SZJZO v Minister for Immigration

[2007] FMCA 865

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJZO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 865

MIGRATION – RRT decision – Tribunal disbelieved claim first made at hearing – whether used ‘information’ as to an omission from the protection visa application – whether information as to timing of claim also given to Tribunal at hearing – no failure under s.424A established – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(b), 474, 476

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
SZCNP v Minister for Immigration & Multicultural Affairs [2006] FCA 1140
NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Applicant: SZJZO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG38 of 2007

Judgment of: Smith FM

Hearing date: 29 May 2007

Delivered at: Sydney

Delivered on: 29 May 2007

REPRESENTATION

Counsel for the Applicant: Mr R Killalea

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG38 of 2007

SZJZO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 5 January 2007, which has been set down for a final hearing on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 November 2006 and handed down on 19 December 2006. The Tribunal affirmed a decision of the delegate made on 27 July 2006, refusing to grant a protection visa to the applicant.

2. The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to remit the matter unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

3. The applicant arrived in Australia in May 2006, and on 21 June 2006 he lodged an application for a protection visa.  His application stated that he had not received assistance.  It made very brief and general statements as to why he sought protection in Australia against return to his country of nationality, Pakistan:  

   40Why did you leave that country? 

   I left Pakistan because I was belonging to an anti government political party, “Muslim League (Nawaz Sharif Group)”. 

   41What do you fear may happen to you if you go back to that country? 

   If I go back to my country I have the fear of being arrested by the government.  The government will beat me badly even they will not care if I leave this moral world forever.  I do not want to leave this moral world un‑attended.  I want to do something for the batterment of human‑being before leaving this moral world.  Once you have to come here and never again.  So I want to keep myself away from such things which will give me repentance at the time of death. 

   42Who do you think may harm/mistreat you if you go back? 

   If I go back the ruling government i.e the non‑democretic allience will arrest me and will panalise me physically as well as mently. 

   43Why do you think this will happen to you if you go back? 

   I think that all this can happen because our manifesto contradicts with them.  I am in the favour of democracy & the government and all their favourers are against it.  I have the only fault/guilt that I belong to such a party, “Muslim League N” which wants democracy and is in the favour of it. 

   44Do you think the authorities of that country can and will protect you if you go back?  If not, why not? 

   The authorities of the government will never protect me if I go back to Pakistan because I can not change my mind.  I can not change my opinion & I can not leave the truth; all these things pinch them.  They will not give me protection because it is not given even to our great leader: Mian Nawaz Sharif.  He had been forced to leave the country.  If I go back to my country they will arrest me and will make false/bogus trials and to avoid all this litigation I shall never go back to my country.  What I had listened/learnt about Australia it is more than that.  So there is no need to go back to such a place where truth is unsafe and one has to face injustice. 

4. No further details of these claims were given to the Department, and no corroboration was given either to the Department or to the Tribunal on appeal. 

5. The delegate refused the application essentially on the ground: 

   The applicant has not substantiated that he holds a Political Opinion that is not tolerated in Pakistan.  However, he maintains that the Government of Pakistan will persecute him.  The evidence before me is that the Government of Pakistan issued the applicant with a legal passport in his own name, without apparent problem, on 24 August 2005.  The applicant did not use his passport until 2006 which indicates that he was not the subject of a First Information Report (FIR) issued by police against the applicant.  The fact is that he departed Pakistan without apparent problem therefore I do not accept that, on return, he would face bogus charges against him.  

6. The applicant attended a hearing on 26 October 2006, to which he was invited by the Tribunal.  Neither party has tendered a transcript setting out the course of the hearing, but the Tribunal gives a description of it in its statement of reasons, and I have no reason not to accept that description. 

7. The applicant gave the following evidence concerning his reasons for leaving Pakistan: 

   The applicant said that he has left his country because there is “no solution”.  He said he will be arrested and punished if he returns to Pakistan.  When he left Pakistan he decided that he would not return unless the circumstances were more favourable to him.  He decided to leave his country because he worked for the Muslim League and the government ruling is “against us”.  The applicant said that has forced him to leave his country and his main problem is his name.  He said that the government he fears came into power in 1999 and is still in power.  He claims that he was interrogated and asked about [his] family name.  The Tribunal asked the applicant what caused him to leave his country in May 2005 given that he had been living and working there all his life.  The applicant said that the government changed and he was called into the station and there was a “false trial”.  He said he did not remember the date but stated that it was “quite frequent” and they kept calling him in.  The Tribunal asked him when these things occurred. He said it was in 1999 and he was arrested and imprisoned for one month and then released.  He said that after he was released he was teased/harassed a lot.  The Tribunal told the applicant that it had to decide whether he was telling the truth about his claims.  The applicant then said that these things happened October 28 or 29 in 1999.  The Tribunal asked the applicant how many times he had been arrested and he said, “Many times; there were instructions from the government to get me”. 

   The Tribunal told the applicant that in its view it was inconsistent with his claims that he was persecuted in his country, that he was living in the family home and working in his country as he had described to the Tribunal earlier in the hearing.  The applicant said that he was prosecuted and they do not keep records of the trials.  The trials took place in May 2000.  He was captured and tried and this happened many times.  He said that he took retirement in April 2000 as a result of being detained.  Although his wife and family are still living in the family home in Pakistan they are able to do that because nothing was said to them as he is the active one. 

   The Tribunal asked the applicant when he was last was captured and tried in Pakistan.  He said that was in December 2005.  The applicant told the Tribunal that the first time he has told anyone in connection with his application for protection that he was captured and tried in Pakistan was “today”.  The applicant said that he was imprisoned in Pakistan was for a whole day/whole night and it was “unofficial”.  He said that this happened many times.  The applicant said that if he returns to Pakistan he will be teased/harassed and penalised and that it is better to commit suicide.  (emphasis added) 

8. The Tribunal gave the applicant more time to present corroborative evidence before the Tribunal handed down its decision, but he did not take that opportunity. 

9. Under the heading “Findings and Reasons”, the Tribunal said that it did not “accept that he was arrested/detained as he claims by authorities/police in his country or that there were trials/false trials against him”.  The Tribunal said that the reason for that finding was that “it does not accept that he is a witness of truth”.  The Tribunal explained its adverse credibility finding:  

   The Tribunal does not consider that it is consistent with the applicant’s claims that he was persecuted in his country that he continued to live at the family home with his family where he had lived for many years since childhood according to his oral evidence and that he worked in his usual job, in fact two jobs for a period, while he was in Pakistan until he left to come to Australia.  This was his evidence to the Tribunal.  The Tribunal also considers that if the applicant had been captured and tried in relation to false allegations against him on many, or any, occasions in Pakistan before he left there, as he claimed at the hearing he was, he would have mentioned it before the Tribunal hearing.  His oral evidence to the Tribunal at the hearing was that the first time that he has mentioned this was at the Tribunal hearing.  Further, given the seriousness of these claims, in the Tribunal’s view if the applicant had been taken by police and tried for false allegations against him “many times” he would have been able to recall generally when these events took place.  It was only when pressed by the Tribunal that the applicant told the Tribunal he was detained/tried on 28/29 October 1999 and in May 2000 and last detained in December 2005.  The Tribunal does not accept as true that the applicant was questioned, detained or tried on any occasion in Pakistan for the reasons that he claims.  It finds that these claims were invented by the applicant to assist his application for protection visa.  (emphasis added) 

10. The applicant presents one ground of review to the Court in an amended application, which has been addressed today by the applicant’s counsel.  It is: 

    1.The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT failed to comply with s.424A of the Migration Act 1958.

    Particulars 

    The RRT found (CB 76.2) 

    “The Tribunal also considers that if the applicant had been captured and tried in relation to false allegations against him on many, or any, occasions in Pakistan before he left there, as he claimed at the hearing he was, he would have mentioned it before the Tribunal hearing.” 

    The RRT did not raise that issue with the Applicant as required by s.424A. 

11. In support of the ground, counsel relied upon statements of Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [221]:

    221I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 at [19]‑[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). (emphasis added) 

12. Counsel submitted that one of the Tribunal’s reasons for rejecting the applicant’s claim that he was “captured and tried in relation to false allegations”, showed that it relied upon “the fact” that “if what is now being asserted at the hearing is true it would have been in the prior statement in that form” within the above principles.  Counsel’s submission required me to read the Tribunal’s statement: “he would have mentioned it before the Tribunal hearing”, as equivalent to a statement: “he would have mentioned it in his visa application submitted to the Department of Immigration”, so as to draw upon information found in the visa application.  

13. However, in my opinion, it should not be understood in those terms, and the Tribunal has not followed the path of reasoning identified by Allsop J in SZEEU as showing reliance upon information requiring service of a s.424A(1) notice.

14. The circumstances in which reference to an “omission” will give rise to obligations under s.424A(1) has recently been explained in the Full Court in NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174 in a manner which does not broaden the propositions made by Allsop J in SZEEU.  A distinction was referred to by Weinberg J in NBKS, when referring to a judgment of Tamberlin J: 

    38To the same effect is SZCNP v Minister for Immigration and Multicultural Affairs [2006] FCA 1140. There Tamberlin J rejected a submission on behalf of the Minister that the term “information” in s 424A did not encompass a failure to mention a matter to the Tribunal. His Honour noted that in the instant case the matters raised in the original application had been used by the Tribunal to suggest recent invention by the appellant. That meant that the Tribunal used the omission in a way that went beyond “mere omissions” in the sequence of facts presented by the appellant. 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.

    39It seems to me that each case must depend upon its own particular circumstances. There is no reason in principle why an omission (which the Tribunal views as important, and which is plainly adverse to the applicant’s case) should be treated any differently, when it comes to s 424A, than a positive statement. That is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant’s case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party.

15. Justice Allsop’s own judgment in NBKS with which Weinberg J agreed at [74], identified in the Tribunal’s reasoning in that case a failure to comply with obligations under s.424A(1) by reason of the Tribunal having drawn adversely from the “form” of the doctor’s report in question. His Honour said:

    74…  That is, the absence of such a statement in Dr Nair’s report was taken by the Tribunal as supportive of the conclusion that he would not behave in that way, implicitly a relevant proposition as to how the appellant would behave upon return to Iran was being extracted from the form of Dr Nair’s report.  …  Here, the absence of something in Dr Nair’s report was not merely taken as a gap, but was implicitly probative of Dr Nair’s view that there was no such danger.  If the form of Dr Nair’s report (including what it did not say) did not have this significance for the Tribunal there would have been no point in mentioning it. 

16. In the present case, the Tribunal’s reasoning makes no reference to the applicant’s protection visa application, nor to the form of the statements made by him in that application.  The Tribunal does not in its reasoning draw a conclusion from the omission of something which the Tribunal expected to be in that document.  Rather, its reasoning is based upon the chronology of the making of the claim, being the information that the claim was made for the first time at the Tribunal’s hearing. 

17. On the actual language of the Tribunal’s reasoning, it has reasoned only from the time when the applicant presented to the Tribunal his claim to have been captured and tried in relation to false allegations. Its reasoning about that information might then appear to be purely “thought processes”, so as not involve the use of “prior information” capable of falling within s.424A(1) at all. In the language of Tamberlin J in SZCNP to which Weinberg J referred in NBKS, the Tribunal has made reference only to “‘mere omissions’ in the sequence of facts presented by an [applicant]”.  A similar analysis was suggested in Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [19]:

    19In the circumstances, the fact that the appellant failed to make this allegation at some earlier date is not “information” within the meaning of s 424A(1). The word “information” does not encompass a failure to mention a matter to the Tribunal: WAGP (2002) 124 FCR 276 at [26]. It was open to the Tribunal to comment on the bare fact of the lateness of this particular allegation as part of its process of reasoning towards the conclusion it reached (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592), this being a fact of which the appellant was equally aware.

18. On this approach to the challenged passage of the Tribunal’s reasoning, a breach of s.424A(1) is not made out.

19. Moreover, I also accept the alternative submission of counsel for the Minister, presented upon the assumption that the Tribunal’ s statement is to be understood as referring to “information”, being an omission from the protection visa application.  His submission was that the information used by the Tribunal was also expressly given to the Tribunal by the applicant at the hearing.  

20. As the Tribunal recounted in the extract above: 

    The applicant told the Tribunal that the first time he has told anyone in connection with his application for protection that he was captured and tried in Pakistan was “today”. 

21. It may be that the Tribunal’s reasoning drew that information also from having perused the Department’s file and the visa application in particular, but in my opinion it did not draw from its perusal of the file any additional information which was not also given by the applicant to the Tribunal for the purposes of his application.  

1. In my opinion, the Tribunal’s reasoning from this information falls clearly within authorities which identify oral statements made by an applicant to a Tribunal as conveying information which then falls within the exclusion of the obligation under s.424A(1) provided in s.424A(3)(b) (see NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195). I am therefore not persuaded that the Tribunal relied upon any information which was not “given” by the applicant to the Tribunal.

2. For the above reasons, I am not satisfied that the ground of jurisdictional error argued succeeds, nor that the Tribunal’s decision is affected by any jurisdictional error.  It therefore is a privative clause decision, and I must dismiss the application.  

I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  8 June 2007