SZJLE v Minister for Immigration

[2007] FMCA 970

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 970

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal relied on information that was not the subject of exceptions s.424A(3) and which should have been put to the applicants in writing pursuant to s.424A(1) – failure on the part of the Tribunal to comply with s.424A(1) constituted jurisdictional error – application allowed.

Migration Act 1958, s.424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

First Applicant: SZJLE

Second Applicant: SZJLF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2775 of 2006

Judgment of: Nicholls FM

Hearing date: 22 March 2007

Date of Last Submission: 16 March 2007

Delivered at: Sydney

Delivered on: 26 June 2007

REPRESENTATION

Counsel for the Applicant: Mr. J. F. Gormly (by direct access)

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. J. D. Smith

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. A writ of certiorari be issued quashing the decision of the second respondent.

2. A writ of mandamus be issued requiring the second respondent to redetermine the matter according to law.

3. The applicant’s to have leave to file and serve written submissions in relation to their application for costs by 5 July 2007.

4. The Minister to file and serve submissions in reply by 12 July 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2775 of 2006

SZJLE

First Applicant

SZJLF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed on 27 September 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 22 August 2006 and handed down on 5 September 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicants.

2. The applicants claim to be husband and wife and are nationals of the People’s Republic of China. The applicants’ claims derive from the applicant husband’s stated fear of harm arising from his Christian faith and its practise in China. The applicants sought review by the Tribunal on 20 April 2006 (the application for review is reproduced at Court Book (“CB”) 55 to CB 58). The applicants were represented by a migration agent, and both attended the hearing before the Tribunal on

   
   

   7 June 2006 and gave evidence, as did a witness on their behalf. The Tribunal’s account of what occurred at the hearing is set out in its decision record reproduced, at CB 97.4 to CB 102.7. Following the hearing, the Tribunal invited the applicants by letter to comment on certain information on two occasions. The first, dated 8 June 2006, is reproduced at CB 73 to CB 75. The second, dated 20 July 2006, is reproduced at CB 81 to CB 82. The applicants’ responses are at CB 76 to CB 80 and CB 83 to CB 84.

3. At the hearing before the Court, Mr. J. Gormly of Counsel appeared for the applicants and Mr. J. Smith of Counsel appeared for the Minister. Ultimately before the Court was a further amended application (undated), which amongst other things, asserted that:

   “That the decision of the Refugee Review Tribunal (‘the Tribunal’) was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s424A(1)(a) & (b) of the Act;”

   This was said to be in relation to the two letters sent by the Tribunal to the applicants pursuant to s.424A of the Migration Act 1958 (“the Act”).

4. The applicants had also served a Notice to Produce on the first respondent. Following production of relevant documents, which were communications between the Minister’s Department and the Department of Foreign Affairs personnel in China, I marked these documents as the three pages of a Supplementary Court Book (“SCB”).

5. Following production of these documents, Mr. Gormly submitted that he did not press the applicants’ complaints in relation to the second s.424A letter (that is, ground 3 in the further amended application). Nor was the stated ground 2 pressed in submissions to the extent that it may have gone beyond what was set out in ground 1.

6. The applicants’ complaint therefore, is that the Tribunal, in the making of its decision, relied on information concerning investigation by the first respondent’s Department with the “post” (the relevant Australian mission in Guangzhou in China). The applicants complain that this information was relied on by the Tribunal and, as it was not information provided by the applicants, but obtained from the Minister’s Department, it should have been put to the applicants pursuant to ss.424A(1) and (2) for their comment. This was with reliance on SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214.

7. To properly understand the applicants’ complaint it is necessary to consider the following extract from the Tribunal’s “Findings and Reasons” (CB 109.9 to CB 110.5):

   “The Tribunal does not believe that the couple are named [the male applicant] and [the female applicant], nor that they are married. The Department received information that a [name claimed by the female applicant] arriving on the day that the applicant arrived was not who she claimed. When this was investigated with the post which issued visas it became apparent that there was a real issue as to her identity.

   In an attempt to prove their identity, the applicants presented to the Department documents which are not reliable and, in the Tribunal’s view, have been fabricated to assist their claims to these false identities. Beyond asserting the claimed genuineness of the documents, the applicants have not addressed why it would appear to a document examiner that the photograph associated with their marriage certificate is, in fact, a composite image nor why the remaining documents do not possess features which are familiar to the examiner to guarantee security. The examination undertaken by the Department appears thorough and reasoned and the Tribunal believes that it supports the conclusion that the documents are not genuine.

   While the parties have asserted that they wish further checks to be undertaken in respect of their identities, in the Tribunal’s view this is not necessary. The available material leaves the Tribunal certain that they are not who they claim and that they have not been truthful regarding their past experiences.

   It is notable that when the issue of identity was put before the Department, relevant checks immediately suggested this was really in issue. Furthermore, when the parties have been given the opportunity to provide further documents, these too have been found to be deficient.”

8. The issue for the Court is whether, as a part of its reasons for affirming the decision under review, the Tribunal relied on information (which was not subject to the exceptions set out in s.424A(3) of Act) and which should have been put to the applicants in writing pursuant to s.424A(1) of the Act. Mr. Gormly’s submission was that the investigation “with the post” and “relevant checks” was such information and that the Tribunal’s failure to put such information to the applicants in the way required reveals jurisdictional error in its decision.

9. Mr. Smith’s submission was that the investigation “with the post” and the “relevant checks” were not part of the reasons for the Tribunal’s decision. His submission was that the Tribunal’s mention of investigations with the post and relevant checks was only a “narrative link” between the two pieces of information on which the Tribunal actually relied. The issue of identity first arose with the provision of the anonymous information relating to the identity of the female applicant (the “dob-in letter”). There was some subsequent investigation of this “dob-in” information. But the reason for the Tribunal’s decision was that the issue of her identity was resolved when the applicants provided documents which the Tribunal rejected. These were the documents referred to in the extract above and which were subject to professional document examination. Mr. Smith emphasised that as part of the Tribunal’s reasons, the basis for its decision was that the applicants produced fraudulent documents. Noting, incidentally, that the Tribunal found that the passports were not fraudulent but the marriage certificate and the identity card documents were found to have been fabricated, with a view to supporting an identity which was not the applicants’ real identity.

10. I do not accept this view of the Tribunal’s analysis. The Tribunal’s relevant finding was that it did not accept that the applicants were who they said they were, and did not accept that they were married.

11. This Court is clearly mindful of what the High Court said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (a decision handed down after the hearing of this matter) and in particular at [22] of SZBYR regarding the “limited scope of s.424A” and the “proper meaning of the word “reason” in s.424A(1)(a)”. As the Court set out at [21], the “limited operation” of s.424A of the Act is that it obliges the Tribunal to put to the applicants “information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review”.

12. In this context, the Tribunal itself saw the “dob-in” information as being information that was a part of the reason for affirming the decision under review. This is plain because the Tribunal itself put such information to the applicants by way of its letter of 8 June 2006, as relevantly reproduced at CB 74.3. In this letter, the Tribunal wrote to the applicants and advised that the Minister’s Department had received information from an unidentified person that the female applicant arrived in Australia using an identity that was in fact the identity of another person and that she had assumed this identity. The Tribunal explained to the applicants the relevance of this information to its decision. That is, that it went to the applicants’ truthfulness, the truth of their claims of past experiences, and also, that they had not been truthful about their arrangements for their departure from China.

13. The Tribunal also saw as information relevant to its decision, the information that the Tribunal obtained from the Minister’s Department (that is, information from its “document examination section”), which had reached the conclusion that the applicants’ identity card documents and a booklet of marriage were “counterfeit”. This information was also was put to the applicants by way of the letter of 20 July 2006. The Tribunal explained (CB 82.2) that this information may support a conclusion that the applicants were not who they claimed to be, that the claims regarding their identity had been fabricated, and that they had provided “counterfeit information” to support their application.

14. The Tribunal, however, has not put to the applicants the information that the “dob-in” was “investigated with the post” which issued the visas. This was not information provided by the applicants for the purpose of the review, nor was it information that could be said not to be about a particular person. It is therefore information which does not fall within the exceptions set out in s.424A(3) of the Act.

15. The issue remains, however, whether the information now before the Court in the form of a Supplementary Court Book (SCB 1 and SCB 2), that is, information relating to the investigation with the post, is information that was a part of the Tribunal’s reasons for affirming the decision under review.

16. While this Court is obviously mindful of what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272), that “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error,” a plain reading of the Tribunal’s decision record, in my view, reveals that the information before the Tribunal, that an investigation had taken place by the Minister’s Department with the overseas post, was a part of the reason for its decision. The Tribunal itself says that it was apparent following the investigation with the post that there was a “real issue as to” the identity of the female applicant. This conclusion, that is, that there was a real issue as to her identity, is not itself information (see SZBYR at [18] and its endorsement of what was said per Finn and Stone JJ. in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476 to 477).

17. But this is to be distinguished from the basis (that is, the information) upon which the Tribunal reached this conclusion. That is, the information that there was an investigation with the post concerning the applicant’s identity. The Tribunal itself stressed the importance of this information. It needs to be understood that the information was that there was an investigation with the overseas post and this was stated to be in the context of there being a real issue as to the (female) applicant’s identity. This was emphasised by the Tribunal itself, not only in what it said at CB 110.1 (see extract [7] above), but when it further stated that it was “notable” that when the issue of identity was put before the Department, “relevant checks,” immediately suggested that “this was really in issue”.

18. Mr. Smith submitted that the reason for the Tribunal affirming the decision under review in relation to the issue of identity was based on information provided by the Minister’s Department relating to the counterfeit documents. The Tribunal itself, however, has, with the use of the word “furthermore” (at CB 110.4), noted two sets of information as being relevant. Certainly, when the applicants were given the opportunity to provide further documents, these were found to be deficient, but the issue of identity was “really in issue once relevant checks (in context including with the overseas post) immediately suggested this to be the case”.

19. In all, therefore, I do not agree with Mr. Smith that the reference to “dob-in” letter and the check with the overseas post was merely “narrative” leading up to the Tribunal’s finding that the documents which the applicants presented in support of their claimed identity were counterfeit. The Tribunal, in reaching the view that the applicants were not who they claimed to be, certainly relied on information that the documents were counterfeit. But in my view, on a plain reading of its decision record, it also relied on information obtained by the Minister’s Department by way of the “dob-in” letter (which was properly the subject of a s.424A letter) and (critically in the context of the applicant’s complaint now) on information that this “dob-in” letter was investigated with the overseas post. The Tribunal formed the view that it then became apparent following such an investigation that there was “a real issue as to her identity”. The information that there was an investigation with the overseas post is not such as to fall outside the “limited scope of s.424A”. Even within such a scope, this was information on which the Tribunal relied, in part, for affirming the decision that was under review. It should have been put to the applicants for their comment in writing. It was not. The Tribunal’s failure in this regard amounts to jurisdictional error. I can see no other reason before me not to provide the relief sought by the applicants and will make orders accordingly, returning the matter to the Tribunal for reconsideration.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Amy Douglas-Baker

Date:  26 June 2007