SZHWF v Minister for Immigration
[2008] FMCA 1136
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHWF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1136 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to disclose to the applicant information that was part of the reason for affirming the decision under review in the manner required by s.424A of the Migration Act. |
| Migration Act 1958 (Cth), s.424A |
| Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 NAZY v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 87 ALD 357 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 156 FCR 205 SZECF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 89 ALD 242 SZJJD & Ors v Minister for Immigration & Anor [2008] FMCA 3 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 |
| Applicant: | SZHWF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3709 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 April 2008 |
| Date for last submission: | 13 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal made 22 November 2005 in Tribunal case file number N05/51877.
That a writ in the nature 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 made on 15 July 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3709 of 2005
| SZHWF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal handed down on 22 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in January 2005 and applied for a protection visa. He claimed he was a Sikh from the Indian state of Punjab who had become a member of the Akali Dal (Mann) Party as a student. He claimed that he took part in activities such as party rallies and that during such rallies he had been arrested several times, gaoled and beaten by the police.
The applicant stated that when the related Akali Dal (Badal) party formed government in Punjab his party was able to do its work without hindrance, but that after the Congress Party came to power in 2002 members of the Akali Dal party were harassed and experienced problems and the police captured and beat him on two occasions. He claimed:
There after I left Punjab and went to Rajasthan to find a job and work. The police even started bothering me there and caught and beat me again. The police started to bother me again and again.
He claimed that if he returned to India the Indian government and police would harass and beat him and that his life was at risk in India.
The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. A transcript of that hearing is in evidence before the Court.
Tribunal decision
In its reasons for decision the Tribunal recorded that at the hearing the applicant claimed that he had moved to Rajasthan in 2000 (not 2002 as claimed in the protection visa application) and that in 2001 several police officers from Punjab had come to Rajasthan, arrested him and taken him back to Punjab where he was held at the local police station for about five days. He claimed that he was released without being charged after approaches by the local community. He also claimed that he was detained during visits to Punjab in 2002 and 2003.
The Tribunal was satisfied to proceed on the basis that the applicant was a Sikh as claimed. It accepted that he was a member of the Akali Dal (Mann) Party from 1991 to 2000 and that he held a local district office in the party from 1995 to 1997.
The Tribunal noted the inconsistencies between the applicant’s claims in his protection visa application and at the hearing. It accepted the applicant’s evidence at the hearing that in 2000 he left the party and moved to Rajasthan where he lived and worked until he left India in January 2005, making some visits back to his home village in Punjab some 600 kilometres away.
The Tribunal referred to the fact that the Akali Dal (Badal) Party came to power in Punjab in 1997 and was replaced by the Congress Party after February 2002 elections. It continued:
A number of difficulties are apparent in relation to the Applicant’s claim at hearing that in 2001 in Rajasthan he was arrested by a Punjabi police inspector and several other Punjabi police officers, brought back to his village in Punjab, detained and mistreated in the local police station and then after several days released without charge. The significant claim to have been arrested interstate and brought back to Punjab was not mentioned in the earlier statement; it was said to have occurred at a time when Punjab was governed by the "to some extent related" Akali Dal (Badal), which the Applicant had said did not take hard measures against his party. It is difficult to accept at face value an assertion that a party of five or six police officers from the Applicant’s local area would travel 600 kilometres to another state to return him forcibly to Punjab, apparently without any warrant or other paperwork and no formal charges, being released after only a few days and permitted to return to Rajasthan. Nor does it appear consistent with independent country information as to the circumstances in which Punjab police might try to recover a wanted person from another state: hard-core militants wanted in relation to past involvement with armed groups …
The Tribunal was not satisfied that the applicant would have been arrested or targeted in Rajasthan (and “certainly not to the extent of being arrested by Punjabi police”) unless he had been identified “as a hard-core militant involved in violence” in which case the Tribunal was “not satisfied that he would have been able to depart India in January 2005 travelling on a passport in his own name”.
The Tribunal also referred to country information indicating that events in Punjab had “moved on from the volatile situation of the 1980s and early 1990s” and that persons “are not systematically mistreated or targeted by the authorities as members or supporters of the Akali Dal (Mann) party, which is not illegal or banned”. While the Tribunal recognised that this did not preclude local difficulties from political opponents at a village level or even individual police officers at a local level (perhaps for personal reasons), it had regard to July 2002 information as to the absence of “recent” arrests or incidents of harassment of Sikhs solely on account of their political views.
The Tribunal had regard to the fact that post-2000 the incidents complained of by the applicant all involved the local police from his village in Punjab and that it did not appear that he was charged or held for more than a few days, which the Tribunal considered would have been the case if he had been of serious concern or wanted for something specific. It also found it significant that the applicant had not raised any specific incident in Rajasthan (other than his claimed arrest there by the Punjabi police officers) at the Tribunal hearing.
The Tribunal found that having “considered the Applicant’s evidence and relevant country information” it did not accept that he was arrested and brought back to Punjab from Rajasthan in 2001 by Punjabi police officers. It was satisfied that he had been able to live and work in Rajasthan over several years without persecution and that his difficulties occurred only in his home district in Punjab.
The Tribunal accepted that the applicant was “detained, questioned and mistreated on several occasions by local Punjabi police in his village” but not that this was part of any "systematic approach by the Punjab authorities at state or government level or that it is condoned by them". The Tribunal was not satisfied on the evidence before it that the applicant’s brother (who has been killed on his motorcycle in 2002) had been targeted or murdered by police as claimed, rather than simply being “the victim of a road accident.”
The Tribunal considered whether it was reasonably open to the applicant to avoid local difficulties in his home district in Punjab (or “perceived” difficulties within Punjab generally) by relocation. It was satisfied having regard to its earlier findings that this was the case. It also gave weight to independent country information in relation to freedom of movement and the situation of Sikhs in India. The Tribunal was satisfied that the applicant’s difficulties were local and that he only faced threats or harm by local police around his village in Punjab. Having rejected the applicant’s claim that he was pursued and arrested by Punjabi police in Rajasthan, it had regard to the size, population and diversity of India, as well as to the fact that the applicant spoke, read and wrote Punjabi and Hindi (the official language of India), the fact that he had already lived and worked away from Punjab in Rajasthan, that he had been in stable employment with one company there since 2002, that he was chosen to accompany the company manager on a trip to Australia and that he had provided one address in Rajasthan from December 2002 onwards. The Tribunal was satisfied that it was reasonable to expect the applicant to seek to avoid any local difficulties in Punjab by relocating within India.
The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol and affirmed the decision not to grant him a protection visa.
This application
The applicant sought judicial review in this Court. He relies on an amended application filed on 10 April 2008. The only ground in that application is as follows:
The RRT committed jurisdictional error of law by failing to disclose, as required by s 424A(1), information that was part of the reason for affirming the decision under review, in the manner required by s 424A(2).
The particulars to this ground are as follows:
(a) The fact that the Applicant’s claim to have been arrested in Rajasthan and brought back to the Punjab was not mentioned in the statement accompanying his initial application.
(b) That the Applicant speaks, reads and writes Punjabi and Hindi.
(c) That the Applicant has had stable employment with one company since 2002.
(d) That the Applicant has provided one address in Swai Mandhopur in Rajasthan from December 2002 onwards.
Omission from protection visa application
Particular (a) is that s.424A of the Migration Act 1958 (Cth) was breached because the fact that the applicant's claim to have been arrested in Rajasthan and brought back to Punjab was not mentioned in the statement accompanying his initial application was not put to him in writing for comment.
Section 424A(1) is as follows:
Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
It was said by counsel for the applicant that the Tribunal did not accept the claim about the 2001 arrest in Rajasthan for a number of reasons, including the fact that “The significant claim to have been arrested interstate and brought back to Punjab was not mentioned in the earlier statement”. This finding was said to be of significance to the Tribunal decision as the issue of relocation might have been treated differently if the Tribunal had accepted that the Punjabi police had visited another state to detain the applicant.
It was submitted that the Tribunal clearly relied on the fact of the omission of this claim from the protection visa application and that the Tribunal did not simply have regard to an inconsistency between the claims in the protection visa application and those made to the Tribunal. Such an omission was said to constitute "knowledge of relevant facts or circumstances" and hence "information" within the meaning of s.424A(1) in the sense considered by Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.
In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALR 1190 a majority of the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) had (at [18]) referred with approval to what was stated by Finn and Stone JJ in VAF as follows:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information” …
“does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
It was submitted by the applicant that the concept of “disbelief arising from inconsistencies” in evidence referred to assessment by the Tribunal of the difference between what was said on one occasion and what was said on another. This was said to be apparent from the distinction drawn by their Honours in SZBYR between the Tribunal’s reasoning process and relevant passages in the statutory declaration accompanying the appellants’ protection visa application from which inconsistencies were later said to arise (at [15] – [17]). It was submitted that in this instance what was in issue was something which did not occur, in the sense of something omitted from the protection visa application and the Tribunal's knowledge of that omission, so that SZBYR could be distinguished.
The applicant also contended that the Tribunal’s reference to the fact that the claim was not mentioned in the protection visa application statement should be characterised as the absence of a claim and not as the absence of evidence of the nature considered in SZBYR (at [18]). It was suggested that the majority of the High Court had in mind an absence of evidence to support a specific claim rather than the absence of a claim when they stated in SZBYR at [18]:
However broadly “information” be defined, its meaning [in s.424A] is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
The applicant submitted that as “information” was knowledge of relevant facts and circumstances communicated to or received by the Tribunal, an omission of a claim must be one of those facts and circumstances of which the Tribunal had knowledge and that it therefore constituted information.
In SZBYR the majority of the High Court had been of the view (at [17]) that it was difficult to see why the relevant passages in the appellants’ statutory declaration would themselves be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" as they did not did not contain in their terms a “rejection, denial or undermining” of the appellant's claims. However it was said that in this case the absence of a claim in the original statement accompanying the applicant's protection visa application was one of the Tribunal's reasons for affirming the decision under review.
Reference was made to the observations of Allsop J in SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 and SZECF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 89 ALD 242. In particular, in SZECF Allsop J found (at [30]) that a contention that there was “no information here because the [protection visa application] statement (which is information) lacked the aspect now being adduced [claimed before the Tribunal] would be to fail to recognise that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information” (emphasis in original). As the Full Court of the Federal Court pointed out in Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285 at [51], in SZECF the knowledge of the Tribunal “of the content of the earlier statement, including the limits of its content, was instrumental in it reaching a conclusion that the oral evidence of the applicant was false and the documents he was propounding were fraudulent”.
It was said in this case that the knowledge of the Tribunal of the content of the applicant’s statement accompanying his protection visa application and the limits of that content was “instrumental” in it rejecting the claim in question.
Counsel for the first respondent contended that the applicant's failure to refer to the Rajasthan incident in the statement accompanying his protection visa application was not of itself "information" within s.424A(1).
Reliance was placed on the fact that in endorsing the synthesis of prior authorities by Finn and Stone JJ in VAF the majority of the High Court in SZBYR had stated that information did not extend to “the existence of doubts, inconsistencies or the absence of evidence” (SZBYR at [18]). The majority in SZBYR also referred (in footnote 14) to the authorities cited in VAF including WAGP. On this basis it was submitted that what was said in WAGP could be said to be a correct statement of principle with respect to how s.424A(1) was to apply where there had been an omission in the applicant's evidence and the Tribunal had attributed significance to that omission in its reasons for decision.
In WAGP the Full Court of the Federal Court stated (at [26]):
In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at 218 [20] "information" is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information".
Similarly in this case counsel for the first respondent contended that there was no more than an observation by the Tribunal concerning a deficiency in the material before it. It was submitted that the authority of VAF at [24] referred to with approval in SZBYR, was based on the reasoning in WAGP at [26] – [29], as distinct from the contrary view expressed in other Federal Court authority such as NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 156 FCR 205 and SZECF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 89 ALD 242.
The first respondent contended that an absence of information, whether it was an omission in material before the delegate or an omission before the Tribunal, was a deficiency in or absence of evidence in the sense considered in WAGP and SZBYR and that where significance was attached to such an omission this amounted to an appraisal of the omission which did not constitute information.
The first respondent also submitted that the fact that the applicant had not claimed in his protection visa application to have been arrested in Rajasthan was not part of the reason for the Tribunal’s decision. It was submitted that the Tribunal did not make anything of that circumstance in making its decision, but merely made a observation as to the state of the material before it. It was submitted that the fact of such an observation did not mean that it was (and in the relevant sense in s.424A(1) "would be") part of the reason for affirming the decision under review (see VAF at [33] and SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [216]).
The reason for the Tribunal’s rejection of the claim was said to be the Tribunal’s appraisal of its implausibility. In particular the Tribunal was of the view that it was not plausible that five or six members of the Punjabi police force would travel 600 kilometres to Rajasthan to apprehend and arrest the applicant. It considered that would only be plausible if he was a hardcore militant, in which case he would not have been able to leave India on a passport in his own name. It was said that it was this appraisal of implausibility based on the applicant’s evidence and country information that formed the reason for rejecting the applicant's claim to have been pursued and arrested in Rajasthan.
In any event, it was pointed out that SZBYR provided support for the proposition that the Court is not required to unbundle the reasoning of the Tribunal in order to find whether a reference to material formed part of the reason for the decision. In SZBYR at [17] the majority of the High Court made it clear that “The statutory criterion does not … turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons””, finding instead that the reason for affirming the decision the under review was a matter that depended upon the criteria for the making of that decision in the first place. On this basis it could be said that the reason the Tribunal found that the applicant's fears were not well founded was in part because his claim that he was pursued in Rajasthan was not genuine or credible and in part because his fear of persecution was not well founded throughout India (see SZBYR at [22]).
Reasoning
Section 424A(1) applies only to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated in SZBYR at [15] that the section “does not require notice to be given of every matter the Tribunal might think relevant to the decision under review.” As their Honours stated (at [17]):
… the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Nonetheless it is clear that in SZBYR the High Court left open the possibility that s.424A(1) could apply to “information” in a protection visa application as, without more, such information could not be said to have been given to the Tribunal for the purposes of the application for review in s.424A(3)(b) (see SZBYR at [16] and Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27). There is no suggestion that the material in issue in particular (a) to ground one was within the s.424A(3)(b) exception.
While it is well established that the concept of “information” in s.424A(1) does not extend to “identified gaps, defects or lack of detail or specificity in evidence” (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ) a distinction can be drawn between a gap or deficiency in evidence such as was considered in WAGP at [26] and an omission which is treated as implicit probative support for an assertion detrimental to the applicant’s case.
I am not persuaded by the first respondent’s contention that the effect of the High Court’s adoption of the synthesis of established propositions in VAF is that the approach taken in WAGP is applicable to all omissions from an applicant’s evidence. In particular, as I suggested in SZJJD & Orsv Minister for Immigration & Anor [2008] FMCA 3 at [76], the High Court did not impliedly overrule the authority in NBKS in relation to omissions of the nature considered in that case.
In NBKS Allsop J, with whom Weinberg J agreed, was of the view that, notwithstanding that “information” in s.424A(1) does not extend to “identified gaps, defects or lack of detail or specificity in evidence” (VAF at [24]) the absence of comment in a psychologist’s report that was part of the evidence before the Tribunal on how the appellant was likely to react on return to Iran “was not merely taken as a gap, but was implicitly probative of [the psychologist’s] view that there was no such danger” that the appellant would behave in a confrontational way on return to Iran (at [74]). In those circumstance the Full Court of the Federal Court found that there was “information” within s.424A(1) which Allsop J described as the fact that the psychologist “had reported and did not state that the appellant might react in a way to express his views against the regime” (at [75]). This was relevant to the review because it tended against the proposition that the appellant might behave in that way.
Weinberg J indicated that where a Tribunal used omissions in a way that went beyond “mere omissions” this “amounted to a positive use of information, as opposed to an observation made in relation to a failure to give information or make a claim” (NBKS at [38] and see SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs[2006] FCA 435 and SZCNP v Minister for Immigration & Multicultural Affairs[2006] FCA 1140). As his Honour stated, this would arise if the Tribunal “treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant’s case” (at [39]). In such cases s.424A may be applicable.
In contrast, WAGP of 2002 dealt with what might be described as mere “gaps” or “defects” in the evidence of the applicant (see WAGP of 2002 at [26]).
Such an approach to the characterisation of omissions is consistent with that taken recently by the Full Court of the Federal Court in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119. Buchanan J drew a distinction between a gap or defect in the evidence given by an applicant (as discussed in WAGP of 2002 and VAF at [24](iii)) and an “omission” treated as providing “implicit support for a positive assertion that is detrimental to an applicant’s case” as discussed in NBKS at [39] per Weinberg J (and see Allsop J at [74]). His Honour expressed the view in SZKCQ at [88] that “if an ‘omission’ has evidentiary weight and may be regarded as a fact which is probative it may, depending on the circumstances of the case, be ‘information’ within the meaning of s 424A” and has now confirmed the view that the approach in NBKS is not impliedly overruled by SZBYR (at [88] – [93]).
However in determining whether there is “information” within s.424A or a mere gap or deficiency in evidence “each case must depend on its own particular circumstances” as Weinberg J stated in NBKS (at [39]). Given that the application of s.424A(1) is to be determined “in advance – and independently – of the Tribunal's particular reasoning on the facts of the case” (SZBYR at [17]) it is necessary to determine whether the omission in issue “would be” implicit probative support for a positive assertion detrimental to the applicant’s case or whether it can be characterised as a mere gap or deficiency in evidence (SZJJD v Minister for Immigration & Anor [2008] FMCA 3 at [73]). As Heerey J stated in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 (at [27]) it is necessary to “assess the "information" in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal.” Moreover, “information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant’s claims” (at [29] and see also SZBYR at [21]).
In the particular circumstances of this case it has not been established that the fact that the applicant’s claim that he was arrested interstate and brought back to Punjab in 2001 was not mentioned in the protection visa application was “information” that the Tribunal considered would be the reason or part of the reason for affirming the decision under review within s.424A(1).
This is not a case in which the applicant said “so much and no more” in his protection visa application, thus conveying an inference of completeness (as considered in SZHFC) or where an omission had a pervasive influence on the reason or what would be the reason for the decision (cf SZHPP v Minister for Immigration & Anor [2007] FMCA 1031 per Smith FM).
The applicant made a clear initial claim that after the Congress Party came to power in 2002 the police started to “rain havoc” on members of the Akali Dal, that he was arrested and beaten on two occasions and that after this he went to Rajasthan where he also had trouble with the police who “caught and beat” him again and started to bother him “again and again”. He did not omit any claim to have been arrested from the protection visa application, such that an inference of completeness might be drawn. Rather, at the subsequent Tribunal hearing he made a different, and in that sense inconsistent, claim that he was arrested in Rajasthan in 2001 by Punjabi police and taken back to his village in Punjab where he was detained and mistreated, being released after several days without charge. The Tribunal’s analysis of such inconsistency in not “information” within s.424A(1).
It has not been established that an omission in the protection visa application was or would be treated as providing implicit support for a positive assertion detrimental to the applicant’s case. While the Tribunal observed that the “significant claim” to have been arrested interstate and brought back to Punjab had not been mentioned in the protection visa application statement, this was, as in WAGP, an observation that the applicant did not refer to this claim in his protection visa application. Insofar as it is relevant to have regard to the Tribunal reasons for decision, it did not make any finding of recent invention or an adverse credibility finding based on the initial absence of such a claim. Rather, it set out the claims in the protection visa application and described the different claims at the hearing. It is notable that it referred to the fact that the applicant’s claims were set out in the original statement which he “again endorsed at hearing, and from which he did not subsequently resile (although some apparent inconsistencies emerged in his evidence)”. It discussed his evidence at the hearing and then referred to a number of difficulties with the claims about arrest in Rajasthan in 2001, including that it was not mentioned in the earlier statement. This remark, read in context, was an observation in relation to the applicant’s failure to make such a claim in the protection visa application. The Tribunal also referred to the fact that this incident was said to have occurred at a time when Punjab was governed by the related Akali Dal (Badal) which the applicant had said did not take hard measures against his party. It then addressed its implausibility and inconsistency with country information, which was the basis for its rejection of the claim. As the first respondent contended, the fact that the applicant had not made this claim in his protection visa application was not (and would not) be part of the reason for affirming the decision under review.
In this instance the fact that a claim made at the hearing was not mentioned in a protection visa application is not such as to constitute “the existence of evidentiary material” providing implicit support for a positive assertion detrimental to the applicant’s case in the manner considered in NBKS. Whether analysed as an inconsistency between written and oral claims or as an omission, the absence of such a claim from the protection visa application is not properly characterised as “information” of dispositive relevance, such as to constitute information that would be part of the reason for affirming the decision under review.
Hence no obligation arose under s.424A(1) in relation to the material in the first particular to the ground in the amended application.
Section 424A and relocation issues
Particulars (b) to (d) of the ground in the amended application are to the effect that each of the following items of information had to be put to the applicant in writing under s.424A:
(b)that the applicant speaks, reads and writes Punjabi and Hindi;
(c)that the applicant had had stable employment with one company since 2002; and
(d)that the applicant provided one address in a named place in Rajasthan from December 2002 onwards.
Each of these items of information was said to be contained in the applicant’s protection visa application. However it was contended for the applicant that such information was not given to the Tribunal for the purposes of review within the s.424A(3)(b) exception.
Section 424A(3)(b) exempted from the obligation in s.424A(1) “information that the applicant gave for the purpose of the application for review”. Counsel for the applicant submitted that clear breaches of s.424A(1) were apparent in relation to this information which was relevant to the reasonableness of relocation and that s.424A(3)(b) was not enlivened by what occurred in the Tribunal hearing (there being no other submissions by the applicant to the Tribunal in connection with the review).
In addressing the issue of the reasonableness of relocation the Tribunal had regard to a number of matters including country information, its conclusion that the applicant’s difficulties were limited to threats of harm in his local district in Punjab, the fact that the applicant spoke, read and wrote Punjabi and Hindi (the official language of India), the fact that he had already lived and worked away from Punjab in Rajasthan, that he had had stable employment with one company in Rajasthan since 2002, was chosen to accompany the company manager to Australia and that he had provided one address in Rajasthan from December 2002 onwards.
It is not in dispute that the information that the applicant spoke, read and wrote Punjabi and Hindi was information contained in his protection visa application in response to question 10 in Part C of the application. The information that he had been in stable employment with one company since 2002 was said to have been provided in Part C of his protection visa application, in response to a question about past employment. The applicant provided one address in Rajasthan from December 2002 onwards in Part C of his protection visa application in response to a question about previous addresses outside Australia where he had lived for 12 months or more in the last 10 years.
The applicant submitted that there was no analytical thought process involved in the Tribunal's adoption of this information (apart from applying it to the question of relocation) and that each fact amounted to part of the reason for affirming the decision under review going directly to the question of the applicant’s ability to relocate. It was contended that the Tribunal reasoning could be summarised as a conclusion that the applicant's problems were local within Punjab and that he could relocate and that part of the reason that the Tribunal found that the applicant could relocate was the fact of his language skills and his fixed residence and employment in Rajasthan.
It was contended for the first respondent that the only issue that arose was whether such information was given to the Tribunal for the purposes of the review and hence was within the s.424A(3)(b) exception. In that respect it was contended that there was nothing in the applicant’s evidence at the hearing that went to these specific issues and that a mere general affirmation of the accuracy of the original application did not constitute giving the information therein to the Tribunal within the meaning of s.424A(3)(b) (see for example, SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [20] and [157] and SZGGT v Minister for Immigrationand Multicultural and Indigenous Affairs [2006] FCA 435 at [44] – [49]).
It is first necessary to consider whether this material is within s.424A(1). Counsel for the first respondent contended that the information in particulars (b) to (d) did not form part of the reason for the decision, as the reason for the decision was that the applicant's fears were localised and were not well founded throughout India. It was submitted that what formed part of the reason was not the three items of information in question but rather the appraisal of such information in the sense that the facts were appraised as indicating the reasonableness of relocation. Such an appraisal was not “information” for the purposes of s.424A(1).
It was also submitted that the information in question did not in its terms constitute a rejection, denial or undermining of the applicant's claims to be a person to whom Australia owed protection obligations (see SZBYR at [17] – [18]).
However, I am satisfied that the facts in particulars (b) and (d) constitute “information” within the meaning of that word in s.424A(1), consistent with the view of the majority of the Full Court of the Federal Court in VAF that the term "information" in s.424A(1) refers to “knowledge of relevant facts or circumstances communicated to or received by the Tribunal” (at [24] per Finn and Stone JJ). This proposition in relation to the compass of the term "information" in s.424A(1) was not overruled or indeed questioned by the High Court in SZBYR.
Information about an applicant’s attributes or past experiences which is relevant to a conclusion as to the reasonableness or practicability of relocation (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659), and which in this case the Tribunal in fact considered relevant to that issue, is within s.424A(1). The matters of the applicant’s language ability and past residence at one place in India in particulars (b) and (d) went directly to the question of the applicant’s ability to relocate and were quite clearly a part of the reason that the Tribunal found that the applicant could relocate, given that the Tribunal found that the applicant’s problems were local. These “facts” can be distinguished from the Tribunal’s consequential appraisal of the relevance of the evidence before it as to the applicant’s language skills (in light of the fact that Hindi is the official language of India), his residence in one place outside Punjab and employment in Rajasthan and other evidence relevant to the reasonableness of relocation.
The material in question consisted of specific responses to questions in the protection visa application (SZBYR at [17]). Given the relevance of relocation to the question of whether an applicant is a person to whom Australia owes protection obligations, rather than simply constituting “neutral” matters akin to the date of a protection visa application, specific factual matters relevant to the reasonableness or practicability of relocation would be part of the reason for affirming the decision under review within s.424A(1). Moreover because of their relevance to the issue of relocation they can be seen to contain in their terms an “undermining” of the applicant’s claims to have a well-founded fear of persecution in India, insofar as that is necessary to be established in order that “information” fall within s.424A(1) (see SZBYR at [17] and MZXBQ at [27] – [28]).
In relation to particular (c), the fact that the applicant had employment with one company since 2002 can also be characterised as “information” consisting of knowledge of relevant facts or circumstances in the protection visa application. However the Tribunal’s appraisal of that employment as “stable” is not “information” in s.424A(1) (see VAF at [24] and SZBYR at [18]).
Subject to this qualification, each item can be characterised as information that would be part of the reason for affirming the decision under review in s.424A(1), determined in advance and independently of the Tribunal’s particular reasoning as suggested in SZBYR. These matters were clearly relevant to the question of relocation, which was the critical issue in this case (and see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [29]).
Hence such matters fall within s.424A(1) and it is necessary to determine whether each of these items of information was given by the applicant to the Tribunal for the purposes of the review within s.424A(3)(b).
The first respondent’s primary argument was that the information in issue was given to the Tribunal for the purposes of the review in the course of the Tribunal hearing as considered in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [41] – [64], VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [48] and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35].
A transcript of the Tribunal hearing is before the Court annexed to an affidavit of Robert Liu affirmed and filed on 10 April 2008. Each party referred to the transcript. Counsel for the applicant referred to several aspects of the hearing and exchanges between the Tribunal member and the applicant, but submitted that these did not bring s.424A(3)(b) into play. Reference was made to the fact that the Tribunal asked the applicant (transcript p 4) where he was living after 2000. After the applicant said, "I was living Rajasthan" the Tribunal asked him:
MEMBER: Okay. Can you recall what month that might have been, what part of the year, early in the year, late in the year?
INTERPRETER: Are you ask about Rajasthan?
MEMBER: Yes, yes.
INTERPRETER: I moved to Rajasthan in the month of November, year 2002.
MEMBER: 2002?
INTERPRETER: 2000.
MEMBER: Okay. I just want to be quite clear. Was that when you started working for the business there, J… Industries?
INTERPRETER: Yes, before I was working for one other factory. Later on I just joined this factory.
MEMBER: Okay. So you were both working and living in Rajasthan from November 2000 and going back to [his home village] from time to time?
INTERPRETER: Yes.
Subsequently (transcript p 5) the applicant confirmed to the Tribunal that he was a member of the Akali Dal (Mann) Party from 1991 until 2000 when he went to Rajasthan.
Counsel for the applicant acknowledged that in a subsequent exchange (transcript p 10) the Tribunal discussed with the applicant his original statement and referred to the fact that the applicant had said at the beginning of the hearing that his protection visa application and accompanying statement “was a correct statement of [his] situation”. The Tribunal then put to the applicant that he had claimed in that statement that it was after he was arrested and released again in 2002 that he left Punjab and went to Rajasthan to get a job and work. The Tribunal observed that there was no mention in the statement of the applicant having moved to Rajasthan to live and work in 2000 and of having been arrested in Rajasthan and brought back to Punjab on this or any other occasion. The applicant explained (transcript p 11) that he had referred to the move to Rajasthan but “did not give the time”. When queried further about the 2001 incident he stated that he “did not put everything in detail in my statement”.
The applicant submitted that there was nothing in these passages or elsewhere in the hearing in relation to the applicant's ability to speak, read and write Hindi or Punjabi, the fact that he had stable employment with one company since 2002 or that he had provided one address in a named place in Rajasthan from December 2002 onwards. The information the applicant provided to the Tribunal in the hearing was said to be general information which did not go to the specifics of the stability of the applicant’s employment or his address or relate at all to his ability to speak, read and write both Punjabi and Hindi and hence was not within the s.424A(3)(b) exception.
In relation to the matter in particular (c) about his employment with one company since 2002, it is apparent that in response to Tribunal questioning the applicant confirmed his employment with “J… Industries” from 2002 (and that he came to Australia in January 2005 with his company manager). The Tribunal’s questions about the applicant’s employment history were specific and arose from the protection visa application. The applicant gave direct evidence which affirmed the information about his employment with one company since 2002.
Nowhere in the Tribunal hearing was the fact that the applicant provided one address in a particular place in Rajasthan from December 2002 onwards addressed, although the applicant did confirm that he was both working and living in Rajasthan from 2000 on. This was clearly a related issue that was also relevant to and taken into account in relation to relocation. However the applicant’s residence at one address for over two years is conceptually distinct from the fact that the applicant had already lived away from Punjab in Rajasthan. Both are issues of relevance to the issue of relocation. On balance, in light of the authorities considered below about the construction of s.424A(3)(b) it has not been established that the specific fact of the applicant’s residence at one place outside Punjab was given to the Tribunal in the exchanges in the hearing about his residence in Rajasthan.
Counsel for the first respondent acknowledged that the fact that the applicant spoke, read and wrote Punjabi and Hindi was not referred to anywhere in the transcript of the Tribunal hearing or other evidence before the Tribunal, except in the answer to a specific question in the application for a protection visa. Accordingly, it is necessary to consider whether the applicant gave such information to the Tribunal by his confirmation or global adoption of the accuracy of the protection visa application.
At the start of the hearing the Tribunal sought confirmation from the applicant that the contents of his original protection visa application and accompanying statement were “an accurate picture of [his] details and claims”. In response to such question (transcript page 4) the applicant said “yes”.
The Tribunal then asked: “So you are happy to proceed on the basis that those are before the Tribunal today as a starting point for today’s hearing, together of course with those comments you provided with your review application in August?”. The applicant replied “Yes”. (transcript p 4).
The Tribunal discussed with the applicant where he lived at various times. He said he had lived in his home district in Punjab until 2000 and visited every now and then thereafter (transcript p 4). In response to a question as to where he was living after 2000 he replied “Rajasthan”. The Tribunal confirmed with him that he was living in Rajasthan from 2000 (transcript p 4) and the exchange about exactly when he started working and living in Rajasthan set out above followed.
The applicant also gave oral evidence in relation to his claim that police came and located him in Rajasthan in 2001 after he moved to Rajasthan in 2000 when he returned to Punjab to visit (transcript p 7 – 9).
The Tribunal then raised with the applicant that in the statement accompanying his protection visa application he had claimed that it was after his arrest and release in 2002 that he left Punjab and went to Rajasthan to get a job and to work (transcript p 10), that he had not claimed he moved to Rajasthan in 2000 and had not referred to being arrested in Rajasthan and brought back to Punjab. The applicant told the Tribunal that he did not put everything in detail in his statement (transcript p 11). The Tribunal observed that there were significant inconsistencies, confirmed that the applicant claimed he returned to Rajasthan after he was released and then asked (transcript p 11) “And then you kept living and working there until you left India to come to Australia in January 2005?”. The applicant responded “yes” and volunteered that he thereafter stayed in Rajasthan except for visits to Punjab in 2002 and 2003.
The Tribunal then asked the applicant (transcript p 12) “What was the nature of your job with J… Industries in Rajasthan?”. The applicant explained his work as a technician. The Tribunal asked him to explain why he was selected to accompany the company manager on a trip to Australia (transcript p 12).
Subsequently, the Tribunal discussed the local nature of the applicant’s problems (transcript p 13) and country information to the effect that there was no reason to believe that someone who was not high profile but had problems in Punjab would not be able to live elsewhere in India (transcript p 14). It asked the applicant if he had had any serious problems in Rajasthan apart from the 2001 incident with the Punjabi police. He referred to problems when he returned to Punjab after his father’s death in 2003 (transcript p 15).
The first respondent contended that insofar as the items of information were not specifically addressed in the hearing, the applicant had adopted or affirmed the statements made in connection with his protection visa application by the global statement of agreement with the Tribunal's question that it could take his original application and accompanying statement as an accurate picture of his details and claims and was happy to proceed on the basis that those were before the Tribunal as the starting point for the hearing.
However the applicant relied on the fact that in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 Jacobson J had held that the mere adoption of an earlier statement at a hearing before the Tribunal does not render it information given by the applicant for the purposes of the review. This approach was said to have been accepted as correct by Moore and Weinberg JJ in SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 150 FCR 214.
The circumstances in which s.424A(3)(b) is enlivened by what occurs in a Tribunal hearing have been considered in many Federal Court cases. In contrast to many of those cases, in this case there were no written submissions given to the Tribunal by the applicant and the issues of the applicant’s language ability and single place of residence in Rajasthan were not specifically discussed at the hearing. Hence in relation to these matters it is necessary to determine whether the applicant’s affirmation of the accuracy of his protection visa application amounted to giving the information therein to the Tribunal within s.424A(3)(b).
In NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 Jacobson J acknowledged at [37] that the s.424A(3)(b) exemption applied to information in a protection visa application which an applicant expressly adopted and put forward as part of his or her application for review by the Tribunal (and see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] in which the applicant relied on the terms of his protection visa application in a written submission to the Tribunal). There was no transcript of the Tribunal hearing before the Court in NAZY. His Honour suggested that the applicant must put forward the information himself. On this basis information provided by an applicant in response to questioning by the Tribunal member in the course of the Tribunal hearing would not fall within s.424A(3)(b).
While a different approach was taken in other cases (see for example SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 at [10] – [11] per Dowsett J), in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Moore J at [20] agreed with the approach taken in NAZY in relation to adoption of the contents of a document given to the Department, finding that the mere adoption by the applicant in the Tribunal hearing of a written statement made at the time of a protection visa application would not “transform” that information into information provided by the applicant in his review application within s.424A(3)(b). Weinberg J referred with apparent approval to this aspect of the reasoning of Moore J at [157] in circumstances in which the applicant in question had confirmed to the Tribunal that he had read his earlier statement before signing it and that he accepted it was true and correct relating to his experiences (at [17]). A similar exchange occurred in this case.
The applicant also relied on SZGGT in which Rares J considered the scope of s.424A(3)(b). His Honour rejected the proposition that the fact of an application for review rendered everything referred to in the delegate’s decision information given by the applicant for the purposes of review (at [30] – [35] and [42]) and suggested that the question of whether an applicant gave information within s.424A(3)(b) by “republishing” something provided at a different time, was to be objectively assessed from the perspective of what a reasonable person in the position of an observer of the interchange would have understood (at [38]). His Honour pointed out that each case would depend on its own facts, having regard to the fact that neither the applicant nor the Tribunal would be taking an overly technical approach to their communication, but also to the fact that the exchange of information was taking place “in the context of a procedure dictated by the Parliament mandating what is required to be done in order that the Parliament’s prescription of fairness in the process of assessing an application for review be followed” (at [49]).
While SZGGT concerned information communicated in a letter to the Tribunal from the applicant (not what occurred in the hearing), it is instructive in indicating that it is necessary to consider the “interchange” in issue from such a perspective.
Counsel for the first respondent referred to SZDPY. In that case the Tribunal had regard to factual information about an applicant’s education and employment history in considering the reasonableness of relocation. Kenny J accepted (at [29]) that the Tribunal’s knowledge of the educational institutions and dates of attendance and employment history set out in the appellant’s protection visa application “could constitute knowledge of relevant facts or circumstances communicated to or received by the Tribunal and therefore information for the purposes of s 424A of the Act”.
However Kenny J found that the appellant had not established that the educational information “set out in his visa application” was a part of the reason for the Tribunal decision, “because other detailed information on the same subject was specifically provided to the Tribunal at the Tribunal hearing” (at [30]) and hence was within s.424A(3)(b).
In SZDPY the applicant had “separately and specifically” given detailed information on his education and employment to the Tribunal in answer to specific and direct questions on those issues. It was open to the Tribunal on the information given at the hearing to find (as it did) that the applicant was well educated and resourceful so as to make relocation reasonable (at [36]). It could be said that he affirmed those specific facts (SZEEU at [91], [173] and [264]), albeit the Tribunal originally came to know such matters from the visa application (SZDPY at [35]). The same may be said about the employment information in this case. Hence as in SZDPY by affirming this specific fact, albeit in response to questioning, the applicant gave such information to the Tribunal within s.424A(3)(b) (see SZDPY and NBKT at [58] and SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359). The Tribunal’s appraisal of the fact of that employment as “stable” was not information in s.424A(1) and did not have to be put to the applicant under s.424A(1). (However I note that in SZDPY Kenny J distinguished the situation addressed in SZEEU by Moore J) where an applicant merely adopted the contents of a document as a whole which would not bring specific items of information within the statement before the Tribunal for the purposes of s.424A(3)(b).
In this case information about the applicant’s language ability and his single residential address from 2002 onwards was not separately and specifically given to the Tribunal at the hearing. The Tribunal had regard not only to the fact that the applicant had lived in Rajasthan from 2000 but also to his residence at one address from 2002 in considering the reasonableness of relocation. SZDPY does not support the first respondent’s submissions in relation to particulars (b) and (d). It is consistent with the approach taken in SZEEU in relation to a global adoption of a document.
The first respondent also relied on VWBF at [48] per Heerey J. His Honour expressed the view on the state of the authority at that time that “If this matter were free from authority, there would be much to be said for the view that an applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered” (emphasis added) but found, in any event, that the information in question in that case had been “positively advanced” on behalf of the applicant in a letter to the Tribunal from his migration agent on his behalf. VWBF does not assist a determination as to the effect of a global adoption of a protection visa application (although his Honour highlighted some of the difficulties in reconciling earlier authorities on the scope of s.424A(3)(b)).
Finally, the first respondent relied on the decision of the Full Court of the Federal Court in NBKT in which Young J (with whom Gyles and Stone JJ agreed) considered the information in a protection visa application consisting of the date of the applicant’s arrival in Australia and the date of the protection visa application. While expressing “unease” (at [36] – [40]) about whether such dates constituted “information” (notwithstanding the approach taken in SZEEU), Young J considered whether the appellant gave both pieces of information to the Tribunal notwithstanding that she had not expressly volunteered the date of her application at the hearing and had not given the date of her arrival in response to a specific Tribunal question.
The Tribunal in NBKT had discussed with the appellant the delay in her application for a protection visa. Relevantly, she had confirmed in response to a Tribunal question that everything she had said in her application was correct and that there were no changes she wished to make. However, in contrast to this case, the appellant in NBKT had also provided a written submission to the Tribunal referring to the claims in her protection visa application.
The appellant sought to rely on NAZY in relation to the date of arrival in Australia. Young J in NBKT referred to the fact that Jacobson J in NAZY held that the s.424A(3)(b) exemption applied to information in a protection visa application which an applicant “expressly adopts and puts forward as part of his or her application for review by the Tribunal”, but that “information provided by an applicant during questioning by the Tribunal member in the course of a hearing does not fall within the scope of s 424A(3)(b)” (see NBKT at [48]) and that “mere adoption of an earlier statement at the hearing before the Tribunal does not render it information given by the applicant for the purposes of the review” (NBKT at [48]).
In NBKT Young J found that while the approach taken in NAZY was understandable in the particular circumstances of that case, it was "another step to accept the general proposition that information given in the course of a Tribunal hearing must be put forward in chief before it can fall within the exception in s 424A(3)(b)" (at [52]). His Honour referred to a number of other authorities (including, SZEEU, VWBF and SZDPY) and stated (at [59] – [60]):
These 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. (emphasis added)
In 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.
Young J did not accept that s.424A(3)(b) could not apply because the information as to the date of the protection visa application was given in response to a question by the Tribunal, stating (at [61]):
The mere fact that the Tribunal elicited a response from the appellant, which confirmed an uncontentious detail of her application, does not render the information incapable of falling within the exemption in s 424A(3)(b). It is not inconsistent with NAZY or SZEEU to hold that the exemption applies in such circumstances, given the nature of the information and the context in which it was communicated.
Thus it is now clear that it is not essential that specific information be volunteered. Provided it is separately and specifically given to the Tribunal it may fall within s.424A(3)(b). Hence the exchange in the hearing about the applicant’s employment was such that the applicant gave that information to the Tribunal within s.424(3)(b).
However, considered from the perspective of a reasonable observer, the exchange about the applicant living in Rajasthan did not give the Tribunal the information that the applicant had lived at one address from December 2002 onwards.
In NBKT Young J also found that the applicant ‘gave’ the date of her arrival in Australia and the approximate date of her visa application “via her visa application and the written submission provided to the Tribunal by [her] adviser” (at [62]) and also that “by filing written submissions with the Tribunal that expressly referred to and incorporated the statement of grounds which was attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application” (at [63]). This was said to indicate that the applicant intended the Tribunal to look at her application and hence was a sufficient basis to find she gave the date of her protection visa application to the Tribunal for the purposes of the review application. There were no such written submissions in this case. The applicant did not either himself or through an adviser provide any written submissions to the Tribunal. Hence the application of s.424A(3)(b) must be determined solely by reference to what occurred in the Tribunal hearing (cf VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 and M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131).
The Full Court of the Federal Court in NBKT did not depart from the proposition in SZEEU and NAZY that a mere global affirmation of the accuracy of a statement (or, in this case, a protection visa application) containing many diverse pieces of information is not such as to constitute giving specific items of information within that statement or document to the Tribunal for the purposes of the review within s.424A(3)(b).
As Young J observed in NBKT at [59] “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.” It is relevant to have regard to the nature of the information in question (NBKT at [59]). While information may be “given” by an applicant in response to Tribunal questioning (see SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2008] FCA 609 at [43], SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1389 and NBKT at [57]), in the circumstances of this case, the applicant’s affirmation of the accuracy of his protection visa application did not of itself constitute adopting in terms or giving the specific items of information in question to the Tribunal for the purposes of review. While the information in question may in one sense be said to be “uncontentious factual material”, as submitted by the applicant, when considered in the context of the criteria for a protection visa, the fact and extent to which the applicant spoke, read and wrote Hindi and Punjabi and the precise circumstances of his residence in Rajasthan were contentious, in as much as they impacted upon the Tribunal's view of his ability to relocate and hence on a determination of whether he had a well-founded fear of persecution in India. Hence the character of this information can be distinguished from that in issue in NBKT on the objective basis suggested by Rares J in SZGGT (at [36] – [49]), particularly having regard to considerations of fairness in the process.
Neither the global acceptance of the accuracy of the protection visa application and accompanying statement or what was otherwise said in the hearing constituted a specific acceptance by the applicant of every claim therein or a specific communication to the Tribunal of the claims in issue in particulars (b) and (d). What occurred in the hearing was not such that a reasonable observer would have understood that the applicant was inviting the Tribunal’s detailed attention to all the specific information in the protection visa application in such a way that it could be said that he gave the specific information to the Tribunal for the purposes of the review application.
The information in particulars (b) and (d) was not given for the purpose of the application within s.424A(3)(b). Hence the Tribunal failed to comply with s.424A in relation to such information. Such a failure constitutes jurisdictional error. The decision of the Tribunal should be set aside and the matter remitted for reconsideration.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 August 2008
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