SZKLG v Minister for Immigration
[2007] FMCA 1460
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1460 |
| MIGRATION – Review of the Refugee Review Tribunal's decision – refusal of a Protection (Class XA) visa. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 424B, 424C, 425, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333 Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZKLG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1085 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly (on a direct access basis) |
| Counsel for the First Respondent: | Ms V McWilliam |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 29 March 2007 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1085 of 2007
| SZKLG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act1958 (Cth) and has been given the pseudonym “SZKLG”.
These proceedings were commenced by an application under s.39B of the Judiciary Act1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney registry of the Federal Magistrates Court of Australia on 29 March 2007 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 5 March 2007 and forwarded to the applicant in immigration detention on
6 March 2007. It affirmed a decision of a delegate of the first respondent made on 5 January 2007, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent’s solicitors was filed and served on 16 May 2007. I have marked it Exhibit "A" and it was read into evidence. During the hearing of 3 August 2007, a supplementary Court Book was tendered and I have marked it Exhibit “A2”.
The applicant filed an affidavit of Sue Archer, Court reporter, affirmed on 20 July 2007. Attached to this affidavit is a copy of the transcript of the Tribunal hearing held on 16 February 2007.
Background
The Tribunal decision of A Mullin, reference 071089026, provides the following background information:
The Applicant, who claims to be a citizen of China (PRC) arrived in Australia in February 2005 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 7 December 2006, after he had been placed in immigration detention. The delegate decided to refuse to grant the visa on 5 January 2007 and notified the Applicant of the decision, of his review rights, by fax dated 5 January 2007 and faxed on the same day.
The applicant applied to the Tribunal on 11 January 2007 for review of the delegate's decision.(CB 115)
Mr Gormly, for the applicant, provides in paragraph two of his written submissions additional procedural history and further background information:
2 The applicant, a male, was born on 4 September 1964. He is a citizen of the People's Republic of China from Tianjin. He has travelled to Australia twice. He first arrived in Australia on 22 October 1994. On 13 November 1994 he lodged a protection visa application. He said he relied on a friend for the contents of the application and did not know its contents (CB 31.5 and transcript 31.7). The applicant claimed he feared persecution as the leader of the Ethnic Korean Political Party seeking freedom and independence for the Korean autonomous area in China. On 4 December 1996 a delegate refused to grant the applicant a protection visa. On 2 December 1997 the Refugee Review Tribunal affirmed the delegate's decision and on 22 April 1998 the Federal Court dismissed an application to it in respect of the Tribunal's decision.
3 On 15 June 2004 the applicant was placed in Immigration detention and in December 2004 the applicant was removed to China under an alias.
Application for Review of the Tribunal's Decision
On 29 March 2007, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made on the first Court date, the applicant filed an amended application on 9 July 2007. At the commencement of the hearing, Mr Gormly sought leave to file a further amended application which addressed an error in the amended application. The grounds for review in the further amended application are as follows:
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 s.424A(1) & (2) of the Migration Act 1958:
i)In relation to the following information:
a.Information on the applicant's departmental file being a record of an interview with the applicant in June 2004 in which the applicant indicated he was prepared to return to China and the only reason he did not leave Australia was that he had health problems.
b.Information of the applicant's department and tribunal files indicate that the applicant first applied for a protection visa in November 1994 claiming fear of persecution in China as the leader of a political organisation fighting for freedom and independence of the Korean Autonomous Area. The claim was repeated at different levels in considerable details.
c.Information on the applicant's departmental file indicating that the applicant use a name of Chen Jie as aliases in Australia.
d.Information on the departmental interview on 21 December 2006 being questions from my departmental officer and responses from the applicant about the applicant's treatment during his detention in China in 2004.
ii)The information in (a)(i) above was used by the Tribunal as part of the reasons for affirming the decision under review.
Particulars
·The information was used by the Tribunal in its finding that it was not satisfied that the applicant was a genuine Falon Gong practitioner who was concerned over the possibility that his activities had been monitored by informers.
iii)The information in i) b. and c. above was used by the Tribunal as part of the reasons for affirming the decision under review.
Particulars
·The Tribunal found that the information raised doubts about the credibility of the applicant's claims and the truth of other information provided to the Tribunal
iv)The information in i) a. - d. above was not given by the applicant for the purposes of his application for review and therefore s.424A(3)(b) does not apply.
v)The Tribunal did not give written notice prior to the hearing of its intention to use the said information as part of the reasons for its finding against the applicant.
Submissions and Reasons
Mr Gormly submits that the Tribunal did not comply with s.424A of the Migration Act, in that it used information it had about the applicant and not part of the application for review, as part of its reasons for affirming the delegate's decision. It also did not give written notice to the applicant prior to the hearing. Had the "Invitation to Comment" letter been sent prior to the hearing, the Tribunal would have complied with s.424A. Mr Gomly submits that where evidential material or documentation contains a rejection, denial or undermining of the applicant's refugee and when that information is known to the Tribunal prior to the hearing, compliance with s.424A requires that it give the particulars required by s.424A(1)(a) prior to its hearing: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17] - [19].
Mr Gormly submits that this proposition is supported by:
a)the language of the section, "(t)he 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": SZBYR at [17];
b)the structure of Part 7, Division 4 of the Migration Act which provides for procedures to be followed regarding the issue of a notice pursuant to s.424A before a hearing, notably in the sequential operation of ss.424A, 424B, 424C(2) and 425(2). No such procedure exists for the invocation of s.424A after a hearing: SZBYR at [19];
c)The purpose of s.424A is to secure a fair hearing: SZBYR at [19].
Mr Gormly further submits that s.425 of the Migration Act contemplates that the Tribunal gives the applicant adverse material, and invites comment upon it, before the applicant is invited under s.425 to appear before it, or the Tribunal exercises its discretion not to invite the applicant to appear: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [52] per McHugh J.
Mr Gormly submits that there is an apparent conflict between SZBYR and SAAP over the time for compliance with s.424A. SZBYR contemplates that time for compliance must be before the Tribunal hearing, while SAAP contemplates it can be both before and after the hearing. The sequential reading of the provisions of Division 4, Part 7 preferred by six Justices in SZBYR at [19] means that obligations under s.424A can arise only prior to the hearing.The non‑sequential reading of Division 4, Part 7 preferred by McHugh, Kirby and Hayne JJ in SAAP allows an ambulatory operation to s.424A which continues to operate in respect of information received during the hearing. Mr Gormly submits that his proposition at [9] above is supported by SZBYR and SAAP at [56].
The sequential reading of the provisions of Division 4 Part 7 of the Migration Act in SZBYR at [19] states:
Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.
Whereas the broader ambulatory operation of s.424A in SAAP at [56] states:
In addition, s 424A "is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision" under review. The Tribunal may not realise that information it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing. It would seem to be contrary to the requirements of procedural fairness if the Tribunal were not required to invite the applicant to comment on such information (that is found to be adverse to the applicant) simply because the Tribunal has already invited the applicant to appear before it.
While Mr Gormly acknowledges the apparent conflict between these authorities, he contends that in circumstances where information of the type discussed at [9] above is known by the Tribunal prior to the hearing, s.424A is enlivened only when the Tribunal has information and has determined that the information would be the reason, or part of the reasons, for affirming the decision under review: SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252 at [48] (referring to VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678 at [31] per Gray J and Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 at [59] per Hill J). The Tribunal may not realise that information it has observed from a third person will form the reason or part of the reasons for affirming the decision until after the applicant has appeared before it. Information obtained from the hearing may only become such information after the applicant has responded to questions at the hearing
Mr Gormly submits that the information described in the further amended application was of such a nature that it cannot be said that it only became relevant during the hearing. He submits that this submission is supported by the Tribunal's own description of the information and its relevance in its "Invitation to Comment" letter and the way it ultimately used the information in its decision.(CB 103-104)
The Tribunal application was sent by the applicant’s solicitors on 11 January 2007.(CB 64-68) The Tribunal issued an acknowledgement letter on the same date.(CB 72-73) The invitation to the Tribunal hearing was issued on 1 February 2007.(CB 79-80) The Tribunal hearing was held on 16 February 2007 while the “Invitation to Comment on Information” letter was forwarded on 19 February 2007, three days after the hearing.(CB 103-104)
Mr Gormly submits that the nature the way each piece of information was used and put to the applicant at the hearing supports a finding that prior to the hearing, the Tribunal had determined the information would be the reason, or a part of the reason, for affirming the decision under review. It is submitted, however, that the Tribunal withheld the information until the hearing and sought to "add value" to it by putting it to the applicant without prior notice of its relevance. Part of the obligation of s.424A(1)(b) is that the applicant must be made aware of the significance of the information, see Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [40]-[41]:
40 An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate's decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-63.
41 For the above reasons the construction the primary judge and I regard as correct gives effect to the beneficial purpose of s 424A of affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the RRT proposes to act, the significance of which the applicant may be unaware. It is consistent with that purpose to take a narrow, rather than a broad, view of the exceptions in s 424A(3).
Mr Gormly identified four central pieces of information in the Further Amended Application.
a)The June 2004 Departmental interview;
b)The November 1994 Korean claims;
c)The use of "Chen Jie" as an alias;
d)The December 2006 Departmental interview.
With respect to information (a) above, Mr Gormly submits that the Tribunal had regard to the applicant’s statement that the only reason he could not leave Australia was due to his health. It was not satisfied that the applicant had practiced Falun Gong from 2002 and was concerned that his activities were motivated by informers.(CB 130.5) With respect to information (b), the Tribunal considered that the 1994 Korean claim raised doubts about the credibility of the applicant’s current claims.(CB 129.3) With respect to information (c), the Tribunal considered that the applicant’s willingness to use false names to Departmental officers also raised doubts about the credibility of the information he provided.(CB 130.3) With respect to information (d), the Tribunal did not ultimately use the information about the 2006 Departmental interview in its decision because it accepted the applicant's explanation that he was confused at the time. However,
Mr Gormly submits that the s.424A letter showed that the Tribunal did consider the information relevant, even apart from the comparison with the second account at the hearing.
Mr Gormly argues that the information was sourced from Departmental files and not from anything the applicant or his agent stated in his Tribunal application for review, the statutory declaration attached to his protection visa application (CB 31-32), or his written submissions to the Tribunal (CB 91-92), or at the hearing itself. Therefore, s.424A(3)(b) does not apply. The term "application" in s.424A(3)(b) means application for review by the Tribunal: SZEEU per Moore J at [9], Weinberg J at [154], and Allsop J at [184]. The Tribunal is not exempt from its obligations under s.424A by merely putting information to the applicant derived from sources not part of the application for a review. This is so even if the applicant adopts the information in "cross-examination": SZEEU at [157] per Weinberg J.
Mr Gormly argues that the information must be put forward by the review applicant "in-chief" for the exception in s.424A(3)(b) to be enlivened, and he relies on NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 at [36]-[39] per Jacobson J:
36 Gray J’s approach appears to draw comfort from what was said by their Honours in Al Shamry. If applicants for review by the RRT themselves put forward to the RRT information taken from the protection visa application then such information is "information... that the applicant gave for the purpose of the application" in the RRT. It then falls within the exception in s 424A(3)(b). Such information would be information "the significance of which the applicant may be unaware"; per Merkel J at [40].
37 Thus, on Gray J’s approach information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the RRT falls within the exception in s 424A(3)(b). In effect it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information.
38 There was no transcript of the RRT hearing in evidence. Counsel for the Minister submitted that the proper course was to determine the question by reference to what was contained in the RRT’s reasons.
39 In my view it cannot be said that the appellant himself provided the information in the protection visa to the RRT as part of his application. The passage set out at [11] indicates that the RRT raised the issue of the protection visa application form and the answers contained in it during questions asked of the applicant in the course of the hearing. The RRT then put the inconsistency in the information to the appellant as a possible basis for a finding that the claim had been fabricated; see the passage at [13].
This was approved by Moore J in SZEEU at [20]:
20 In my opinion, the flight information was "information" for the purposes of s 424A(1). What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal. I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. However, it cannot be said, in this case, that the Tribunal acted in such a way.
However, Mr Gormly concedes that this may not apply to basic factual information known to the applicant and foundational to the review application: NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333 at [50]. However, the information in this case is not information of this kind.
Mr Gormly then submits that the applicant’s reference to the 1994 protection visa application in his statutory declaration does not account for the Korean claims.(CB 31) The applicant stated that he did not know what the earlier Tribunal decision said.(CB 31.5)
Mr Gormly submits that the applicant telling "Australian officials that I want to go home" in his statutory declaration (CB 32.3) does not account for the information in the June 2004 Department interview that "the only reason why he could not leave Australia was that he had health problems".(CB 121)
Ms McWilliam, for the first respondent, submits in relation to information (a) at [18] above that the Tribunal's disbelief of the applicant's evidence arose from inconsistencies between the applicant's present and past claims.(CB 130.5) This was not "information" within s.424A of the Migration Act, see SZBYR at [18]:
if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1).
I agree with Ms McWilliam, that the Tribunal based its decision on its disbelief that the applicant began involvement in Falun Gong in 2002, yet he made no mention of it in an interview in 2004. The sole reason for his reluctance to return to China was his concern for his health. I am satisfied that the Tribunal’s disbelief because of this inconsistency was the reason for its decision and does not constitute “information” as per s.424A. This ground cannot be sustained.
Ms McWilliam submits regarding information (b) that the applicant’s claim itself was not used by the Tribunal as part of the reason for affirming the decision under review. Rather, it was that the applicant had made untrue claims without a satisfactory or plausible explanation.(CB 129) This does not constitute "information" within s.424A: SZBYR at [18].
On the applicant’s own admission, the claim regarding feared persecution as leader of the Korean political party was untrue despite the fact that he had repeated this claim over an extended period of time. The claim was promoted with the assistance of a migration agency, Pricilla Yu International Pty Ltd. The Tribunal decided that this claim only raised doubts as to the truth of other information he has provided. I accept Ms McWilliam’s submission that does not constitute information within s.424A.
Ms McWilliam further submits that information (d) is not part of the reason for affirming the decision under review, as the Tribunal accepted that the applicant was genuinely confused about the issue.(CB 130.9 - 131.2) As such, s.424A was not enlivened.
I believe that information (d) was put aside by the Tribunal because of the applicant’s confusion. Both sides acknowledged this point. The Tribunal’s s.424A letter indicated that although the issue was relevant to the decision, it was subsequently put aside and did not need to be addressed further.
Ms McWilliam submits in respect of all four items above that all of the "information" was discussed in detail at the hearing (CB 122.7, 124.1-5, 125.4) and expanded upon in a letter from the applicant’s solicitor on 26 February 2007.(CB 105) The "information" was not, therefore, merely adopted. It was provided by the applicant for the purposes of his review application and thus fell within the exclusionary provision of s.424A(3)(b) of the Act.
I am satisfied that information (a), (b) and (d) have been correctly dealt with. Information (c) is similar and should be dealt with in the same manner as (b). The Tribunal concluded that the applicant’s preparedness to provide false names to Departmental officials added to doubts about the credibility of the information he provided. Ms McWilliam’s alternative proposition does not arise in relation to the four issues raised in the further amended application. However, as the material comes from several different sources and was not provided by the applicant in his application to the Court, I am satisfied that this analysis applies.
Ms McWilliam submits that it should be noted that the general proposition that a matter must be put forward by the review applicant "in-chief" was not adopted by the Full Court in NBKT v The Minister for Immigration & Multicultural Affairs (2006) 156 FCR419 per Young J at [52] (with whom Gyles and Stone JJ agreed).
Ms McWilliam submits that if it is found that an obligation did arise in respect of any of the four items, then the Tribunal complied with its obligations as all matters of concern were put to the applicant in the letter of 19 February 2007.(CB 103-104) The fact that the letter was sent post-hearing does not negate the Tribunal's compliance, particularly as information (d) only arose following the applicant's oral evidence before the Tribunal: SZBYR at [13]-[14], [19]-[20].
I believe that the four issues identified have been dealt with based on the particular circumstances however I am cautious that the approach submitted at [33] above would apply should the primary reason for dismissing each issue be found not to apply. The argument presented by Mr Gormly indicates that there is conflict between the authorities and that in some situations, a contrary outcome would be justified.
Conclusion
I am satisfied that none of the grounds contained in the further amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 24 August 2007
7
3