SZISR v Minister for Immigration
[2006] FMCA 1603
•13 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZISR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1603 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to comply with its obligations under s.424A(1) of Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3); 474; pt.8 div.2 |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 |
| Applicant: | SZISR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1148 of 2006 |
| Judgment of: | Emmett FM |
| Hearing dates: | 18 September & 13 October 2006 |
| Date of last submission: | 13 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Ms K. Rose, Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1148 of 2006
| SZISR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2006.
The applicant was born on 24 May 1981 and claims to be from Kyrgyzstan and of Kyrgyz ethnicity.
The applicant arrived in Australia on 24 September 2005, having legally departed from Bishkek on a passport issued in his own name and a short stay business visa issued on 20 September 2005.
On 24 October 2005, the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural Affairs.
In his protection visa application, the applicant claimed that he feared persecution by law enforcement agencies of the new government of Kyrgyzstan because of his political support of, and employment with, the ex president's son. The applicant claimed that the new government wanted to eliminate all supporters of the previous government and the applicant further claimed to have been interrogated, beaten and detained for two days by authorities.
The applicant maintained those claims before the Tribunal and gave further oral evidence at a hearing.
On 22 December 2005, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 12 January 2006, the applicant lodged an application for review of the Delegate's decision.
In support of his application, the applicant provided a copy of a letter to the Tribunal alleged to be from Mr BE, whom the applicant alleged assisted his escape from Kyrgyzstan through Russia and to Australia. The applicant claimed that Mr BE was a supporter of the applicant's opponents. The letter purported to assert that the applicant was a member of the National Triathlon Team of Kyrgyzstan. The applicant conceded that assertion was not true.
On 18 January 2006, the Tribunal wrote to the applicant, in accordance with s.424A(1) of the Act, informing the applicant that information before it indicated that the author of that letter, Mr BE, was in fact a supporter of the new government in Kyrgyzstan. Further, the Tribunal’s letter stated that this information was relevant to the applicant's application because it cast doubt on the applicant’s claims that he was persecuted by the new government because he had worked for and supported the president of the previous government.
The applicant, by his migration agent, responded to the Tribunals letter in a letter dated 12 February 2006. In his response, the applicant stated that the author of that letter had changed his opinion, following the demise of the ex-president's government, and asserted that Mr BE had written an open letter to a newspaper stating that he was wrong when he had opposed the ex-president. The migration agent’s letter also stated that the applicant believed that Mr BE's public acknowledgment in the newspaper was the main reason for Mr BE later being killed.
In the ‘Evidence’ section of its decision, the Tribunal records with some detail the claims it understood the applicant was making, both in writing and orally. The Tribunal also stated in that section of its decision that it had put to the applicant that Mr BE’s colleagues and most experts viewed the letter as a fake. The Tribunal went on to say that after reciting the source of that information:
“The Applicant asked why they had killed Mr [BE]. I noted there were a number of theories as to why he had been killed…The applicant asserted that [Mr BE] had said that the people of Kyrgyzstan needed [the ex-president] and that this had been why he had been killed.”
The Tribunal ultimately did not accept that the applicant was telling the truth in relation to his claimed experiences, which he said caused him to leave Kyrgyzstan. The Tribunal did not accept that the applicant suffered the torture that he claimed nor for the reasons or in the circumstances claimed.
Following the ‘Findings and Reasons for Decision’ section of the decision, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason if he were to return to Kyrgyzstan and was therefore not a person to whom Australia had protection obligations and consequently the Tribunal affirmed the decision under review.
The proceeding before this Court
On 19 April 2006, the applicant filed an application in this Court seeking review of the Tribunal's decision dated 28 February 2006 and in respect of which the applicant was notified on 23 March 2006.
The ground upon which the applicant relied for the relief sought is set out as follows:
“The Tribunal committed jurisdictional error of law by failing to give the applicant notice in writing of the particulars of information which the Tribunal considered to be the reason, or part of the reason, for affirming the decision under review.
Particulars
The applicant’s application for a visa to visit Australia was supported by a document signed by a certain named individual, who the Tribunal said had been an opponent of the political leader the applicant claimed to support. The applicant claimed that the individual had retracted his opposition in a letter written shortly before his death. The Tribunal apparently had information that the letter was a forgery. This was information that came within the scope of s 424A of the Act and was used by the Tribunal to support its finding that the applicant’s claims were fabricated. The Tribunal should have given the information to the applicant in writing with particulars of why the Tribunal considered it to be relevant to the case. The Tribunal failed to do so.”
The applicant was represented by Mr Jones, solicitor, this afternoon.
At the heart of the applicant's contentions, is a complaint that the Tribunal, in having regard to the information from Mr BE's colleagues and most experts and various theories as to why Mr BE was killed, was information forming part of the reasons for the Tribunal affirming the decision under review. Accordingly, the Tribunal was required, pursuant to s.424A(1) of the Act, to give the information to the applicant for his comments in writing.
The first respondent conceded that, if indeed the Court was of the view that this was information that formed part of the reason for affirming the Delegate’s decision, then the obligations that arise under s.424A(1) of the Act had not been complied with by the Tribunal.
The applicant submitted that a fair reading of the Tribunal decision as a whole made it clear that the information was about Mr BE, at least, part of the reason for the Tribunal's adverse credit findings in respect of the applicant, and, therefore, was part of the reason for affirming the Delegate’s decision.
The first respondent submitted that the exchange between the Tribunal and the applicant about that information was noted by the Tribunal in its decision in the course of identifying the evidence before it. However, the Tribunal makes no finding as to whether the letter, purportedly written by Mr BE to the newspaper, was a fake, or any other facts about Mr BE's loyalties or provenance of his letter to the newspaper.
The applicant's solicitor contends that the information about Mr BE related to an issue that caused the Tribunal sufficient concern that it was prompted to write a letter in accordance with s.424A of the Act prior to the hearing. The applicant's solicitor submitted that it was a necessary inference of the state of mind of the Tribunal that the Tribunal must have decided what it thought about that information and, therefore, it must have formed part of the reason for the Tribunal to affirm the decision under review.
Moreover, in the ‘Findings and Reasons for Decision’ section of its decision, the Tribunal expresses its adverse credibility findings in respect of the applicant to be predicated by the following words:
“For the reasons set out above...”
Immediately above those words are two paragraphs disclosing findings by the Tribunal. The reasons have regard to the applicant's specific claims and make findings resulting from the applicant's own evidence about those claims. The Tribunal also has regard to independent information before it in respect of persecution by the new government of supporters of the ex president of which the applicant claimed to be one.
The applicant's solicitor would urge on the Court a finding that, the words, “For the reasons set out above”, ought to be read sufficiently widely to include the reference in the ‘Evidence’ section of the decision and that one should infer, from the mere reference by the Tribunal to that evidence, that it formed part of the reason for the decision.
In considering whether information forms part of the Tribunal's reason for affirming the decision under review, a Court should consider the decision as a whole and whether the ultimate conclusion of the lack of satisfaction involved any part of the use by the Tribunal of information that is not excluded by s.424A(3) of the Act. I have particular regard to the comments of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [216] where he stated as follows:
“[216] That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.”
Weinberg J in SZEEU at [163] said that the expression, “a part of the reason”, should be read benevolently in favour of an applicant for review.
I also have regard to the decision of SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107, particularly at [40], where the Full Court of the Federal Court said that:
“In so far as [s.424A(1)] refers to a state of mind or mental process, it must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review.”
A fair reading of the decision, to my mind, makes it quite clear that the reason for the adverse credit findings in relation to the applicant as identified by the Tribunal in the words; "For the reasons set out above", are confined to those reasons immediately referred to above and forming part of the ‘Findings and Reasons for Decision’ section of its decision.
There is nothing in the manner in which the Tribunal has expressed its reasons that would support a submission that when the Tribunal states, "For the reasons set out above", that that statement is in any way inaccurate and should involve reading those words as including the whole of the decision..
In the circumstances, a benevolent reading of the decision, to my mind, does not establish a causal link between the information referred to by the Tribunal, in the ‘Evidence’ section of its decision, as information which formed any part of the reason for affirming the decision under review. In those circumstances, the requirements of s.424A(1) of the Act were not enlivened and ground 1 of the application is not made out.
The decision of the Tribunal to affirm the decision under review is otherwise based on findings and conclusions that were open to the Tribunal on the evidence and material before it and the decision contains no jurisdictional error.
In the circumstances, the decision of the Tribunal is a privative clause decision and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the proceeding is dismissed.
RECORDED: NOT TRANSCRIBED
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 27 October 2006
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