SZHIU v Minister for Immigration - [2007] FMCA 886

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHIU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 886

MIGRATION – RRT decision – failure to invite comment on information – information that a specific claim was omitted from the protection visa application – whether given to Tribunal in a general admission of ‘new claims’ – jurisdictional error found – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3), 424A(3)(b), 474, 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627

Applicant:

SZHIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2964 of 2005

Judgment of:

Smith FM

Hearing date:

30 May 2007

Delivered at:

Sydney

Delivered on:

30 May 2007

REPRESENTATION

Counsel for the Applicant:

Dr J Azzi

Solicitors for the Applicant:

AAT Legal; NSW Legal Exchange

Counsel for the First Respondent:

Mr M P Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 22 September 2005 in matter N05/51061.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 29 March 2005.
The first respondent pay the applicant’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2964 of 2005

SZHIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 14 October 2005, which has been set down for a final hearing on whether the applicant is entitled to relief under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal)” dated 2 September 2005 and handed down on 22 September 2005. The Tribunal affirmed a decision of a delegate made on 29 March 2005, refusing to grant a protection visa to the applicant.
Section 483A has been repealed, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth), s.8). The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under s.474, so that I do not have power to set aside the Tribunal’s decision and remit the matter unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to address the merits of the applicant’s refugee claims.
In the present case, the applicant is represented by counsel who relied upon an amended application filed on 21 May 2007. This challenges the validity of the Tribunal’s decision, by arguing that there were separate breaches of the Tribunal’s obligations under s.424A(1) shown by two aspects of the Tribunal’s reasoning. It also contains a ground addressing the Tribunal’s reasoning in relation to some corroborative letters. As I shall explain, I need only to address one of the s.424A(1) arguments, since in my opinion it makes out jurisdictional error affecting the Tribunal’s decision. It is therefore necessary for me only to set out the background relevant to that argument.
The applicant arrived in Australia on a 14 days visitor’s visa on 4 February 2005. He lodged an application for a protection visa on 14 February 2005. It did not reveal any assistance given in its completion, and presented the following explanation for the applicant’s departure from Bangladesh and seeking protection in Australia:
40Why did you leave that country?
I am a member of Ahmedia (Khadiani) group. I had lot of probelem in my country as relegious purpose. I didn’t stay in my home & other place with pecely & safely. Other part of our religious they want to kill me as for member of Ahmedia lot of time. I went several countries for my life safety. Not only me any Ahamedia member in Bangladesh not safe in this time specially the running govement party. The Jamayet part with govement. They torcher us. Anything can be happended if I stay in Bangladesh. Now they are looking me in all arround of country for kill. I don’t want to take risk to stay. & my family always scare for me, thats way immediaty I leave country.
His other statements in the visa application form also presented only a claim to fear persecution based on religious affiliation with the Ahmadi or Ahmedia sect of Islam, and made no claims based on any involvement in political activities in Bangladesh.
The delegate refused the application, on the grounds that the applicant’s claims were vague and unsubstantiated, and that his travel out of Bangladesh suggested that he was not of interest to the authorities in Bangladesh.
On appeal, the applicant employed a solicitor, Mr Haque, who on 7 July 2005 submitted what was said to be an “amended statement” by the applicant. In this statement the applicant claimed to have joined a local branch of the Awami League in 1995, and to have worked for that party in elections in 1996 and subsequently. In particular, he claimed to have worked for a “renowned leader in Bangladesh who was brutally killed by a group of the BNP activists in broad daylight”. The applicant claimed to have worked in the election campaign for that person, who became a member of Parliament. He claimed to have been elected as a joint secretary of a local branch of the Awami League in 1997, and to have become an executive member of the district branch of the Awami League in 1999. He claimed that as a result of his political activities his house was ransacked in 2002, and that on a number of occasions, and in particular in September 2003, he was “beaten by a group of BNP cadres”. His statement concluded:
15.On 7 May 2004 I attended a conference along with our MP [name]. While our MP was going to sit on the stage a number of culprits shoot him through brash fire and he lost the life.
16.After the death of [the MP] we raised a number of demonstrations against the government and the government failed to protect lives and liberty of the common people.
17.In course of time a Parliamentary election was staged on 1 August 2004 after the sad demise of the [MP] I participated in the election. In this election our candidate was [name] who was candidate from the Awami League and our main opponent in this election was professor [name], a leader of the BNP who also contested previously. Due to our hard labour we won the election by defeating the BNP candidate.
18.After this election I became a target of the BNP activist and they tried on numerous occasions to harm me. They also filed a false case against me to doom my political career.
19.After the above election I could not sleep at the night and every night I faced nightmare. Finally I decided to leave the country and I managed a visa to come to Australia. If I return home now I will be persecuted.
The applicant’s solicitor also tendered a bundle of documents to corroborate claims of political activity, but it is unnecessary for me to refer to their contents.
The applicant was invited to attend a hearing on 20 July 2005. In the early hours of that day, Mr Haque sent by facsimile to the Tribunal a further submission. This commenced with what was described as a chronology:
1.The applicant is a Bangladeshi national. He is a member of the minority Ahamedi community.
2.The applicant filed a protection visa application on 14 February 2005 and his application was finalized by the DIMIA on 29 March 2005.
3.Afterwards, the applicant filed a review to the Tribunal.
4.During his stay in Bangladesh he was involved with the Awami League politics. In his application with the Department of Immigration and Multicultural and Indigenous Affairs he failed to disclose this matter, as he has no legal representation.
5.The applicant completed his secondary school certificate 1993.
6.In 1995 the applicant joined the Awami League as an executive member of the [Town] Thana Awami League. In 1997 the applicant was elected as the joint secretary of the [Town] Thana Awami League.
7.In 1999 the applicant was elected as the executive member of the [District] district Awami League.
8.On 27 February 2002 at 9 pm his house was ransacked by a group of the BNP and Jamat‑e‑Islami activists and his younger brother was insulted by the cadres of the BNP and Jamat‑e‑Islami.
9.On 27 September 2003 he was beaten mercilessly by a group of the BNP cadres and left him on the street.
It seems that this submission did not reach the attention of the member constituting the Tribunal until after the hearing. The hearing was attended by the applicant with Mr Haque, and also with a solicitor from the firm of Parish Patience. A transcript of the hearing is before me.
At the commencement of the hearing, the following exchange occurred between the Tribunal and the new solicitor, who is referred to in the transcript as Mr Rice:
TM – Tribunal Member
Mr R – Mr Rice
TM:Mr Rice were you wanting to say …
Mr R: I have just received instructions this morning, quite literally, at 5 to 9. The first time I looked at the papers was this morning and whilst we were waiting to start the hearing, I went through the application very quickly with the applicant to clarify the very question you’ve just asked. And it should be noted that he prepared the application without an agent and I don’t think with an interpreter. He advised me that in fact there were areas on the forms, both the 866 (b) and (c) which were not correctly completed and it’s that that I wanted to draw to your attention. I haven’t had an opportunity obviously to do it in written form because I’ve literally just received those instructions as we were waiting outside. There are several ways in which we could do this. I could, we could have an adjournment for a couple of days for me to put that to you in written format, or I can put to you now what he told me whilst we were waiting outside and then he can confirm.
TM:Or we can proceed with the hearing, I’ll receive the submission from you after the event.
Mr R:Yes.
TM:We have scheduled this hearing and I am ready to proceed on the basis of his claims and I’d be happy to receive any further submission after, after that.
Mr R:Yes well except that the issue of credibility is so fundamental as you noted, that I would hate the credibility to be affected as a consequence of inaccuracies on the application form. Now I appreciate you’ve just asked him through the interpreter to confirm that everything there is correct, and he’s responded to that, but I’m putting to you that in fact he told me that there are different factual stories, for example, he …
TM:Well let me proceed in the hearing as I’ve scheduled it and as I’ve prepared for it based on the claims he’s made and I’ll happily receive from you afterwards any further clarification of those issues, but he’ll have an opportunity to now to be able to answer what I wish to explore with him.
The Tribunal then questioned the applicant concerning his travel abroad, his career in Bangladesh, and his association with the Ahmadi. It is unnecessary for me to refer to the evidence he gave on those topics. The Tribunal then put to the applicant the fact that his July 2005 statement contained “an entirely new set of claims”:
TM – Tribunal Member
A – Applicant
¢ – inaudible
TM:On 7 July this year you made an entirely new set of claims based on your membership with the Awami league. Why didn’t you mention these claims in your protection visa application?
A:The first time I came to Australia in fact my visa was for a very short period of time and I didn’t know much of the people and when I talk with some of the people from my country then they asked me what I will be doing about going back to my country and then I told them I was associated with Armadi and they told me to lodge a claim by stating that you are belong to Ahmedi community but I could not, I don’t know much about that how to lodge an application what to mention, what to write I don’t have an idea about that.
TM:But you do speak English and the question itself asked you very clearly whether you have anything to say that could or about why you think you are a refugee in answering the question below you should tell us if you think any events referred to are because of and then it lists the convention reasons including specifically your political opinion. So I just don’t understand if you had political claims, why you wouldn’t have included those as well.
A:When I was at the stage of submitting the application I didn’t know actually don’t know what to write, what to claim, but later on I was realised that I had missed out something. I went to Mr Sirajul Haque who was my advisor and I told him that I have another claim, on this that one is political claim and told the whole history of my association with the politics then he told me there is it still some scope to put some submission about that then he write down all the claims what I have stated and then he gave that submission. He write down whatever I have to say about my ¢ with politics.
The Tribunal then questioned the applicant concerning his involvement in the Awami League. In the course of this questioning, the applicant gave further information concerning what he said had happened at the political conference where the MP had been shot in April 2004. This suggested that the applicant had been officially involved in organising the conference, and had also taken the MP to hospital.
At the end of the hearing the Tribunal had a further exchange with the applicant’s new solicitor:
TM – Tribunal Member
Mr R – Mr Rice
AD – Advisor
TM:Now I said at the beginning of the hearing that I have invited your advisor to make any remarks and comments and I have already agreed to accept a submission from him, but so first are there any particular questions that you would like me to put to the applicant.
Mr R:No.
TM:So are there anything you would like to.
Mr R:Yes, the issues which I was going to raise and which I will send in marginally go into although, some of them were in fact touched during the course of that questioning but I will send in a statement as I said from him clarifying some of the factual errors on the form. I will, with your permission, also send in a submission which deals with generalised country information rather than taking your time.
TM:No we have the time.
AD:And it seems to me probably the issues primarily in this case would centre around credibility obviously, so I will address that. …
The Tribunal then gave the applicant’s adviser 14 days until 3 August 2005 to lodge further submissions and material. In fact, no submissions or material were ever lodged, before the Tribunal handed down its decision two months after the hearing.
The s.424A argument, which I propose to uphold, concerns part of the Tribunal’s reasoning under the heading “Findings and Reasons”, where it assessed the particular element in the applicant’s claims concerning his involvement in the April 2004 conference and events surrounding the death of the MP.
Earlier in its “Findings and Reasons”, the Tribunal made general reference to an “apparently significant change in the basis of which he was seeking a protection visa”, and “new claims” raised in the July 2005 submission given to the Tribunal. It is unclear whether those references played a part in its reasons for first making a finding that he would not “be subjected to serious harm amounting to persecution”, based on what the Tribunal thought was limited involvement in the Ahmadi community. However, I do not need to decide whether these references show a failure to comply with s.424A(1).
It is also not necessary for me to consider this question in relation to another part of its reasons where it referred to the “new” political claims made in the July 2005 submission. In this reasoning, the Tribunal concluded that it “has not been able to satisfy itself that the Applicant was anything other than an ordinary member of the Awami League who held two very insubstantial junior positions in a small branch office of 40 members”. It further concluded:
It follows that [the Tribunal] does not accept his claims that he was a “one of the front line leaders” of the Awami League and that “I became very well known in the political area of [District]” and finds that the Applicant has embellished his claims to enhance his application for a protection visa and is not a credible witness. It follows that the Tribunal also does not accept the claims that flow from this such as because of his political activities and opinion he has been beaten up by PBP [sic: BNP] cadres; on a number of occasions and on 27 February 2002 his house was ransacked; and he has been targeted by the BNP and could not sleep at night.
However, an explicit reference to the novelty of one of the applicant’s claims was made in the Tribunal’s subsequent discussion of the applicant’s claims about events in 2004. The Tribunal’s entire reasoning about this was:
In his amended statement received by the Tribunal on 7 July 2005, the Applicant claimed after the 1996 he “worked with [the MP] (sometimes spelt as [alternative spelling]) to develop the nation and he again worked for [the MP] as the Awami League candidate during the 2001 election against [another opposition candidate] who was a leader of the BNP. He claims on 27 February 2002 his house was ransacked by a group of BNP and Jamat‑e‑Islami activists and his younger brother was insulted; on a number of occasions he was beaten by BNP cadres including on 27 September 2003 when he was beaten so severely that he was admitted to a private clinic (but, as has been noted before, he provides no medical evidence either obtained in Bangladesh or Australia to support this) and on 7 May 2004 he attended a conference with [the MP] who was shot by a “number of culprits”. At the hearing the Applicant unprompted elaborated on this latter claim and claimed that on 7 April 2004 (the Tribunal is uncertain from his claims whether this incident occurred in May or April but accepts that this was a simple mistake by the Applicant) the Awami League leader [the MP] was attending a meeting at a school along with [a colleague] and himself, when 17 – 18 “young boys” got out of a micro van and shot [the MP] in a “fire brush” and wounded two other people. The Applicant claimed that he helped take [the MP] to the hospital but the police refused to admit him for an hour and, when he was admitted, he died 3 or 4 minutes latter. He claims the police did not release the body for 7 or 8 days, and other “fire brushes” occurred at the same time. However, not withstanding these claims, the Tribunal is satisfied that if he had been official [sic] involved in this conference and had a direct and significant role in it other than being one of the people in the Audience, or was involved in taking of [the MP] to the hospital, then the Applicant would have mentioned this involvement in his protection visa application or application for review, but accepts that the [sic] did not do so. Further, he provides no evidence to support these claims and even the letter from [the MP’s son] of 30 May 2005, while stating that the Applicant was a great admirer of his late father ([the MP]), does not say that the Applicant was present when his father was killed or helped take him to hospital: something the Tribunal is satisfied he would have mentioned in appreciation in such a letter of reference). Given all the above, and while accepting that the Applicant did attend this conference in April/May 2004, it does not accept that he was anything other than one of many participants at the conference or that because he happened to be there, there is a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason including from Jamayet Islami and BNP supporters on this basis. (emphasis added)

It is clear in this reasoning, and was not contested by the Minister, that the emphasised sentence provided one part of the Tribunal’s reasoning on this element of the applicant’s claims. The sentence presents reasoning which used adversely information as to the absence of a specific claim in the protection visa application given to the Department. In my opinion, the reasoning in this sentence shows the use of “information” as to the contents of the visa statement, which is covered by authorities concerning “omissions” which are required to be the subject of a s.424A(1) invitation. These authorities were recently addressed and applied in NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174, in particular by Weinberg J at [32]‑[41] and Allsop J at [74]. The Tribunal’s reasoning in the sentence amounts to “a positive use of information” as to what was not in the protection visa application, and drew from that information a “positive assertion that is detrimental to the applicant’s case” (compare Weinberg J at [38] and [39]).
It is also, in my opinion, clear that the use of this information provided “a part of the reason” for the Tribunal rejecting this element in the applicant’s political claims, and also ultimately for affirming the delegate’s decision. The information therefore came within s.424A(1) unless it was excluded by reason of the exclusions in s.424A(3).
The Minister does not contest that no s.424A(1) notice was served. If one was required, then it is not contested that the Tribunal’s failure to invite comments, after explaining the possible relevance of the information, would amount to jurisdictional error.
The Minister’s contention is that the exclusion in s.424A(3)(b) applied to the information that the applicant’s claims of an official involvement in the April 2004 conference was not mentioned in his protection visa application, because this was “information … that the applicant gave for the purpose of the application”.
The Minister’s argument did not point to any specific admission or statement to the Tribunal by the applicant or one of his agents that there was this particular omission in the protection visa application. However, it was argued that the applicant’s responses at the hearing which I have extracted above, when the novelty of the “entirely new set of claims” made in July 2005 was put to him, amounted to the giving of the information that none of his political claims had previously been mentioned in the protection visa application. It was argued that the applicant’s general admission of a “new set of claims” occurred in a context where his advisers manifestly were aware that the novelty of all the applicant’s political claims was a matter which would concern the Tribunal in relation to his credibility, since this was apparent from the obvious circumstances and was also expressly admitted by the solicitor appearing at the hearing. The general admission of new claims should, therefore, be taken to encompass the giving of information by the applicant as to the existence of the particular omission used adversely by the Tribunal.
The authorities on when an applicant’s responses to questioning amounts to the “giving” of information to the Tribunal have recently been discussed by Young J in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195, with whom Giles and Stone JJ agreed. As Young J concluded, after reviewing previous authorities, careful consideration is needed where the Minister seeks to rely on general affirmations or admissions. I also take his Honour’s discussion to allow the procedural fairness policy objectives of s.424A(1) to be taken into account, when deciding whether what happened amounted to the giving of particular information falling within the exclusion of s.424A(3)(b). Young J said:
59These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.
60In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the Tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing. The Tribunal’s questions arose naturally from the appellant’s application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies. (emphasis added)
As this passage suggests, the authorities have drawn a distinction between an applicant’s general and non‑specific affirmation of all information given to the Department in or with a protection visa application, and “specific” pieces of factual information taken by the Tribunal from that material which is put to the applicant, and which he or she expressly or implicitly adopts or affirms its truth (see, for example, Kenny J in SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 at [35]).
In the present case, there are two reasons why I do not accept the submission of the Minister that the applicant “gave” the Tribunal the information that he had not included in his protection visa application a claim that he had an “official” involvement in the April 2004 conference and a “direct and significant role in it”.
The first, is that the terms of the applicant’s response and the sequence of the Tribunal’s questioning at the hearing, show that the applicant’s implicit admission as to “an entirely new set of claims based on your membership with the Awami League”, addressed only the making of new claims in the terms in which they had been made in the July 2005 written statement. This did not present the picture of involvement in the 2004 events involving the murder of the MP which the applicant gave subsequently to the Tribunal at the hearing, and which was the specific matter upon which the Tribunal drew an adverse inference from its omission from the visa application. The applicant’s admission of “an entirely new set of claims” did not extend to the claim which was rejected by the Tribunal upon the basis of recent invention. This was the “unprompted elaboration” in the evidence given by the applicant later at the hearing.
The second reason why s.424A(3)(b) is inapplicable, is that I do not consider that the applicant’s general admission of having presented an “entirely new set of claims” in July 2005 amounts to the giving of “information” as to particular omissions from his protection visa application in terms covered by s.424A(1) and excluded by s.424A(3)(b). Section 424A(1) raises obligations to give notice of “particulars of any information”, and it is information of that nature which is then excluded by s.424A(3) from the obligations of notification and explanation of relevance. The section shows a concern that “particulars” should be identified and an opportunity to respond to them given.
In that statutory context, I do not consider a sweeping admission that a new set of claims has been presented to the Tribunal, which was not presented to the Department, should be taken to carry the “information” that a particularly significant element in the new claims was not given to the Department, so as to absolve the Tribunal from serving a notice under s.424A(1) in respect of that particular information. In my opinion, the generality of the applicant’s admission of “new claims” did not encompass the information as to a particular omission which the Tribunal has relied upon as its reason for affirming the delegate’s decision in this case. The specific information relied upon by the Tribunal was not “given” to the Tribunal by the applicant.
For the above reasons, I am satisfied that jurisdictional error has been established in this case, and that the applicant is entitled to relief by way of writs of certiorari and mandamus. No discretionary reason has been raised by the Minister for refusing that relief.

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 June 2007