT’s decision.
xxx)Sixthly, the RRT (court book, page 175) noted that “(t)he Applicant claimed in his protection visa application that he speaks and writes English only a little”. (emphasis added)
xxxi)The RRT continued: “However, from 1995 to October 2004, he worked in Kathmandu for the Australian-based Fred Hollows Foundation first as a production technician and then, from 2001, as a production supervisor. He was thus promoted in the company. Such a job would probably involve some contact with visiting managers. It is assumed by the Tribunal that the Applicant has a working proficiency in English.”
xxxii)The RRT stated (court book, page 180) that information provided by the applicant to the RRT “includes a statutory declaration in which the Applicant claimed an ability to speak English at an “intermediate” level. He claimed he originally gave an outline of his claims in English to his advisor without help from an interpreter and that his statutory declaration was a more detailed deposition of facts in view of his composing it in Nepalese and with access to a translator”. (also see court book, page 106 , paragraph 1)
xxxiii)The information that the applicant speaks and writes English only a little was provided through the protection visa application to DIMIA.   This information was inconsistent with information provided by the applicant to the RRT for the purpose of the review.
xxxiv)It can fairly be inferred that the information regarding little knowledge played a part in the RRT’s disbelief of the applicant. The information was the reason or a reason for the RRT’s decision.
Summary
o)Though the PVA and other protection visa application documents provided to DIMIA information (knowledge) of relevant facts or circumstances was communicated to, or received by, the RRT. The RRT also acquired information about relevant inconsistencies and incompatibilities.
p)This information played a part in the disbelief of the applicant. The information was the reason or a reason for the decision of the RRT. Indeed, it is fair to say that this information played a central and integral role in the reasoning process of the RRT as is clearly displayed both in the RRT’s “Findings and Reasons”, and indeed, in the whole of the Decision Record.. The issue of credit pervades the whole of the reasons of the RRT.
q)The issue of the Court’s discretion to grant relief, as held by the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162 was summarised in SZEEU (per Weinberg J at [108] to [111]:-
108 Al Shamry would hardly have assumed the importance that it now seems to have done had it not been for the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. Though Al Shamry had narrowed the scope of the exception in s 424A(3)(b), and correspondingly broadened the scope of ss 424A(1) and 424A(2), it maintained a significant degree of flexibility in applying those provisions. The Full Court made it clear that any failure on the part of the Tribunal to comply strictly with the requirements of s 424A would not, of itself, give rise to reviewable error. Rather, each case would have to be considered in the light of its own particular facts.
109 The judgment in Al Shamry proceeded on the basis that the grant of relief by the court was discretionary, and that it would be a proper exercise of that discretion to refuse relief if the Tribunal’s findings of fact led inevitably to the conclusion that the application for review was destined to fail. In other words, it was a critical aspect of the reasoning in Al Shamry that the court should consider whether the procedural breach involved in failing to comply with s 424A had led to some actual unfairness.
110 It seems clear that the judgment of the High Court in SAAP has radically altered the position. By a three to two majority (McHugh, Kirby and Hayne JJ, Gleeson CJ and Gummow J dissenting), it was held that s 424A required the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review. Having regard to the mandatory language of the section, and irrespective of the merits of the case, nothing less than written notice of such information specified would suffice. Any breach of the requirements of the section (as for example by giving oral notice rather than written notice) would constitute jurisdictional error. Accordingly, non-compliance would render the Tribunal’s decision invalid.
111 It is important to note that the majority went on to reject the contention that, in the absence of any actual unfairness being demonstrated, the court should refuse to grant relief in the exercise of its discretion. According to the majority, in the absence of factors such as delay, waiver, acquiescence or unclean hands (which their Honours acknowledged might be relevant to the exercise of judicial discretion), a breach of s 424A, whether it led to actual unfairness or not, would normally result in the Tribunal’s decision being set aside.(emphasis added by counsel and retained)
r)Section 424A was enlivened by information acquired by the RRT. This information was the reason or part of the reason for the RRT affirming the decision under review.
s)The RRT did not, pursuant to s.424A give the applicant particulars of this information, or ensure, as far as was reasonably practicable, that the applicant understood why this information was relevant to the review, or invite the applicant to comment on this information. The RRT did not give the applicant the information and invitation by one of the methods specified in s.441A.
t)The applicant is entitled to relief and to costs (SAAP v Minister for Immigration (2005) 215 ALR 162; SZEEU v Minister for Immigration [2006] FCAFC 2 (24 February 2006).

Reasoning

I am indebted to counsel for their detailed and helpful submissions concerning the operation and application in this case of s.424A of the Migration Act. That is, in my view, the only issue to be resolved in this case. The applicant is plainly gravely concerned that his claims of having a well-founded fear of persecution in Nepal because of his association with the Maoists was not believed and is convinced that the RRT made the wrong decision. His application and his pre-trial submissions essentially address the merits of the RRT decision. The applicant may be right in disputing the merits of the decision but that is beyond the scope of this proceeding.
I accept from the submissions by counsel for the Minister that the decision of the Full Federal Court in SZEEU leaves open the possibility that an applicant may adopt in chief his protection visa claims for the purposes of his application to the RRT and that the RRT is thereby relieved by s.424A(3)(b) of the Migration Act from disclosing information derived from those claims so adopted which may form a reason for affirming the decision under review. I see no difficulty with this approach where protection visa claims are adopted expressly in chief for the purposes of a review application. The difficulty arises where the protection visa claims are said to have been adopted implicitly in other material presented by an applicant to the RRT in support of a review application. If the additional material submitted by an applicant to the RRT simply assumes knowledge of the protection visa claims and moves on from them it is, in my view, stretching the principle relied on by the Minister too far to say that the protection visa claims are thereby adopted in chief. If it is not clear that in the additional material the applicant continues to rely upon the protection visa claims in the same terms as they were put, then it cannot, in my view, be said that the protection visa claims have been implicitly adopted.
The applicant, with the assistance of his migration agent, provided extensive written material to the RRT in support of his review application. First, the migration agent provided a submission dated 8 December 2004 which referred very briefly to the applicant’s protection visa claims and then made extensive submissions critical of the decision of the delegate. The advisor also provided a substantial amount of country information for consideration by the RRT. Secondly, the agent provided further information on 21 January 2005 in the form of statutory declaration by the applicant. It is clear from the advisor’s letter[1] that the applicant intended that his statutory declaration would be considered in support of his review application. It is also clear that the applicant intended that his statutory declaration would augment, clarify, (and possibly also vary) the protection visa claims that he had made to the Minister’s Department. The statutory declaration thereby assumes knowledge of the earlier protection visa claims but does not necessarily adopt them in the same terms as they were put. Neither is it clear that by making a statutory declaration the applicant intended that those claims would be substituted for the claims that he had made in support of his protection visa application. In my view, the statutory declaration served the purpose of augmenting, clarifying and, if necessary, correcting the PVA claims.
[1] court book, page 105
The migration agent provided further evidence in support of the review application by letter dated 23 February 2005[2]. It appears that further evidence was provided later, including a copy of the applicant’s passport received at the hearing conducted by the RRT[3].
[2] court book, page 115
[3] reproduced at pages 140-147 of the court book
A post hearing submission was made by the agent by letter dated 13 April 2005[4]. That submission addresses issues arising at the hearing.
[4] court book, page 158
It is clear from page 175 of the court book that the RRT, in making its decision, had regard to the applicant’s original protection visa application, as well as the material submitted in support of the review application. The presiding member refers in detail to the applicant’s original protection visa claims on pages 175-179 of the court book. On pages 180-181 of the court book the presiding member deals with the material submitted on behalf of the applicant in support of his review application and then details what occurred at the hearing, as well as discussing the material provided by or on behalf of the applicant. It is clear from that discussion that the presiding member had credibility concerns about the applicant’s claims and that, amongst those concerns, were concerns about discrepancies in the material submitted at various times by or on behalf of the applicant.
The presiding member’s findings and reasons in respect of his consideration of the applicant’s claim of persecution as a Maoist supporter commences on page 192 of the court book. It is plain that the applicant failed because he was not believed. It is also plain that the presiding member was influenced by a number of factors including the content of the protection visa claims, the content of the material submitted in support of the review application and what the applicant had said at the hearing conducted at the RRT. The presiding member was influenced by inconsistency between the applicant’s claims and independent country information. He was also influenced by inconsistency within the material submitted at various times both orally and in writing by the applicant. On page 193 of the court book the presiding member said:
The Applicant gave conflicting evidence as to whether or not he ever actually joined the Maoists. In writing he explained why he could not join them. In oral evidence, he suggested he had joined them but lacked, for the present, any evidence of his membership. He went on to say that his membership was in a trade union. This claim was unsupported and lacking in detail. The Applicant never provided sufficient detailed evidence of ever having been a member of any organisation that was affiliated with the CPN(M). The Tribunal does not accept that the Applicant was ever a member of the CPN(M).
In considering the Applicant’s claim about being an active Maoist supporter, the Tribunal looked at the whole body of his evidence as well as looking at each specific claim on its own. The Applicant’s evidence about his caste profile, his professional background, his priorities being to work to support his family, his evidence about putting his job before joining the Maoists, his vague, unimpressive claims about Maoists operations and projects, such as “and redistribution” and parcel drops, his explanation for leaving the struggle, and the lack of evidence of his having turned his mind to ways of continuing his support for the insurgency, cumulatively lead the Tribunal to the conclusion that the Applicant is not a genuine Maoist or even a Maoist supporter.
I accept, from Mr Nair’s detailed and helpful submissions, that in reaching his conclusions, the presiding member was influenced by the form and content of the applicant’s protection visa claims. I also accept, both from Mr Nair’s submissions as to specific matters which appear to have influenced the presiding member, and my general analysis of the purpose to which the material submitted to the RRT on behalf of the applicant in support of his review application was put, that information forming part of the reasons for affirming the decision under review came from the applicant’s protection visa claims which were not specifically adopted in chief by the applicant in his review application and cannot be said to have been implicitly adopted in chief in support of that review application.
It follows, and I find, that the RRT was not relieved, by s.424A(3)(b) of the Migration Act from disclosing to the applicant in writing the adverse information relied upon by the presiding member. As noted by Mr Nair, the failure to comply with s.424A(1) constitutes a jurisdictional error entitling the applicant to relief in the form of constitutional writs and costs.
I will order that the applicant obtain relief in the form of the writs of certiorari and mandamus.
I will hear the parties as to the quantum of costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 30 June 2006