SZJJD & Ors v Minister for Immigration & Anor - [2008] FMCA 3

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJD & ORS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 3

MIGRATION – Application to review decision of Refugee Review Tribunal – Uruguayan applicant – Tribunal internal enquiry as to whether there was information about any current mistreatment of unionists and leftist activists in Uruguay – Tribunal researcher requested such information from Uruguayan organisations including the union to which applicant belonged – whether request for information and lack of reply was ‘information’ within s.424A(1) Migration Act – whether s424A(3)(a) applicable.

Migration Act 1958 (Cth), s.424A

Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 MZWFS v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 ALR 323 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 156 FCR 205 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 SZCNP v Minister for Immigration & Multicultural Affairs[2006] FCA 1140 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 SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110 SZHPP v Minister for Immigration & Anor [2007] FMCA 1031 SZIOF v Minister for Immigration and Citizenship [2007] FCA 1858 *VAFv Minister for Immigration and Multicultural and Indigenous Affairs*** (2004) 206 ALR 471 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
Applicants:	SZJJD, SZJJE, SZJJF, SZJJG, SZJJH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2625 of 2006

Judgment of:

Barnes FM

Hearing date:

17 October 2007

Delivered at:

Sydney

Delivered on:

31 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr N. Poynder

Counsel for the Respondents:

Mr M. Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2625 of 2006

SZJJD, SZJJE, SZJJF, SZJJG, SZJJH

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

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 August 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are husband and wife and their three children who are citizens of Uruguay. Only the applicant husband made specific claims under the Refugees Convention. For convenience he is referred to as the applicant. He and his family arrived in Australia on 13 December 2005 and in January 2006 applied for protection visas. The application was refused and the applicants sought review by the Refugee Review Tribunal. The applicant and his wife gave oral evidence at a Tribunal hearing.
After the Tribunal affirmed the decision of the delegate of the first respondent the applicants filed an application for judicial review in this Court on 18 September 2006. They now rely on an amended application filed in Court on 17 October 2007.
In essence, the applicant claimed to fear persecution in Uruguay by reason of his political activities with the construction union, “Sindicato Union de la Construccion y Afines” (SUNCA) and the leftist political party the “26^th March of National Liberation Movement Tupamaros” (MNLP) which was subsequently renamed the “Movimiento de Participación Popular” (MPP).
The applicant claimed that since about 1991 he had been involved in unions and other “leftist” groups in Uruguay, including SUNCA and the MNLP. He claimed that he experienced persecution because of his involvement in such groups. In particular he claimed that in 1992, after taking part in a general strike organised by unions including SUNCA, he had experienced discrimination at work and that he was sacked. He had difficulty finding another job. He claimed that in July 1992 two unidentified persons shot him. He required an operation to remove the bullet.
The applicant claimed that after he commenced work on a new construction in October 1992 he was harassed by his boss because of his active involvement with SUNCA. In September 1993 he left that employment because of death threats.
He claimed that after he found another job in construction he continued to participate in marches, strikes and meetings with SUNCA. He claimed that he was stalked. On 11 November 1993, after finishing a union meeting, he was detained by the police for two days, questioned about SUNCA members and their plans and tortured. He was then released without charge. After this incident he had to leave his job again and change his address. He set aside his SUNCA activities for some time. He claimed that because of these incidents and his inability to find employment without discrimination and threats, he worked as an independent worker in a small business.
The applicant claimed that he joined the MNLP. He developed a close link with the MNLP and participated in its political activities at a time when there was a lot of repression and persecution of unionists and left-wing political parties, including the MNLP.
He claimed that in 1998 he and his wife and daughter were driving home when someone in another car threatened to kill him and that “in this opportunity his wife and daughter save [sic] his life”. He claimed that he had to move several times for fear of detention, torture and disappearance. He had placed assets in his wife’s name because he was afraid for his life. He also claimed that he was a victim of constant telephone threats, that he was stalked and harassed and was afraid for his life and the security of his family.
The applicant claimed that because of his involvement in MNLP meetings about planned protest activities he had been attacked by two unknown persons on 5 October 2005. He received a knife injury to his head and had to attend hospital. He claimed that this incident also meant that he had to move his home and led him to leave the country with his family.
The applicant claimed that political problems and repression were continuing in Uruguay despite the 2004 election of the leader of the socialist Broad Front or Frente Amplio (FA) coalition to a five-year presidential term.
Finally the applicant claimed that after the family came to Australia his wife had been informed by her brother that unknown men in plain clothes had been asking for him and that they carried a list of people that was possibly a black list of union members. He believed that the persecution, threatening phone calls and stalking he had experienced had been carried out by plainclothes police.
The applicant’s advisor provided the Department with a statement of the applicant’s claims and supporting evidence in relation to his activities in Uruguay. Included in that material was a document on SUNCA letterhead, signed for the President of that Organisation, stating that the applicant was an affiliated member of the union between 1988 and 1996 and that he had worked as a union delegate. Medical records were provided in relation to treatment of a slash wound on the applicant’s scalp on 5 October 2005, as well as letters of support from churches and information about accounts and assets in Uruguay in the name of the applicant’s wife. Photographs, said to be of the applicant’s activities in Uruguay, were also provided.
In a decision dated 15 March 2006 a delegate of the first respondent refused the application for protection visas, essentially on the basis that the claims were vague and lacking in substantiating detail and that there was a lack of documentation or other evidence to support the claims that over the period 1992 to 2005 the Uruguayan police had threatened the applicant and subjected him to detention and interrogation and torture and that other unidentified individuals had shot him and attempted to stab him. The delegate also found that the applicant’s claims that he would suffer persecution if he returned to Uruguay and involved himself in union activities were contrary to independent country information indicating that the authorities would be willing and able to offer him protection.

Tribunal review

The applicants sought review by the Tribunal. Their migration agent provided the Tribunal with further material, including documentation as to the purchase of a family property in the name of the applicant’s wife, character references, information from Amnesty International in relation to torture in Uruguay and ill-treatment in prisons, police stations and other detention centres and press photographs about events in Uruguay. The applicant and his wife attended a Tribunal hearing on 21 June 2006.
On 22 June 2006, the day after the hearing, the Tribunal member sent an internal request to a Tribunal researcher for information in relation to whether there were reports of targeting of any leftists/unionists in Uruguay since 2004, as claimed by the applicant, and whether such reports would be freely available in Uruguay.
On 26 June 2006 a Senior Researcher in the Country Research Unit of the Tribunal sent four similarly worded emails to the Instituto de Estudios Sociales y Legales del Uruguay (the ESLU), the Servicio Paz y Justicia Uruguay (the SPLU), the Instituto Cuesta-Duarte and the Movimiento de Participación Popular (the MPP) seeking information on the treatment of unionists and/or leftist activists in Uruguay since 2004.
On 5 July 2006 the applicant’s advisor provided the Tribunal with extracts from independent country information in relation to the situation in Uruguay.

The Tribunal decision

In its reasons for decision dated 1 August 2006 and handed down on 22 August 2006, the Tribunal summarised the applicant’s written and oral evidence and claims. It considered “evidence from other sources” consisting of independent country information. It noted that neither the US State Department’s Country Report on Human Rights Practices for 2005 in relation to Uruguay nor the Amnesty International Annual Report on Uruguay for 2005 referred to the MNLP or the MPP. It observed that the Amnesty International report did not refer to any targeting of leftists or unionists in recent years. The Tribunal also noted information that the October 2004 presidential election in Uruguay had been won by a candidate from Frente Amplio which was described as a ‘left-wing coalition’ and that Human Rights Watch did not refer to Uruguay in its World Report 2005. The Tribunal stated that no information on the targeting of leftists or unionists in Uruguay since 2004 had been found amongst other sources consulted by it.
After discussing information about whether the Frente Amplio coalition had moved towards the centre and was pursuing more right-wing policies, the Tribunal referred to the fact that on 26 June 2006 it had contacted the four institutes to which the emails referred to above had been sent “for their views on the current situation for unionists and leftists generally”. The Tribunal recorded that “no reply has been received to date”.
The Tribunal then addressed information before it about freedom of speech and the press, the activities of human rights groups in Uruguay and in relation to whether reports of any human rights abuses of unionists and leftists generally would be freely available in Uruguay. It also considered information about the anti-USA protests at the time of the Americas Summit in Argentina in November 2005.
In its findings and reasons the Tribunal accepted that the applicant was an active unionist in Uruguay and a union delegate with the union SUNCA in 1991 – 1992. It accepted that, consistent with the medical evidence, the applicant was shot by two unidentified men after a strike in 1992, that in September 1993 he was threatened and therefore resigned, that he obtained another job but continued to be harassed and that in late 1993 he was detained by police after a union meeting. The Tribunal accepted that the applicant was held for two days, tortured and released without charge on that occasion and that, as he claimed, he then left his job, changed his address and ceased SUNCA activities for a time. The Tribunal also accepted the applicant’s claim that he was an active member of SUNCA until 1996. It noted his claim that he thereafter became less active because his own employment profile had changed.
Despite the absence of documentary evidence as to membership of the MPP, the Tribunal also found as plausible and accepted that the applicant was a member of MPP. It accepted that both SUNCA and MPP were legal bodies in Uruguay.
The Tribunal then addressed the applicant’s claim that it was “normal” for members of SUNCA and the MPP to be attacked and killed in Uruguay and that he feared that this might happen to him. However it found: “For a number of reasons I cannot be satisfied that, under the present government which came to power in 2004, this is the case”.
It found, first, that some of the applicant’s recent behaviour did not appear to be consistent with such a fear. It noted that he and his family took an annual holiday outside Uruguay (most recently to Argentina in 2005) yet apparently did not seek asylum and willingly returned to Uruguay after these holidays. The Tribunal found it striking that although the applicant and his wife gave plausible evidence that armed plainclothes police had pulled their car over in mid-2003, this incident did not lead them to seek asylum in Argentina or stop them from returning to their home after that trip and inferred that, whatever the circumstances of that incident, the applicant and his wife did not have an ongoing fear of harm because of it by the time they visited Argentina in 2005.
Secondly, although the applicant claimed “to have been subjected to constant threats and harassment in recent years, reflecting an environment of considerable discrimination against him because of his union activities”, the Tribunal found that some of his circumstances were not generally consistent with this claim. It noted that the applicant was the owner of three properties and a vehicle and had a well-established business by the time of his departure from Uruguay and that he and his family travelled outside Uruguay each year for a holiday.
Thirdly, while the Tribunal accepted that the applicant was assaulted outside his home in Montevideo on 5 October 2005 after returning from a political meeting and that he sustained an injury to his head, it found that the motivation for this assault (which he had claimed was due to his political activities) “seems more likely to have been unrelated to that background”. It observed that the applicant had claimed that he had come home unexpectedly and had been robbed. It found that this suggested that the incident was an “opportunistic mugging of a person unknown to the assailants, rather than a planned attack by political opponents”. The Tribunal also had regard to the fact that while the applicant claimed that his response to this incident was to move from Montevideo to a city some 600 kilometres away, he later gave evidence that the whole family in fact spent five days each week at the address in Montevideo where the assault took place for a period of over two months thereafter and that his children continued to attend their normal school throughout this period. It found that the applicant’s willingness to do this was not consistent with a claimed fear of future serious assault. On this basis the Tribunal did not consider plausible the applicant’s claim “that his assailants referred to his political activities during the assault or that he believed the assault was anything more than a one-off mugging unrelated to his political opinion or activities”.
The Tribunal found “finally” that the applicant’s claim that it was “normal” for members of SUNCA and the MPP to be attacked and killed in Uruguay was “not borne out by the evidence he submitted, nor by the evidence from the other sources” referred to by the Tribunal. It observed: “There is no evidence before the Tribunal from SUNCA or the MPP themselves in support of this assertion”. The Tribunal referred to independent information in relation to the largely tolerant attitude of the ruling FA party towards unions and to reliable evidence about laws passed in 2005 to protect union leaders and negotiators from workplace discrimination, the freedom of unions from government regulation, the freedom of workers to join unions and a 75% increase in union membership since 2003. The Tribunal accepted that labour unions were independent of political party control but were traditionally “associated more closely with the Broad Front political coalition”.
The Tribunal found “in addition” that it appeared on the independent evidence that if serious human rights abuses against leftists or unionists (including abuses by plainclothes police acting on the orders of business owners) were occurring, they would be quickly publicised. The Tribunal stated:
I consider the evidence reliable that constitutional guarantees regarding free expression and freedom of the press are generally respected in Uruguay and that domestic and international human rights groups generally operate without government restriction, investigating and publishing their findings on human rights cases. In my view, if there were continuing attacks on people with [the applicant’s] background they would be reported, if not by the Uruguayan media (which I accept faces some limitations on investigative reporting), by human rights groups such as Human Rights Watch or Amnesty International. These organisations face no restrictions on reporting human rights abuses, and both SUNCA and the MPP could readily pass on information to them about problems facing their members. As they do not appear to have done so, and as the MPP have not responded to the Tribunal’s direct enquiries, I infer that activists within the SUNCA or MPP are not facing physical attacks because of their political activities.
The Tribunal addressed the press reports submitted for the applicant on 5 July 2006, but had regard to the fact that none of these reports referred to blacklists or attacks on members of the MPP or SUNCA. It found that while sedition charges had recently been laid against four protestors involved in the November 2005 anti-USA protests (a protest in which the applicant did not participate) and while the government had adopted some centrist or even right-wing policies despite being a left-wing coalition, it did:
“not think that it would be reasonable to draw the inference from these developments that a person with [the applicant’s] political background might now face a real chance of being seriously harmed because of his political opinions in Uruguay.
For these reasons the Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for reason of his political opinion in Uruguay. The Tribunal noted that he did not claim to fear harm for any other reason. It found that he did not have a well-founded fear of Convention-related persecution in Uruguay. As he could not be granted a protection visa, the Tribunal found that it followed that the other applicants, who were members of his family, could not satisfy the criteria for protection visas.

This application

The applicants sought review of the Tribunal decision by application filed in this Court on 18 September 2006. They rely on an amended application filed on 17 October 2007. There is one ground in the amended application. It is that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) “in that it failed to give the first applicant particulars of information that it considered would be the reason for affirming the decision under review, to ensure that the first applicant understood why the information was relevant to the review, and to invite the first applicant to comment on it”.
The particulars of this ground are as follows:
(a) The information was that on 26 June 2006 the second respondent contacted the Instituto Cuesta-Duarte, Instituto de Estudios Sociales y Legales del Uruguay, Movimiento de Participación Popular (MPP) and Servicio Paz y Justicia Uruguay for their views on the current situation for unionists and leftists in Uruguay, and that it received no reply to its contact.
(b) The failure of the second respondent to receive any response to its contact was a part of the reason for affirming the decision to refuse a protection visa to the applicants. Based on the failure of these bodies to respond to its contact, the second respondent inferred that activists with a political profile of the first applicant were not facing physical attacks because of their political activities.
(c) The absence of any response to the Tribunal’s contact was not information that was “just about a class of persons of which the applicant was a member”, within the meaning of s 424A(3)(a) of the Act. It was a failure to respond to a direct enquiry made by the second respondent as a result of claims made by the first applicant.
At the time the present application was lodged with the Tribunal s.424A of the Act relevantly provided:
“1.    Subject to subsection (3), the Tribunal must:
(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(c) invite the applicant to comment on it.
2. The information and invitation must be given to the applicant:
(a)     … by one of the methods specified in s.441A; …
…
3. This section does not apply to information:
(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member.”
It was pointed out for the applicant that his claim was based on his membership of SUNCA and MNLP (which was renamed MPP) and that in essence he claimed that because of his involvement with these unions and leftist groups he had suffered attacks and harassment amounting to persecution. Counsel for the applicant drew attention to the fact that one of the issues which arose during the Tribunal hearing was whether the applicant had any evidence that other people in SUNCA or the MPP had experienced problems.
The transcript of the Tribunal hearing at which the applicant and his wife gave evidence regarding their claims is before the Court. The transcript contains both the English language used by the Tribunal and the interpreter and also a translation of the Spanish spoken by the applicant and the interpreter. No issue is taken by either party in relation to any differences between what was said and its interpretation in either language.
In the Tribunal hearing the applicant described the attack and robbery he claimed he had experienced in October 2005. He claimed that the attackers had referred to his unionism and that he believed the purpose of the attack was to get him to stop his activities. The Tribunal asked if other people in the MPP or in SUNCA were having similar problems (transcript, tape 1, page 56). The applicant agreed that other people had been physically attacked and added that it was “normal”, and that in Uruguay “the justice system is so lenient” (transcript, tape 1, page 56). In further elaboration, the applicant suggested that the police would not attach any importance to the complaints of a unionist. He also claimed that the police (in civilian clothes) were responsible for such physical attacks and that it was normal for people to be killed with a knife (transcript, tape 1, page 58).
When asked by the Tribunal to give the name of any unionist or leftist who had been seriously harmed or killed by the police in the last couple of years, the applicant initially spoke generally about police attempts to kill people participating in gatherings. When pressed by the Tribunal to give individual examples from the last couple of years, the applicant conceded that up until now the police had not killed anyone, although he claimed that people had been harassed and imprisoned. When asked to name someone from the left who had been incarcerated, the applicant suggested first that it would perhaps not be someone “well known or high up” because people with the highest profiles were not attacked (transcript, tape 1 pages 59-60). When pressed again for a name, the applicant gave the name of a member another left wing party (the MLN) who was said to have had been detained for 72 hours and beaten and then released without charge.
Later in the Tribunal hearing (transcript, tape 2, pages 32 – 34), in response to questioning about why claimed mistreatment of unionists was not being reported in the media or publicised, the applicant maintained that most of these activities were carried out undercover. The Tribunal stated to the applicant “what I am putting to you is that the evidence does not show that leftists are being persecuted in Uruguay” (transcript, tape 2, page 35). The Tribunal later referred to the possibility that the reason for the absence of publicity may be that such things were not happening to other people (transcript, Tape 2, page 40).
In the course of a conversation with the applicant’s migration agent about photographs of past protests (transcript, tape 2, page 39), the Tribunal referred to the fact that while four people had been arrested there was a need for evidence to support any claim that the problem was much more extensive. The applicant suggested that the left-wing government was not working as it had first promised (but that he did not have evidence of this). The Tribunal stated: “It would be much better if you take some time after the hearing to just make some inquiries and try to get some evidence that supports what you are saying is taking place” (transcript, tape 2, page 40).
The Tribunal member then suggested to the applicant that if seven days was not enough time, the member was happy to agree to 14 days, and that if at the end of that time the applicant was waiting for something to arrive that he thought was significant it would be helpful for the applicant to notify the Tribunal “because I have not made up my mind, it’s just that I don’t have enough evidence to be satisfied that the situation in Uruguay is as you have described it” (transcript, tape 2, page 41).
In this context it was submitted for the applicant that the Tribunal had failed to comply with s.424A of the Migration Act 1958 (Cth). In support of this contention a copy of an internal Tribunal document dated 22 June 2006 and headed “Research Response” and copies of Tribunal emails to the four Uruguayan organisations named in the particulars to this ground were tendered for the applicant. The internal document refers to a numbered research request from the Tribunal member bearing the Tribunal file number for the applicant’s review application. The research request is described as follows:
Background
The applicant claims to be a leftist activist in Uruguay and to be a longstanding member of the MPP and SUNCA. He claims that, both before and since the election of the leftist FA party, he has been the target of regular anonymous threats and a physical assault. It is claimed that there are elements within FA, and elements within the police force, which are behind this and other targeting of leftists.
Questions
Although I note that 4 people were arrested during a Summit of the Americas protest in Montevideo in November 2005, I have been unable to locate evidence that the type of sustained targeting and harassment described by the applicant is occurring. However, there seems to be little information about Uruguay.
1. I’d like information (preferably from other than the US State Dept.) regarding whether there are reports of targeting of any leftists/unionists since 2004 of the type described by the applicant
2. Would such reports be freely available in Uruguay? (For example, please advise whether there is genuine press freedom, and scrutiny by human rights groups).
The four emails of 26 June 2006 from the Tribunal researcher to organisations in Uruguay (including the MPP) each describe the Tribunal’s role and continue (with minor modifications) to explain that a member of the Tribunal was currently seeking information about the treatment of unionists and leftist activists in Uruguay since 2004 and would be most appreciative if the organisation could answer these questions:
1. Since 2004, are you aware of any attacks or harassment of union members or leaders in Uruguay by the government, military or police? [The email to the MPP refers to “leftist activists including members or leaders of the MPP”]
2. If so, please provide details.
The emails to the IESLU and SPJU also asked:
3. Since 2004 are you aware of any attacks or harassment of leftist activists including members of the MPP (Movimiento de Participación Popular) in Uruguay by the government, military or police?
4. If so please provide details.
All the emails stated:
Any information you provide may form part of the information used by the Tribunal to review applications for refugee status. The information and your organisation’s identity may be disclosed to applicants, their advisers, the Department of Immigration & Multicultural & Indigenous Affairs, or otherwise become publicly available. Please do not send any information to the Tribunal unless you agree to its use in this way.
Counsel for the applicant referred to the fact that the internal research request set out the applicant’s claims to be a member of the MPP and SUNCA, described his claims about the targeting of leftists by elements within FA and the police force and referred specifically to the fact that four people had been arrested during the Summit of the Americans protest. It was said to be relevant that, as had been discussed in the Tribunal hearing, the request also indicated that the Tribunal member had been unable to locate evidence that the type of sustained targeting and harassment described by the applicant was occurring and stated that there was little information about Uruguay and then asked for information as to whether there were any reports of targeting of leftists/unionists since 2004 and whether such reports would be freely available in Uruguay.
It was also pointed out that, while the four emails sent by the researcher to bodies in Uruguay addressed the issue of attacks on union members or leaders in Uruguay by the government, military or police, one of these emails was sent to the MPP itself (to which the applicant belonged), asking whether since 2004 the MPP was aware of any attacks or harassment of leftist activists including members or leaders of the MPP in Uruguay by the government, military or police and seeking details of any such conduct. On this basis it was submitted that the internal enquiry and emails related specifically to the applicant, particularly the email which was sent to the MPP, the political party of which he was a member and that the lack of response from the Uruguayan organisations to the Tribunal’s request was “information” within s.424A(1).
In its reasons for decision the Tribunal had observed that no reply had been received to these emails. It was submitted that one of the reasons for its finding that it could not be satisfied that under the present government it was “normal” for members of SUNCA and MPP to be attacked and killed in Uruguay was that this claim by the applicant was “not borne out by the evidence he submitted, nor by the evidence from the other sources to which [the Tribunal] referred above”. The Tribunal also stated: “There is no evidence before the Tribunal from SUNCA or the MPP themselves in support of this assertion”. It was said that this finding was a direct reference to the fact that emails had been sent to the four organisations (including an email to the MPP) and that no reply had been received.
It was submitted that in these circumstances there 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), consistent with what was stated by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [3] and [17] to the effect that “the reason or part of the reason” for affirming the decision under review was to be determined by reference to the criteria for the statutory class of visa sought by the applicant. In SZBYR it was said that the criterion was that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (see s.36 of the Migration Act). In this case the same criterion was in issue. This was said to involve a requirement that the applicant satisfy the Tribunal that he had a well-founded fear of persecution for reasons of his political opinion. (Also see SZBYR at [3]).
The applicant contended that the “information” in this case arose from the four emails sent by the Tribunal researcher on 26 June 2006 in response to the Tribunal member’s request. The “information” was said to be the fact that the Tribunal had caused enquiries to be made of the bodies referred to above (including the MPP of which the applicant was a member) but that it had received no response. It was submitted that as a result of the lack of response the Tribunal was able to infer that persons in the applicant’s position were not at risk of physical attacks because of their political activities. Hence the lack of any result from the enquiries was said to constitute “information” in s.424A(1).
Reference was made to NBKS v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 156 FCR 205 in which the Tribunal was said to have relied on the failure of a report by a clinical psychologist to address a particular matter in arriving at a finding adverse to the applicant. The information in that case was not merely an observable gap in the evidence in relation to a document obtained by the Tribunal. Rather, as Weinberg J observed (at [26]), Allsop J (with whom he agreed) was “of the view that the absence of any statement in [the psychologist’s] report regarding the likely behaviour of the appellant in a confrontational situation was not treated by the Tribunal merely as a “gap”, but as implicitly probative of the psychologist’s view that there was no such danger”. Weinberg J stated (at [38]): “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”. Hence the Tribunal used the omission in a way that went beyond and was distinguished from a “mere omission” (see SZCNP v Minister for Immigration & Multicultural Affairs[2006] FCA 1140). It was contended for the applicant that, as in NBKS, the Tribunal in this case had used the absence of information (the absence of any reply to the emails) in a positive way.
Mr Pounder referred to SZHPP v Minister for Immigration & Anor [2007] FMCA 1031 as an illustration of such positive use of an omission. That case related to the wife of a senior Chinese bureaucrat who claimed that her husband had been convicted of corruption and sentenced to death. She sought a protection visa. Her application was refused. In connection with her review application she claimed that her husband had been falsely charged. The Tribunal had regard to her failure to mention in the statutory declaration provided in connection with her protection visa application that her husband had been falsely charged in finding that the claim of a false charge was a ‘recent invention’. The Tribunal found that the applicant’s husband was “guilty” of the offence for which he was convicted.
Smith FM found that the Tribunal finding as to the guilt of the applicant’s husband pervaded “the whole of its reasoning when assessing the risk of the applicant being persecuted for a Convention reason were she to return to China” (at [24]) and that the information relied upon for that finding provided “the reason or a part of the reason” for the Tribunal’s decision to affirm the delegate’s decision within s.424A(1). His Honour was of the view that the applicant’s admission in her declaration that her husband had confessed and her failure to assert his innocence was such that a finding of recent invention and an admission of guilt was positively inferred from the omission by the Tribunal. Counsel for the applicant also pointed out that at [15] his Honour noted, but rejected, a submission that NBKS was in doubt following SZBYR.
Similarly, it was submitted that in this case there was a pervasiveness through the Tribunal’s reasons, in that the Tribunal had not only referred specifically to the absence of evidence from SUNCA or the MPP in support of the applicant’s assertion that it was normal for members of those organisations to be attacked and killed in Uruguay, but had gone on to state that if such serious human rights abuses were occurring it appeared that they would be reported, if not by the media then by human rights groups. It was in that context the Tribunal stated:
These organisations face no restrictions on reporting human rights abuses; and both SUNCA and the MPP could readily pass on information to them about problems facing their members. As they do not appear to have done so, and as the MPP have not responded to the Tribunal’s direct enquiries, I infer that activists within the SUNCA or MPP are not facing physical attacks because of their political activities.
It was said to be apparent that this information was a significant issue for the Tribunal and clearly a part of the reason for affirming the decision under review. It was also submitted that it could not be contended that the reason and the only reason the Tribunal affirmed the decision was that the applicant did not have a well-founded fear of being persecuted for reason of his political opinion in Uruguay, as this would give the concept “part of the reason” in s.424A(1) almost no work to do.
It was acknowledged for the applicant that the issue of the application of s.424A(3)(a) was probably more controversial. However, it was submitted that it could not be said that there was merely information about a class of persons of which the applicant was a member within the exception in s.424A(3)(a). Rather it was said that the information arose from a specific request arising from the applicant’s claims made to four relevant groups, including the political party of which the applicant had claimed to be a member.
It was not disputed that, as Counsel for the first respondent submitted, the concluding words of s.424A(3)(a) (“and is just about a class of persons of which the applicant or another person is a member”) do not impose an additional criterion that must be satisfied in order for information to fall within the exception, but are simply present to underlie the specificity required before the proviso to the exception operates and to avoid any suggestion that information is specifically about an applicant or another person because such person is a member of a class of persons to which the information in question relates (see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 ).

However it was submitted for the applicant that the Tribunal enquiry, the result of the emails and the lack of a response was “information” that was specifically about the applicant and not just about a class of persons of which the applicant was a member. It was contended that the information that the Tribunal caused enquiries to be made of a union of which the applicant was a member and received no response, arose from the entirety of the documentation and that this established that the context of the enquiry was that it was an enquiry made in response to a specific claim made by the applicant, most recently at the Tribunal hearing. On this basis it was said that the nature of the enquiry made by the Tribunal member was an enquiry about the applicant relating specifically to his case and his claim. Similarly, the precise nature of the enquiry made by the research officer (including contact with at least one of the bodies of which the applicant claimed to be a member) was said to indicate that the Tribunal was asking the very political party in which the applicant claimed to be a member for information about his claim that members were subjected to harassment or attacks.
It was submitted that this case differed from the cases relied on by the first respondent in relation to s.424A(3)(a), as it concerned a specific enquiry on a specific case relating to a specific person made to his political party. This was said to be sufficient to take the case outside the exception in s.424A(3)(a) of the Act.
Counsel for the applicant informed the Court that he had been unable to find authority directly in point involving a specific enquiry by the Tribunal in relation to a claim so directly relevant to a particular applicant. However in MZWFS v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 ALR 323 there was an indication in relation to country information that some parts of information might fall within the exception in s.424A(3) and other parts might not, depending not simply on the country information per se but also on the nature of the applicant. The applicant submitted that the High Court had established in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 that the absence of conduct in the hearing which was itself procedurally unfair would not overcome a failure to follow the procedural requirements in s.424A (and see SZBYR at [14]).
On this basis it was submitted that the Tribunal had erred in failing to provide the applicant with written particulars of this information for comment under s.424A.
The first respondent contented that the purported “information” was not information within the meaning of s.424A(1) as considered by the High Court in SZBYR at [17] – [21]. It was submitted that the approach taken in SZBYR suggested that s.424A should be given a much more restrictive operation than it had previously been given by the Full Court of the Federal Court in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214.
It was said that the joint judgment in SZBYR indicated that it was necessary to determine first what was the reason or a part of the reason the Tribunal came to the decision to affirm the delegate’s refusal (also see Kirby J at [85] – [86]). It was also said to be important that, as the majority judgment suggested at [17]: “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”.
In SZBYR, as here, the appropriate criterion was said to be found in s.36(1) of the Act and so in both cases the “reason or part of the reason” for affirming the decision under review was said to be that the applicants were not persons to whom Australia owed protection obligations under the Convention.
It was also suggested that in agreeing with the majority in SZBYR Kirby J took a similar approach. After indicating that the case before him was not a case in which the applicant’s claims had been disbelieved, his Honour stated (at [85] – [86]) that the Tribunal had in essence taken the view that, accepting the appellant’s claim in full:
[85] ……it still lacks the essential nexus to a Convention ground. It is a private dispute. As such, it does not attract the country obligations imposed by the Convention.
[86] Properly analysed, that was “the reason” and the only “reason” in this case for the tribunal’s decision.
Mr. Cleary for the first respondent pointed out that similarly in this case the applicant’s claims about what occurred in the past were not disbelieved (although the Tribunal did not accept his claims about the motivation for the 2005 attack). However the Tribunal rejected the claim that members of the class of persons to which the applicant said he belonged were subject to persecution in Uruguay.
It was said that the four “reasons” given for this conclusion in the Tribunal decision were not part of the reason for the decision but rather the thought processes of the Tribunal or the way it tested and rejected the claims made by the applicant. Such consideration had regard to the absence of evidence before the Tribunal from SUNCA or MPP in support of the applicant’s assertion that it was “normal” for members of such organisations to be attacked and killed in Uruguay. Hence the lack of a reply to the request for general information about such groups when tested against the applicant’s evidence, was said to be part of the Tribunal’s reasoning process in rejecting the applicant’s claims in the face of the evidence, as it emerged from independent country information.
It was submitted that this construction was consistent with the suggestion in SZBYR that the use of the future conditional tense in s.424A(1) meant that the operation of the section was determined in advance and independently of the Tribunal’s particular reasoning in the case. On this basis the information that would be the reason for the decision in this case was simply a rejection of the claim made by the applicant that he was at risk of being attacked or killed in Uruguay.
It was further submitted that even if the Court accepted that the purported “information” was information within the meaning of s.424A(1), the exception in s.424A(3)(a) was applicable on the basis that the asserted “information” relied on by the Tribunal was not specifically about the applicant or another person.
The circumstances were contrasted with those in NBKS. In that case the Full Court had considered that the fact that the Tribunal had carried out internet searches on the particular applicant’s name (and had not located any reference to his name) was information which enlivened the obligation in s.424A(1). While there was no discussion of s.424A(3), in NBKS it was suggested that this was presumably because the issue on appeal was limited to whether this was information that formed part of the reason for the Tribunal decision within s.424A(1).
It was submitted for the first respondent that in NBKS what was in issue was “Google’ searches made about a specific named person, whereas in this case the requests that were sent out were not about the applicant himself or indeed about any other specified person. Rather the emails were just requests made to a number of organisations about treatment of members of particular organisations. It was pointed out that there was no reference to the applicant in the emails, but just a reference to the current situation for unionists and leftists generally (a category of people to which the applicant belonged). The information was said to be general information about whether or not members of SUNCA and the MPP were attacked and killed.
It was also said to be significant that, in its reasons for decision, after outlining the evidence of the applicant, under the heading “evidence from other sources” the Tribunal referred to an absence of information. It observed that the US State Department Country Report on Human Rights Practices for 2005 (which it discussed at some length) did not refer to the MNLP or MPP. Further, after discussing the Amnesty International Annual Report on Uruguay released in 2005 the Tribunal stated: “No information on the targeting of leftists or unionists since 2004 was found amongst other sources consulted by the Tribunal”. It was submitted that it could be inferred that this was a reference to the absence of response to the Tribunal emails to the Uruguayan organisations.
In any event it was pointed out that the Tribunal subsequently referred specifically to the contact it had made with the four organisations and to the fact that no reply had been received “to date” to the request for views “on the current situation for unionists and leftists generally”.
It was noted that it was not disputed that it was well established that independent country information was within the exception of s.424A(3)(a) (see VHAP). Consistent with the reasoning in VHAP it was said that the mere fact that the applicant was a member of SUNCA or MPP, that the Tribunal sent an email to the MPP, that the MPP did not reply and that the Tribunal used that lack of reply in reaching its conclusion, did not mean that the exemption did not apply (Also see NAMW at [64] to [71], WAJW at [43] – [46], QAAC at [20] – [22] and VJAF at [13] – [15]). It was reiterated that the reference to a class of persons in the subparagraph was not another criterion to be met. (Also see SZIOF v Minister for Immigration and Citizenship [2007] FCA 1858 at [34]).

Reasoning

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). However, in NBKS Allsop J, with whom Weinberg J agreed, was of the view that, notwithstanding this principle, the absence of comment on how the applicant was likely to react on return to Iran in a psychologist’s report “was not merely taken as a gap, but was implicitly probative of [the psychologist’s] view that there was no such danger” that the applicant 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]). His Honour expressed the view that a s.424A letter should have pointed out that this was relevant to the review because it tended against the proposition that the appellant might behave in that way.
Similarly Weinberg J referred to cases that 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” (at [38] and see SZEEU, SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 and SZCNP v Minister for Immigration & Multicultural Affairs [2006] FCA 1140). While other cases concerned omissions from claims made by an applicant, in NBKS Weinberg J was of the view that such principles were applicable to omissions in other evidence before the Tribunal, at least where 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]). His Honour stated: “It makes no difference whether the omission is to be found in a prior statement of an applicant or … in a statement provided by a third party” (at [39]).
On this basis, a failure by a third party to respond to a Tribunal enquiry that is or (given the use of the future conditional sense in s.424A(1)) “would be” implicit probative support for a positive assertion detrimental to an applicant’s case can be characterised as more than a mere gap or “absence of evidence” (SZBYR at [18]) but rather as a positive use of “information” in the sense encompassed by s.424A(1)(a).
Thus in this case, consistent with the approach in NBKS, the absence of reply to the enquiry (at least from the MPP) could be used and indeed was used in a positive way, as implicitly probative of the conclusion that activists in Uruguay with the political profile of the applicant were not facing physical attacks because of their political activities. Hence it was more than a mere omission and constituted “information” in s.424A(1). As Allsop J suggested in NBKS at [74] in relation to the reference in the Tribunal decision to the absence of comment in the psychologist’s report, if the absence of any reply to the Tribunal emails did not have such positive significance for the Tribunal in this case then there would have been no point in the Tribunal mentioning this fact in its reasons for decision.
In contrast, in SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110 the Full Court of the Federal Court found that the inability of a third party to shed light on two matters raised with him by the Tribunal was “not probative of anything” where the “matters were neutral considerations in the Tribunal’s assessment of the first appellant’s case. It simply resulted in a gap in the evidence which did not support, or detract from, what the first appellant had put to the Tribunal” (Marshall J with whom Moore and Finn JJ agreed, at [44]). In those circumstances the Full Court found that such “gaps” in the evidence did not form any part of the reasons of the Tribunal for rejecting the review applications before it. However in this instance the absence of reply to the Tribunal enquiry was not simply a neutral absence of evidence. A positive use, adverse to the applicant’s case, was made of the lack of reply by the Tribunal (cf SZGSI at [44]).
Moreover on the authority before the Court, as Smith FM found in SZHPP, I am not persuaded that the High Court in SZBYR “has implicitly overruled the authority in NBKS” (at [19]) in relation to such circumstances, whatever its impact in relation to mere omissions or gaps in an applicant’s evidence (see SZGSI at [6] per Finn J and Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [65] – [77]).
In SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ did refer with approval (at [18]) to what Finn and Stone JJ stated in VAF at [24] and went on to state at [18]: “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”. However, this case (like NBKS) does not involve a mere absence of evidence from the applicant. The Tribunal did not simply disbelieve the applicant based on inconsistencies in his evidence (cf SZBYR at [18]). Nor did the applicant fail because even the best view of his evidence failed to disclose a Convention nexus (cf Kirby J in SZBYR at [85] – [88]). Rather, while the Tribunal accepted the applicant’s claims about certain past events (albeit not his claims about the reasons for the 2005 attack), he failed because the Tribunal was not satisfied that a person with the applicant’s background might now face a real chance of being seriously harmed in Uruguay because of his political opinions. It was on this basis that it found that the applicant did not have a well-founded fear of persecution for reasons of his political opinion. Part of the reason for this conclusion was the positive inference from the absence of a response by the MPP to the Tribunal enquiry. Taken together with the fact view that SUNCA and the MPP did not appear to have passed on information to human rights groups such as Human Rights Watch and Amnesty International about any problems facing their members, the Tribunal inferred from the absence of a response from the MPP to the Tribunal’s direct enquiry “that activists within SUNCA or MPP are not facing physical attacks because of their political activities”.
In these circumstances the Tribunal relied not simply on an “absence of evidence” but rather on the “existence of evidentiary material” (SZBYR at [18]) consisting of the enquiries it made and the absence of a response from the organisation to which the applicant belonged, which supported a positive finding about the absence of risk to persons with the profile of the applicant. The information relied on for that finding (including the positive inference from the absence of a reply from the MPP) provided the reason or part of the reason for the decision to affirm the delegate’s decision.
It is the case that the reason for affirming the decision under review was, in the broad sense considered in SZBYR (at [17]), that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention. However this involved an enquiry as to whether the applicant had a well-founded fear of persecution for a Convention reason. Even if what the reason “would be” is to be determined in advance and independently of the Tribunal’s “particular reasoning on the facts of the case” (SZBYR at [17]), where a positive inference as to the absence of a risk of future harm constituting persecution can be drawn from the fact that material on such risk was sought from but not provided by an organisation to which an applicant belonged, such “information” can be considered as information that the Tribunal considers “would be” part of the reason for affirming the decision under review within s.424A(1).
Moreover, the Tribunal’s use of such information in its decision cannot be said to be simply a step in its prospective (or actual) reasoning process as contended by the first respondent. I am of the view that the fact that the Tribunal contacted four Uruguayan organisations, including the MPP, for their view on the current situation for unionists and leftists in Uruguay and received no reply is “information” that formed part of the reason for the decision within the language of s.424A(1).
However I am satisfied that the obligation in s.424A(1) does not apply because of the operation of s.424A(3)(a). As the first respondent contended, the information was not specifically about the applicant or another person. Consistent with the authorities referred to by both parties, it cannot be suggested that information was specifically about the applicant merely because he was a member of MPP (one of the bodies that did not reply). This is not a case in which there was a failure to reply to an enquiry to an organisation about whether a named applicant was a member or about treatment of a specific person. The requests to the Uruguayan organisations, including the MPP, were for general information about the current situation for unionists and leftists in Uruguay.
The fact that the Tribunal made an internal enquiry about the risk to unionists and leftists (and MPP members) in the context of its review of the applicant’s application for a protection visa does not convert the information consisting of Tribunal contact with the Uruguayan organisations about the treatment of leftists and unionists and the absence of a reply (in particular from the MPP) into information “specifically” about the applicant or another person. Nor does the fact that the Tribunal used this information as part of the reason for affirming the decision under review.
In particular, the fact that the internal Tribunal research request referred to the applicant’s review file number and was made in the context of the review of a particular application does not enliven s.424A(1). First, the internal research request, while providing the context in which the request to the Uruguayan organisations was made, was not itself part of the information that the Tribunal considered would be the reason or part of the reason for the decision. Further, even if the internal request was within the language of s.424A(1) on the basis that the internal research request initiated the process of seeking information from the Uruguayan organisations, in that sense it was not specifically about the applicant. While it described his claims about past harm as part of the background to the research request and referred to his file number, the relevant part of the request related to whether there was information about any reports of targeting of any leftists/unionists since 2004 in Uruguay.

MZWFS does not assist the applicant. While some parts of an item of information might fall within s.424A(3)(a) (such as general country information) while others (for example information relating specifically to an applicant) might not, that is not the situation in this instance. Moreover, in NBKS the internet searches in question arose in the context of a claim that details about the appellant’s political activities in Australia were contained in a decision of the Administrative Appeals Tribunal (AAT) (in relation to whether he was liable to be deported as having committed serious offences in Australia) and hence would become apparent to the Iranian authorities. The Tribunal had carried out the internet searches on the appellant’s name. The Tribunal found that as the appellant’s name did not appear in any context when a “general keyword search” was done on the internet using Google and MSN search engines, the chance that the AAT decision would come to the attention of the Iranian authorities was remote (see NBKS at [67]). While all of the judges of the Full Court of the Federal Court found that such information was within s.424A(1), no mention was made of s.424A(3)(a). However the internet search sought information “specifically about the appellant” (Tamberlin J at [6]). No such specificity was present in this case in any of the requests to the Uruguayan organisations.
Accordingly s.424A does not apply to the information in question. The ground in the amended application is not made out. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 31 January 2008