SZLIW v Minister for Immigration
[2009] FMCA 333
•24 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 333 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – evidence of similar protection visa claims by other persons – whether “information” within s.424A of the Migration Act. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458 Favelle Mort Limited v Murray (1976) 133 CLR 580 SZJZB and Another v Minister for Immigration and Citizenship and Another (2008) 105 ALD 226 SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 |
| Applicant: | SZLIW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1472 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 February 2009 |
| Date for Last Submission: | 1 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Y Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1472 of 2008
| SZLIW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 dated 1 May 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia in May 2007 and applied for a protection visa. He made brief claims in his protection visa application that he was “forced to jump in a communal fight with a political party” in Kerala and that if he went back to India he would be killed by his enemies. He claimed he needed more time to explain his situation. However, on 29 May 2007 a delegate of the first respondent refused his application for a protection visa.
The applicant sought review by application lodged with the Tribunal in June 2007. He provided a written statement in support of his application and information in relation to the situation in his home state of Kerala. The Tribunal affirmed the delegate's decision on 9 August 2007. The applicant sought judicial review and on 7 March 2008 this Court set aside the decision by consent and remitted the matter to the Tribunal to be determined according to law. It is that reconsideration that is the subject of these proceedings.
After the matter was remitted to the Tribunal, the Tribunal invited the applicant to attend a further Tribunal hearing. He did so.
In its reasons for decision the Tribunal set out a lengthy extract from the applicant's written submission of June 2007 in which he claimed that he was a Christian involved in church activities in Kerala, India who had faced discrimination in his workplace and that he was regarded as an “out caste” by the Hindus. He claimed that after he became a security guard (in 2002) he worked for the church openly serving fishermen, dalits and untouchables in the area. He claimed he was asked to protect the church premises from intrusion by “goondas” and criminals. He referred to antagonism between Hindus, Muslims and Christians in the area and claimed that when the Communist CPI(M) Party came to power, the Muslims were supported by Communist criminal elements who became puppets of wealthy Muslim businessmen and that the Muslim community started to infiltrate into areas without authorisation. He claimed that at the request of the church he and two friends were appointed to do surveillance in areas where Christian fishermen were using their boats, after complaints from such fishermen that Muslim fishermen were hiring people to assault them at sea and during the sale of fresh fish. He claimed that while Muslim atrocities towards the fishermen then started to decrease, the Muslim fishermen became antagonistic towards him and his friends and brought their goondas to threaten them many times. He claimed that they managed to chase the goondas away but that his wife was concerned about his safety and advised him to apply for a visa to leave the country as Muslim atrocities were increasing and the authorities were not taking any action.
The applicant referred to an incident in August 2006 involving a clash between Muslim goondas and Christians in relation to the price of the sale of fish to the public. He claimed that two Christian men were beaten up and hospitalised but that the police took no action to intervene. The applicant claimed that in September 2006 eight or nine goondas asked fishermen for information about him and his colleagues and warned locals they would destroy their houses and fishing business if they competed against the Muslims.
The applicant claimed that his help was sought in relation to an incident in November 2006 when five injured fishermen and three women were tied up in a fishing boat and that he and his colleagues located and questioned two of the culprits who claimed that they had been hired by Muslim businessmen. He claimed his wife was afraid that the men would hurt or kill him and suggested that he should leave the country and that she contacted her brother to arrange a visa for him. In the meantime the applicant complained to the police, but the police officers were said to have acted indifferently and treated them as untouchables.
The applicant claimed that two weeks later police officers arrested him and his friends for assaulting Muslims in their area and detained them. He claimed that he recognised two police constables as goondas who had been caught by them. He claimed that he was kicked and tied up by these constables who warned him to leave India and not come back or he would be killed. He claimed the constables threatened to kill him and his friends if they identified them to anyone or filed a case against them and that he was told that his name and that of his friends had been notified at all the police stations as terrorists. He claimed that he was released after his wife and church people paid bribes to the police officers, that they left Kerala and stayed in Bombay and subsequently he obtained a visa to travel to Australia.
The Tribunal referred to what had occurred before the previously constituted Tribunal, including the applicant's response to a s.424A letter sent by the first Tribunal and his evidence at the first Tribunal hearing, in which he was said to have been unable to explain to the satisfaction of the previously constituted Tribunal certain specified inconsistencies in his evidence.
The Tribunal also summarised what occurred at the second Tribunal hearing, including the fact that it put to the applicant that his claims and the claims of two other applicants who travelled to Australia with him were the same in relevant respects. It asked the applicant if his claims reflected his personal experience or if someone else gave him the claims he made. The Tribunal recorded that he responded that he was not aware of what to write or how to present his case so he told officials at the immigration office he needed more time. He claimed he became acquainted with other applicants at that time and they discussed their claims.
The Tribunal set out the applicant’s oral claims at the hearing, including a claim that he was seen as encouraging Hindus and Muslims to convert to Christianity and that this caused resentment amongst others. He claimed he was targeted because he was seen to be converting others to Christianity, although in fact he was not doing so, but was only helping people. He claimed that he and others gave protection to a priest and assisted people coming to mass. The Tribunal recorded that it put certain concerns to the applicant about his claims, including concerns about the absence of detail in particular respects and the need for constant prompting from the Tribunal at the hearing.
The Tribunal also recorded that it put to the applicant country information about the situation in Kerala and that in the absence of more relevant detail it might come to the view that the reason he could not remember the details of the claims he made in his written statement was because those things did not happen to him. The Tribunal gave the applicant the opportunity to make any further written submissions within 21 days after the hearing. He did not do so.
In its findings and reasons the Tribunal summarised the applicant's claims to fear persecution on the basis of his religion and membership of a particular social group and that the police were unwilling and unable to give him protection. The Tribunal acknowledged that independent country information indicated that Christians in India were at times faced with discrimination from Hindus and Muslims and that in recent years there had been a number of specific incidences of sectarian conflict in Kerala, but found that these matters were not sufficient to make out the applicant's claims.
The Tribunal turned to examining the applicant's personal circumstances. It found him not to be a credible witness. It found that he appeared to have memorised aspects of his claims, but that he otherwise gave vague, confused and evasive evidence with respect to other aspects of his claims. The Tribunal had regard to the fact that on many occasions in the hearing it had had to repeat its question several times to elicit a response. It then outlined particular concerns with aspects of the applicant's evidence.
The Tribunal first referred to the similarities of the applicant's claims with those of other protection visa applicants. It stated (at [56]):
The Tribunal accepts that in cases where an applicant makes claims which are similar to several other applicants, it is difficult to make a finding that a particular applicant's claims are not the original claims upon which others have based their similar claims. In this case, the applicant told the Tribunal that he had discussed his claims with others in the group with which he traveled (sic) to Australia. The Tribunal accepts that it is therefore possible that it is his claims upon which the others have based their own. The Tribunal therefore makes no adverse inference in relation to this matter. The Tribunal notes, however, that even if the applicant was the generator of these claims and not the simulator, it does not make the claims, in and of themselves, true. This is a separate matter for determination.
The Tribunal then considered the applicant's claims that he had faced discrimination in the workplace, that he had been looked down on as an outcast by Hindus because he was a Christian, that he was beaten and threatened with death by some Muslims and Hindus opposed to his activities with the church and because they perceived he was proselytising and that he was targeted because he provided protection to the priest and the community.
The Tribunal referred to the applicant’s evidence that he was employed as a security guard, but found that he did not provide any details in relation to the type of discrimination he claimed he faced, whether this affected his ability to work, if he reported it or if such reports were acted upon. It found that he provided no evidence to suggest he was discriminated against or harmed to a level that would infer Convention-based persecution. It was not satisfied on the evidence before it that the applicant's experience of claimed discrimination amounted to persecution, whether for a Convention reason or otherwise, or any other form of serious harm in the relevant sense.
The Tribunal had regard to the fact that the applicant was unable to recall details of claims he had put in his written statement. It found his explanation as to why this was so did not satisfy it that these incidents had occurred or that the applicant was involved in any way. It was not satisfied that the applicant was of adverse interest to the groups described for a Convention-related or any other reason such that they would threaten to harm him in any way.
The Tribunal also found that the applicant's evidence that the police did not act on his reports because they were influenced by rich Muslims and that they arrested him and beat him severely because of his involvement in assisting people in a sectarian incident to be vague, confused and lacking in relevant detail. It was not satisfied that the applicant was arrested, abused or harassed by the police for the reasons claimed or for any other reason.
The Tribunal considered the applicant’s claim to fear persecution based on his political opinion. It had regard to his statements in relation to the support of the Communist CPI(M) government and Communist criminal elements by wealthy Muslims, his claims about harassment and discrimination faced by Christian fishermen at the hands of Hindus, Muslims and criminal-minded authorities and politicians and that police did not act because of corruption. The Tribunal accepted that in an appropriate case an applicant may have sufficiently strong convictions that the suppression of such convictions in order to avoid harm might constitute persecution for that applicant and that there may be a real chance that the holder of such strong convictions could give voice to them on their return and come to the adverse attention of the authorities or other persons. However it found that beyond “mere assertion” the applicant had provided no further information to satisfy it that he would be motivated to give voice to his opinions if he returned to India.
The Tribunal found that the applicant's claim that he feared that members of the Hindu and Muslim communities and the police would harm or kill him if he returned to India were without merit. While it accepted that sectarian violence existed and that the applicant may be a Christian, it did not accept that he was engaged in any activity that would bring him to the adverse attention of other religious groups or the police or that he was subject to harassment, intimidation, assault or any other harm as claimed. Nor was it satisfied on the applicant’s evidence that he would become involved in any religious activity in the future if he returned to India such that would bring him to the adverse attention of other religious groups that would in turn motivate them to harm him.
The Tribunal accepted that it was not implausible, in light of the sectarian and inter-religious violence in Kerala, that the applicant may become a victim of random acts of violence, but found that this would make him a victim of civil disorder or generalised sectarian violence and not necessarily a refugee from persecution. It found that even if the applicant had developed a subjective fear of such harm, on the evidence before it such fear was not well founded. In that respect the Tribunal indicated that it had already rejected the applicant's claims that the police harmed or assaulted him or that he was ever arrested. It found that nothing that the applicant said satisfied it that he had a well-founded fear of persecution by the police.
In relation to the applicant’s claims about the police being unable and unwilling to provide him with protection, the Tribunal accepted that inter-religious conflict occurred in India and the response of the police was often ad hoc and at times could have amounted to discrimination. However it had regard to the fact that it is not a requirement that the State guarantee the safety of its citizens from harm caused by non-State persons (referring to Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1). It was not satisfied that the authorities would fail to provide the applicant with the protection to which he would be entitled should he return to India.
The Tribunal concluded that it was not satisfied that the applicant had suffered past persecution or that he faced a real chance of being persecuted now or in the reasonably foreseeable future for a Convention reason or for an imputed Convention reason.
This application
The applicant sought review by application filed in this Court on 10 June 2008. He relies on an amended application filed on 18 August 2008. There are two grounds in the amended application. The first is that there was a breach of natural justice and procedural fairness. The second alleges jurisdictional error. The particulars in the amended application are as follows:
The Tribunal found that I am not a credible witness. During the hearing, the Tribunal raised a number of issues in relation to my Convention claims and asked me to response (sic) these issues. After the hearing and before the decision was made on my review application the Tribunal did not invite me to make my written comment on the issues raised by the Tribunal. Therefore the Tribunal breached a section 424A of the Migration Act (1959) (sic).
There is independent country information before the Tribunal that my fear of persecution on the basis of my religion is well founded (Christians like me face discrimination and human rights abuses in India). The Tribunal has power to consider the information and to make finding on the information. The Tribunal has failed to take into consideration of the relevant country information. This is jurisdictional error.
Independent country information
It is convenient to deal first with the submissions in relation to the Tribunal's use of independent country information. The Tribunal accepted that independent country information indicated that Christians in India are at times faced with discrimination from Hindus and Muslims and that in recent years there had been a number of specific instances of sectarian conflict in Kerala. However the Tribunal also properly recognised that it was necessary to have regard to the applicant's personal circumstances and claims in relation to the country information and the situation in India. It accepted that sectarian and inter-religious violence existed and that it was not implausible that the applicant may become a victim of random acts of violence in such circumstances, but found that this would make him a victim of civil disorder or generalised sectarian violence and not necessarily a victim from persecution.
Insofar as the applicant asserted that the Tribunal failed to consider relevant independent country information, this is contrary to the Tribunal's decision which indicates that it did consider items of independent country information. The Tribunal's use of country information and the weight to be given to such material is a matter for the Tribunal and does not give rise to jurisdictional error in this instance. (See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] and VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104.)
This aspect of the grounds in the amended application is not made out.
Natural justice
The applicant claimed generally that there was a denial of natural justice and lack of procedural fairness. Section 422B of the Migration Act1958 (Cth) provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214). There is no suggestion that any of the procedures provided for in Division 4 of Part 7 were not met by the Tribunal, except that (as discussed further below) the applicant contended that there was a failure to comply with s.424A of the Act. The Tribunal's account of what occurred in the Tribunal hearing (the only evidence of the hearing before the Court) is not such as to suggest that the Tribunal failed to give the applicant the opportunity to give evidence and make submissions about dispositive issues in the manner considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 or to raise concerns as to either actual or apprehended bias.
Section 424A
A number of issues arise in relation to s.424A of the Migration Act. First, insofar as the applicant alleged generally that the Tribunal should have invited him to make written comments on the issues raised by the Tribunal during the hearing and that its failure to do so constituted a breach of s.424A of the Migration Act, this contention is not made out. If the applicant intended to contend that the Tribunal should have put to him its preliminary reasoning for comment, it is clear from the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 that it was not obliged to do so. In SZBYR the majority of the High Court (at [18]) referred with approval to the observations by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (at 476 – 477) that the word "information" in s 424A(1):
… does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. …
As stated in SZBYR at [18]:
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.
Further, while the Tribunal had regard to inconsistencies between the applicant’s oral claims and those in his written statement provided to the Tribunal, no breach of s.424A(1) is apparent in that respect. As Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ pointed out in SZBYR 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.
If it was asserted that the Tribunal should have put independent country information to the applicant for comment, such material is within the exceptions in s.424A(3) of the Act. Information the applicant provided to the Tribunal (in particular his written statement of claims) is also within s.424A(3) exceptions.
During the hearing an issue that arose on the face of the Tribunal's decision as to whether the Tribunal was obliged to put to the applicant for comment under s.424A of the Migration Act the similarities of the applicant's claims with those of other protection visa applicants was discussed. The parties were given the opportunity to make further written submissions on this issue and the hearing was adjourned.
The Tribunal as originally constituted had written to the applicant under s.424A of the Act on 3 July 2007 putting to him information to the effect that his typed statement of claims submitted to the Tribunal was the same in many respects as the statements submitted by two other persons who had arrived in Australia on the same flight and with whom he was living and that the review applications submitted by all of them appeared to have been handwritten by the same person. This information was said to be relevant because it may lead the Tribunal to conclude that the applicant's claims had been concocted for migration purposes and not to give any weight or credence to the personal details in his claims. The applicant was asked to comment on such information at an interview before the Tribunal hearing. The court book does not contain the decision of the Tribunal as originally constituted, but the Tribunal as reconstituted recorded that the applicant had been unable to explain to the satisfaction of the previously constituted Tribunal inconsistencies in his evidence in four respects, including the similarities between the accounts of his written statement and the accounts of the two other applicants, and that that led the previously constituted Tribunal to disregard the applicant’s claims as fabricated.
As set out above, in the second hearing the Tribunal referred to the similarity of the applicant's claims to those of two others who had travelled with him and asked him if his claims reflected his personal experience or if he was given the claims by somebody else. It recorded that he claimed he became acquainted with the other applicants and that they discussed their claims.
As set out above (at [14]), in paragraph [56] of its findings and reasons the Tribunal referred to these other claims. It accepted that it was possible that it was the applicant's claims upon which others had based their claims and stated that it therefore made no adverse inference in relation to this matter, but noted that even if the applicant was the generator of the claims it did not make the claims in and of themselves true.
In these proceedings the first respondent did not contend that the second Tribunal was entitled to rely on the s.424A letter dated 3 July 2007 sent to the applicant by the first Tribunal. Rather, the first respondent contended that the Tribunal did not fail to comply with s.424A in respect of the matters contained in paragraph [56] of the Tribunal decision in relation to similarities of the applicant’s claims with those of other protection visa applicants.
Counsel for the first respondent contended that there were two decisions of the Federal Court relevant to this issue that were “irreconcilable”. The first of those decisions is the 3 November 2008 decision of Perram J in SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721. The second is the 19 November 2008 decision of Jagot J in SZJZB and Another v Minister for Immigration and Citizenship and Another (2008) 105 ALD 226 (on appeal from my decision in SZJZB & Anor v Minister for Immigration & Anor [2008] FMCA 848). Their Honours were each exercising the appellate jurisdiction of the Federal Court.
In SZLPJ Perram J considered the temporal operation of s.424A in circumstances where at the hearing the Tribunal had raised with the applicant the fact that there was another matter before the Tribunal in which similar claims were made and the fact that this could raise concerns about her claims. His Honour stated (at [13]) that a passage in the Tribunal decision describing his evidence at the Tribunal hearing could not be read in isolation and had to be read with the following passage from the Tribunal’s reasons for decision:
As discussed in the course of the hearing, there was another matter before the Tribunal where similar claims have been made; the Tribunal has not in any way used this issue adversely to the applicants.
Perram J considered whether s.424A of the Act was enlivened in respect of any information relating to the other matter before the Tribunal in which similar claims had been made, observing (at [15]) that such information was not within the s.424A(3) exception and that “prima facie” therefore one might think that s.424A(1) would apply. Counsel for the Minister had submitted that because the Tribunal indicated it had not in any way taken into account the similar application, s.424A(1)(a) was not enlivened. Perram J held (at [15]) that "strictly speaking", for the reasons explained by the High Court in SZBYR at [17]:
… s 424A speaks not to the time of the Tribunal's decision, but rather at some anterior point, at which the Tribunal turns it mind to the particulars which must be provided. For that reason, the strict answer to the question posed by s.424A(1)(a) turns to be decided upon and examination of the Tribunal's state of mind at that anterior point.
His Honour acknowledged that the decision of the High Court in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 may mean that such “anterior time” was not a single point of time but “in effect is all times which existed up until the moment of the Tribunal's reasoning process” (at [16]) and found that ultimately the question was “what inferences can be drawn from the material which was available to the Tribunal”.
In the case before him, Perram J found it reasonable to draw the inference that the Tribunal did not at that earlier time or times consider that the separate application with similar claims would be the reason or a part of the reason for affirming the decision under review. His Honour accepted that the statement about the Tribunal's state of mind made when it delivered its reasons was sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time (SZLPJ at [16]).
In SZJZB Jagot J considered a Tribunal decision which referred to the fact that there were significant inconsistencies between the evidence of the applicant husband and that of his wife at the hearing. This evidence related to whether the husband had continued to reside in one location at all times. The Tribunal raised the inconsistencies with the husband during the hearing (SZJZB at [15]). In its findings and reasons the Tribunal stated (see SZJZB at [16]) that there were:
… significant differences in evidence of the applicant husband and the applicant wife concerning important aspects of the claim. The Tribunal does not rely on such inconsistencies in reaching its decision and does not consider these to be adverse to the applicant.
However Jagot J held that the Tribunal had failed to comply with s.424A of the Act, suggesting that in determining this issue much would depend on the nature of the material said to constitute “information” within the meaning of s.424A. Her Honour found that the appellant wife's evidence remained relevant to the assessment of the existence of the claimed well-founded fear of persecution despite the fact that her husband had initially given evidence to the same effect (so that there were internal inconsistencies in his evidence). Her Honour found that such inconsistencies did not mean that the appellant’s wife's evidence was relevant only as part of an assessment of his credibility and that her evidence about where her husband lived after claimed attacks was “centrally relevant” to the substance of his claims of persecution in his home town for political and religious reasons (at [24]). The fact that “ultimately” the Tribunal did not use the wife's evidence to assess the substance of the claim (as opposed to the husband's credibility) was said not to be an answer (at [25]). Jagot J noted (at [25]) that SZICUv Minister for Immigration and Citizenship [2008] FCAFC 1 at [25] “leaves open the question of the permissibility of examining the Tribunal’s decision when determining the application of s 424A reasons in the light of the High court’s decision in SZBYR” (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). However her Honour found in SZJZB that “insofar as the Tribunal’s reasons are relevant to the present task, disavowal of reliance on the information is itself potentially ambiguous rather than determinative of the issue given the terms of s 424A” (at [25]).
The written submissions of counsel for the first respondent in relation to this issue were to the effect that the decisions in SZLPJ and SZJZB were “irreconcilable” on the basis that whereas Perram J held that it was sufficient to infer the Tribunal's state of mind from its written reasons, Jagot J did not reach the same conclusion. The first respondent suggested three reasons why the decision of Perram J in SZLPJ should be preferred and Jagot J’s judgment in SZJZB should not be followed. Those submissions involved a criticism of the reasoning of Jagot J. In addition, counsel for the Minister contended that the circumstances of the present case were indistinguishable from those in SZLPJ and that there was no sound reason why a different result should be reached in these proceedings.
When the hearing resumed, I first raised with counsel for the first respondent my concern that I was being asked to consider whether the decision in SZJZB was wrong, notwithstanding that Jagot J was exercising the appellate jurisdiction of the Federal Court and had determined that my approach to s.424A at first instance was in error. In contrast, in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at [35] – [38] the Full Court of the Federal Court (Weinberg, Jacobsen and Lander JJ) stated:
[35] In NAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 170 FLR 477 at [27] Raphael FM held that the judgments of single judges of this Court, are not binding on Federal Magistrates when those judgments are not delivered as an exercise of the Court’s appellate jurisdiction from Federal Magistrates. However, his Honour observed that ordinary principles of comity required Federal Magistrates to follow judgments of single judges of this Court unless they were considered to be wrong
[36] The authorities to which Raphael FM referred in NAAT certainly lend some support to his Honour’s analysis. They suggest that the principle of stare decisis requires a court lower in the particular judicial hierarchy to follow a decision of a court higher in that hierarchy only where that higher court is exercising appellate jurisdiction; see Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591 (Barwick CJ); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504 (Gummow J); Chief Executive Offıcer of Customs v Tony Longo Pty Ltd (t/as Aquila Shoes) (2001) 52 NSWLR 458 at [51]-[52] (Heydon JA). See Cross R and Harris J, Precedent in English Law (1991, Oxford University Press), p 123.
[37] This limitation on the principle of stare decisis can lead to odd results. For example, had Madgwick J been sitting on appeal from a federal magistrate in MMM, his judgment would have been binding upon all federal magistrates. However, because he was exercising original jurisdiction, a matter of sheer chance, at least in relation to migration cases, his judgment was not strictly binding.
[38] Even if the Federal Magistrate was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court. The correct principle is that a judgment ought to be followed unless it is plainly wrong. Lander J referred to the relevant authorities in Cooper v Commissioner of Taxation (Cth) (2004) 139 FCR 205 at [46].
In both SZLPJ and SZJZB their Honours were exercising appellate jurisdiction. Neither SZANS (nor the recent “caveat” entered by Spender, Buchanan and Perram JJ in Suh v Minister for Immigration and Citizenship [2009] FCAFC 42 at [29] “against any notion that the authority of judgments of single judges of the [Federal] Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction”), addressed the issue of conflicting appellate decisions of the Federal Court.
I also raised with counsel for the Minister the issue of why, if there were two “irreconcilable” appellate decisions, it would not be proper for this Court to follow the decision that was later in time, which at that time would have been SZJZB.
In oral submissions counsel for the first respondent contended that the Federal Magistrates Court was not bound to follow the more recent decision of the Full Court of the Federal Court in SZJZB, on the basis that Jagot J did not refer to or consider the earlier decision of SZLPJ. Such submission appeared to suggest that the “per incuriam” rule applied to this Court in relation to a decision of a superior court, contrary to what Moffit P suggested in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 as follows:
The per incuriam rule is a rule which applies only to a review by a Court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior Court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it had only decided the question apparently argued before it or on the basis that its reasons were its decision.
Counsel for the Minister also indicated that there was a very recent ex tempore decision of Logan J directly in point. In the absence of any submissions on these issues from the applicant (who was self-represented), I gave the parties time to make further written submissions in light of the approach taken by the Full Court of the Federal Court in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [42]. In SZGME Black CJ and Allsop J observed at [42] that principles of precedent required a Federal Magistrate to follow a particular decision of a single judge of the Federal Court being a decision in the Court’s appellate jurisdiction and the most recent Federal Court appellate decision on an issue where there were conflicting Full Court authorities. Their Honours did not think it was open to the Federal Magistrate to regard what was said in that Federal Court case as obiter and continued (at [42]):
In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent. His Lordship said:
It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.
In further supplementary submissions the first respondent acknowledged that the doctrine of stare decisis requires a lower court in a particular judicial hierarchy to follow a decision of a court higher in that hierarchy if the higher court exercises appellate jurisdiction over the lower court (Favelle Mort Limited v Murray (1976) 133 CLR 580 at 591 and Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504) and that where there are two decisions of the higher court that are in conflict, the later decision in time should ordinarily be followed (see Miliangos and SZGME). It was submitted that the Court was not bound to follow the decision in SZJZB because it was distinguishable (albeit “irreconcilable” with the decision in SZLPJ) but that in any event the Court should follow the later decision of Logan J exercising appellate jurisdiction in SZLJF v Minister for Immigration and Citizenship [2009] FCA 158.
The first respondent maintained the contention that SZLPJ and SZJZB were irreconcilable insofar as different results were reached, but submitted that SZJZB was distinguishable for reasons that included those in the earlier submission that took issue with the fact that an important step in Jagot J’s reasoning in SZJZB was said to be her Honour’s conclusion that the appellant wife’s evidence was “centrally relevant” to the husband’s claims to fear persecution. The first respondent submitted that it was “not to the point that her Honour considered the applicant wife’s evidence to have been ‘centrally relevant’”, that it was a question for the Tribunal to determine whether the wife’s evidence would be the reason or part of the reason for affirming the decision under review and that “Her Honour’s views as to the objective relevance of certain information had nothing to do with the proper interpretation and application of s.424A of the Act”.
However, rather than suggesting a point of distinction, such contentions appear to me to take issue with the correctness of the approach taken in SZJZB to the scope of s.424A of the Migration Act. I am of the view that it is not open to me to take such an approach in relation to the decision in SZJZB (cf SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 in which Jacobson J distinguished SZJZB at [19] on the basis that “the information in question was considered … to be relevant by the Tribunal, either explicitly or by inference from the review process” (emphasis added)).
In any event, there is now a later decision that is directly in point on the issue before the Court which I consider I am bound to follow. On 17 February 2009, in SZLJF, Logan J considered circumstances very similar to those that arose in the present case. In that instance, as in this case, the matter was before the Tribunal after remittal from this Court. The Tribunal as originally constituted had put information to the applicant pursuant to s.424A of the Migration Act in exactly the same terms as the information in this case: that the applicant in that case received his visa on the same day as two other persons who arrived on the same flight and with whom he was living, that the typed statement of claims were the same in many respects and that the review applications all appeared to have been hand-written by the same person. The Tribunal as reconstituted stated in its reasons (at [102]) (see SZLJF at [14]):
As noted, the RRT has dealt with another two applicants who have made similar claims. The tribunal has not in any way used this matter in an adverse manner to the applicant. The tribunal has assessed the applicant’s claims and evidence on their own merit.
Logan J found no error on the part of the Federal Magistrates Court in failing to find a failure to comply with s.424A of the Act. His Honour referred to the suggestion by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] in relation to s.424(1)(a) that:
The use of the future conditional tense (would be) rather than the indicative, strongly suggests that the operation of section 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case.
In SZLJF Logan J (at [18]) also referred with approval to the approach taken by Perram J in SZLPJ:
This acknowledged, it is permissible, in my opinion, to draw an inference that, even prospectively, the adverse contingency, which generated on the part of the first Tribunal, the letter of 3 July 2007, did not form part of the second Tribunal’s thinking. That inference, to me, seems to be open from para 102 of the Tribunal’s reasons. I note that in SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721, Perram J adopted a similar approach: see especially para 16 of his Honour’s reasons for judgment.
In these circumstances I consider that this Court should follow the more recent decision of the Federal Court exercising appellate jurisdiction. I note that no issue arises in this instance as to any distinction between a decision of a single judge of the Federal Court exercising original jurisdiction and a decision of a single judge exercising appellate jurisdiction. (Compare Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 and Suh v Minister for Immigration and Citizenship [2009] FCAFC 42).
On this basis, in determining whether s.424A(1)(a) was enlivened I have considered what inferences can be drawn from the material available as to the Tribunal’s state of mind at the anterior point or points of time as considered in SZLPJ and SZLJF, consistent with SZBYR at [17]. I note in that respect that as Jacobson J observed in SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [17] – [18]:
[17] The question of whether the Tribunal considered the information to be a reason for affirming the decision must be a question of fact. As Siopis J observed in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36]:
[T]he assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information.
[18] That is to say, in a proper case, the Court, in making its assessment, may draw inferences from the Tribunal’s reasons as to whether the Tribunal considered the information to be a reason for affirming the decision.
In so doing I consider it reasonable, in the particular circumstances of this case, to draw the inference that “even prospectively” (SZLJF at [18]), the Tribunal did not consider that the similarities of the applicant’s claims with those of other protection visa applicants (which were the subject of the first Tribunal s.424A letter) would be the reason or a part of the reason for affirming the decision under review. As in SZLPJ and SZLJF, I accept that the Tribunal’s statement about its state of mind when it delivered its reasons (that it was possible that it was the applicant’s claims on which the others with whom he discussed his claims based their claims and that it therefore made “no adverse inference in relation to his matter”) is sufficient to permit an inference to be drawn that “the same state of mind existed at an earlier time” (SZLPJ at [16] and SZLJF at [18]).
It must be said that there are some difficult questions about the drawing of an inference in relation to whether s.424A(1)(a) was enlivened where particular information was raised in some way at a Tribunal hearing but was not used in the Tribunal decision (see SZJZB, MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483 and SZMPT v Minister for Immigration and Citizenship [2009] FCA 99). The mere fact that an issue was discussed in some way at a hearing should not of itself preclude the drawing of an inference that s.424A was not enlivened (see SZLPJ at [13]). Nor should it compel an inference that particular information “would be” the reason or a part of the reason for affirming the decision under review.
In the particular circumstances of this case, while the issue was raised at the hearing, the Tribunal proceeded on the basis that it accepted the applicant’s oral explanation for the similarity of the claims of others. The Tribunal made no adverse inference in relation to these matters. However it did not simply disavow reliance on the information. It explained why it did so. It was on this basis that it went on to consider the merits of the applicant’s claims, that is, it accepted for the purposes of the decision that the applicant was “the generator of these claims and not the simulator”.
In light of all the material before the Tribunal, its explanation for its state of mind and its consideration of whether it accepted the applicant’s claims on their merits is such that it can be inferred that the Tribunal did not consider the information about the similar claims would be “the reason or a part of the reason for affirming the decision under review” at an anterior time in the sense considered in SZBYR. Hence I am satisfied that s.424A(1) of the Act was not enlivened.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 April 2009
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