SZMDV v Minister for Immigration

[2009] FMCA 6

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 6

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Georgia – Tribunal making enquiries under s.424 – whether the Tribunal breached that section by directing its request through a third party who made oral enquiries considered – whether the Tribunal breached s.424A by failing to disclose the contents of an email from the third party considered – whether the Tribunal took into account the contents of the email considered.

Migration Act 1958 (Cth), ss.424, 424A, 424B

SXRB v Minister for Immigration [2006] FCAFC 14
SZBQS v Minister for Immigration [2008] FMCA 812
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZKCQ v Minister for Immigration [2008] FCAFC 119; (2008) 170 FCR 236
SZKTI v Minister for Immigration [2008] FCAFC 83; 168 FCR 256

Applicant: SZMDV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 954 of 2008

Judgment of: Driver FM

Hearing date: 9 December 2008

Delivered at: Sydney

Delivered on: 12 February 2009

REPRESENTATION

Counsel for the Applicant: Mr D Jenkins

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 954 of 2008

SZMDV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 27 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Georgia and had made claims of political persecution. The following statement of background facts is derived from the applicant’s initial written submissions filed on 26 November 2008 and the Minister’s initial written submissions filed on 28 November 2008.

2. The applicant most recently arrived in Australia on 6 September 2006: court book (“CB”) 32.5, and applied for the visa on 10 October 2006: CB 1-29. The delegate refused the visa on 5 January 2007: CB 30-40. The applicant applied to the Tribunal for review on 25 January 2007: CB 41-45. The Tribunal held hearings on 29 March 2007: CB 58-59, and 19 June 2007: CB 78-79. Later the Tribunal was reconstituted and held a hearing on 14 August 2007: CB 106-107, and on 4 September 2007 wrote to the applicant pursuant to s.424A of the Migration Act 1958 (“the Migration Act”): CB 120-121. The Tribunal wrote to the applicant pursuant to s.424 on 22 January 2008: CB 131-144, and on 14 February 2008 again wrote to the applicant pursuant to s.424A: CB 155-227.

3. The applicant claimed to fear persecution in Georgia for reason of his political opinion. He claimed to be the godson of Maia (Maya) Topuria, and to have become a supporter (although not a member) of her political party the Justice Party (JP) after returning from a previous visit to Australia in 2003. He claimed that the JP organised demonstrations in 2006, and that after the applicant returned from a trip to Turkey on
   18 July 2006, he found his room was robbed and he received threats.
   He claimed that after his arrival in Australia Ms Topuria was arrested, and that he was blamed.  As a result he claimed to fear persecution from both the Georgian authorities and the JP itself. See generally CB 237-252. There seems to be no doubt that Ms Topuria had been arrested as the applicant claimed, but the issue for the Tribunal was whether the applicant was actually Ms Topuria’s godson and whether he had been involved in assisting her in the Justice Party as claimed.

4. On 3 July 2007, the member constituting the Tribunal directed an officer of the Tribunal to find information about Ms Topuria (CB 160). The purpose of that information was to test the applicant’s knowledge as to the personal circumstances of Ms Topuria (CB 83.3).

5. On 5 July 2007, an officer of the Tribunal, Ms Emma Henderson, sent an email to Mr Darren Spinck asking whether Mr Spinck or

   
   

   Ms Topuria’s attorneys could direct her to any ‘publications or published profiles of Maia Topuria’  (CB 82.4).

6. On 14 August 2007, Mr Larry Barcella sent an email to the Tribunal claiming that he and another person ‘represent Maia Topuria in the case presently being tried in the Soviet Republic of Georgia’ (CB 94.2). Mr Barcella attached some general information to the email (CB 95 – 104). Mr Barcella wanted to know what interest Ms Henderson had in the matter and his client (CB 94.3).

7. On 14 August 2007, Ms Henderson sent an email to Mr Barcella (although the copy of the email at CB 83 wrongly dates this as 5 July 2007), thanking him for his assistance asking him to provide personal information about Ms Topuria (CB 83.5). In that email Ms Henderson explained the reason for the request as being:

   The Tribunal tests the veracity of applicant’s claims by contacting persons overseas who are personally named as being involved with them and also researching from independent sources worldwide. In order to ascertain whether the applicant could be a relative your client and an activist in her political movement, the Presiding Member of the Tribunal is seeking to locate information that may not necessarily be in the public domain. Such information would be within the knowledge of the applicant, if, indeed, he is related to Maia as claimed. (CB 83.2).

8. Later on 14 August , Mr Barcella sent an email to Ms Henderson (CB 1005) in which he wrote:

   … I will be more than happy to provide the information requested, but precisely because of the personal nature of the information sought from our client, you will appreciate our needing to know the identity of the applicant before disclosing the information. Assuming you receive the applicant’s consent, we will immediately seek the consent of our client to disclose the answers to the personal background questions concerning her, her sister and their children.

9. Ms Henderson then sent another email to Mr Barcella on 15 August 2007, in which she repeated her request but also asked the following:

   1.Is [the applicant], Maia’s Godson?

   2.What involvement did [the applicant] have with the Justice Party (if any) (CB 116).

10. In the meantime the Tribunal secured the consent of the Applicant to release his name to Ms Topuria and, on 27 August 2007, Ms Henderson again sent an email to Mr Barcella stating that the Tribunal no longer required the ‘personal’ details but only the two questions set out in paragraph 9 above.

11. On 31 August 2007, Mr Barcella sent an email to Ms Henderson stating:

    Your timing is remarkable. I just received an email from my client’s sister, who had at my request, spoken to her to follow up on the discussion I had with her last week. While she knows an individual with the last name …, she does not recall a … and certainly he is not her godson. There are many members of the Justice Party that are being harassed and worse in Georgia, but she is not aware of this gentleman’s situation. I hope this helps… (CB 118).

12. On 4 September 2007, the Tribunal put this information to the applicant in a s.424A letter (CB 120).

13. On 2 October 2007, the applicant responded (CB 124) by pointing out to the Tribunal that Ms Topuria was in prison for her alleged involvement with the Justice Party and that she might well not have been aware of why the information was being sought. In such circumstances she would have been reluctant to provide information saying that the applicant was related to her or was involved with the very party for which she herself was in prison. The applicant also made the point that Ms Topuria’s calls would be monitored by the ‘Georgian Secret Agencies’.

14. A second s.424A letter was sent on 14 February 2008 giving more particulars of the information and attaching copies of emails sent and received (CB155-227). The applicant responded in terms similar to his first response by letter dated 10 March 2008 (CB 228).

15. The Tribunal rejected the applicant’s objections to the use of the information finding that:

    Whilst I accept that Maya is in prison and that the Georgian Secret Agencies may well overhear her telephone calls I am satisfied that the contact was made with Maya by her legal Counsel is reliable…I accept that the applicant is not Maya Topuria’s godson and that she does not know the applicant.[1]

    [1] CB 265.2

16. The Tribunal found that the applicant was not a witness of truth and that his refugee claims were created: CB 264.2, 267.5, noting that

    
    

    Ms Topuria had denied knowing the applicant and that he had incorrectly named her sister, and rejected the applicant’s explanation for both these matters: CB 264-265. The Tribunal also noted a number of other inconsistencies and implausibilities in his claims: CB 265.8-267.5. While the Tribunal accepted that the applicant’s godmother was called Maya Topuria, it found that this was not the same person as the leader of the JP. As a result the Tribunal rejected all the applicant’s claims of involvement with the JP or having been harmed for this reason: CB 268.2 and found that he did not even genuinely fear harm in Georgia: CB 268.3.  See generally CB 264-270.

Evidence and submissions

1. I received as evidence the court book filed on 3 June 2008. I also received two affidavits, the first made on 29 September 2008 by Pamela Anne Summers which explains the process of retrieving emails from the Tribunal database and annexes three emails between Emma Henderson of the Tribunal and Darren Spinck and Larry Barcella. The second affidavit is by Megan Louise Palmer made on 8 December 2008 and refers to her search of the Tribunal’s records. Annexed to the affidavit is an email from Larry Barcella to Emma Henderson, apparently sent on 15 August 2007 at 6.12pm. 

2. The applicant submits that by failing to disclose particulars of the email annexed to Ms Palmer’s affidavit, the Tribunal breached s.424A of the Migration Act and that the Tribunal also breached ss.424(2) and (3) of the Migration Act in the manner in which the Tribunal sought and obtained information from Ms Topuria through Mr Barcella.

3. In relation to the asserted breach of s.424A the applicant submits:

   Section 424A of the Migration Act 1958 requires that the Tribunal give clear particulars of any information that the Tribunal considers would be the reasons or part of the reason for affirming the decision that is under review.

   The entire correspondence between Ms Topuria’s lawyers and the Tribunal was integral to the information received by the Tribunal and ultimately relied upon by it.  That information was part of the reason the Tribunal affirmed the decision that was under review.

   The applicant was entitled to receive clear particulars, including a complete and unabridged copy of the correspondence between the Tribunal and Ms Topuria’s lawyers.  In particularly, the applicant was entitled to receive a copy of the email sent by Mr Barcella on 15 August 2007. 

   While a copy of that email has not been reproduced in the [court] Book and [prior to Ms Palmer’s affidavit] there [was] some uncertainty as to the information contained, the brief summary given by the Tribunal at [C]B 161 suggests that it likely discussed the manner in which Ms Topuria’s lawyers would contact her and the questions they would put.  Mr Barcella’s concern that some of the questions may have been “unnecessarily personal” also raises issues such as to whether Mr Barcella conveyed all the questions in the way they were asked; issues that the applicant should have been given a full opportunity to respond to after viewing the entire email.  

   The Tribunal’s failure to provide the entire email to the applicant was a failure to provide clear particulars as required by s424A and as such, the Tribunal has fallen into jurisdictional error.

4. In relation to the asserted failure to comply with the requirements of ss.424(2) and (3) the applicant submits:

   In SZKTI v Minister for Immigration and Citizenship[2] the Full Federal Court held that the Tribunal committed a jurisdictional error when it orally ‘invited’ a person to provide information about the Applicant pursuant to s424(2)[3]. The Court held that “while the tribunal was at liberty to choose amongst the methods provided in Div 4 of Pt 7 by which it might obtain the information sought from Mr Cheah, it was not at liberty simply to telephone him, without warning, and ask him questions”[4]. 

   On 14 November 2008, special leave was granted by the High Court to allow the Minister to appeal from the decision in SZKTI. That appeal has not yet been heard.

   In SZKCQ v Minister for Immigration and Citizenship[5] the Full Federal Court was asked to consider whether the principle in SZKTI  applied equally in circumstances where the Tribunal had sought the information through a third party (the Australian High Commission in Islamabad). Although the Court did not decide the question[6], their Honours, Stone, Tracey and Buchanan JJ thought that the discussion in SZKTI as to why the Tribunal must act strictly in conformity with s424 gave support to a submission that it would also apply in such circumstances[7].

   It is respectfully submitted that this is correct and that the requirements of s424 are equally applicable, if not even more so, in a case, such as the present, where the Tribunal has used a third party to invite another person to provide information. In this case, had the Tribunal simply phoned Ms Topuria in prison and asked the two questions upon which it eventually relied, the case would be indistinguishable from the facts in SZKTI and the Tribunal would have committed a jurisdictional error. Section 424 should not be construed in such a way that compliance with the section can be avoided simply by having a third person do what the Tribunal could not have done for itself.

   The Tribunal clearly engaged with Mr Barcella in the expectation that he would be able to elicit the answers to the questions from his client Ms Topuria. It did this rather than communicate directly itself with Ms Topuria. Mr Barcella passed on the invitation orally[8], through Ms Topuria’s sister and this was not appropriate for much the same reasons expressed by the Court in SZKTI at [46] –[49]. Ms Topuria was in prison for her involvement in the Justice Party, the very party that the Applicant also claimed to be involved with. The Tribunal could have no confidence that Mr Barcella would explain to Ms Topuria what the information was required for, who exactly was requesting it and how it might be relevant to the claims. In fact, as it transpires, the critical information was not even obtained by Mr Barcella but rather by Ms Topuria’s sister, and who knows what she said or knew of the correspondence between Mr Barcella and the Tribunal [CB 118]. By this stage it was double hearsay given in circumstances where the Tribunal accepted that the secret police of Georgia may well have been listening to the conversation. No confidence could have been placed by the Tribunal on the information obtained in such circumstances and the Tribunal offered no real reason for finding that such reliance was justified [CB 265].

   The failure of the Tribunal to comply with s424(2) and (3) was a jurisdictional error. This is not merely a case in which the Applicant seeks to complain about the form of the notice cf SZLWQ v Minister for Immigration and Citizenship[9], SZIAR v Minister for Immigration[10] . As in SZKTI, there was no written invitation at all to the person from whom the information was actually requested, namely Ms Topuria.

   The fact that the information was subsequently put to the Applicant for comment in compliance with s424A could not cure the jurisdictional error – a s424A invitation had also been sent in SZKTI[11].

   [2] [2008] FCAFC 83.

   [3] At [45]

   [4] At [50]

   [5] [2008] FCAFC 119

   [6] At [75]

   [7] At [75]

   [8] It is doubtful that Mr Barcella could have ever have complied with any of the methods in s.441A unless he had been authorised to do so by the Registrar.

   [9] [2008] FCA 1406

   [10] [2008] FMCA 1348

   [11] At [26]

5. The applicant further submits that the Tribunal breached s.424 by failing to have regard to the information received from Mr Barcella in the email annexed to Ms Palmer’s affidavit. The applicant submits:

   In making … its decision on the review, the Tribunal failed to have regard to information it got in response to a request made pursuant to section 424 of the Migration Act 1958.

   Section 424 requires the Tribunal to have regard to information that it gets of its own initiative. 

   The 15 August 2007 email was received by the Tribunal after the Tribunal had initiated contact with Ms Topuria’s lawyers seeking information relevant to the applicant’s review.

   In it reasons, the Tribunal made no reference to the 15 August 2007 email from Mr Barcella.  Furthermore, the email was neither reproduced in the Tribunal’s decision, nor was it part of the document citing it that was reproduced in the Tribunal’s reasons. 

   The 15 August 2007 email is also not contained in the Appeal Book.  The Appeal Book was prepared by the First Respondent and purports to be a complete record of all relevant documents taken into account by the Tribunal in reaching its decision. 

   No reason has been given by the First Respondent in his submissions for the absence of the 15 August 2007 email.

   An affidavit sworn by Pamela Anne Summers, the Director of Research and Information Services at the Refugee Review Tribunal, on 29 September 2008 and filed by the First Respondent seeks to explain the anomaly of two emails bearing the same ‘sent’ date.  Ms Summers email was prepared after she had “perused the files and materials relating to the applicant held by the RRT and other materials held by the RRT”.[12]   Ms Summers explains that emails are copied into another computer program, Microsoft Word; presumably, this is so emails can be printed and placed on the applicant’s file. 

   No explanation has been provided by Ms Summers to explain the absence of Mr Barcella’s 15 August 2008 email to the Tribunal.

   The strongest inference available to [the C]ourt is that the absence of reference to the email in the Tribunal’s reasons, the absence of the email from the Appeal Book and the absence of any explanation is consistent with the email not being before the Tribunal when the Tribunal made its decision. If this is found, the Tribunal has failed to have regard to information it sought and in doing so has breached section 424(1) of the Migration Act. In doing so, the Tribunal has fallen into jurisdictional error.

   [12] Affidavit of Pamela Anne Summers sworn 29 September 2008 at [2]

6. The Minister submits that the Tribunal did not commit any jurisdictional error. In relation to s.424A the Minister submits:

   The second complaint now raised is that the Applicant was entitled under s 424A(1) to a copy of Mr Barcella’s email of 15 August 2007. That email did not contain any information within s 424A(1) as it did not in its terms constitute a rejection, denial or undermining of the Applicant’s claims to be owed protection obligations within s 424A(1): SZBYR v MIAC (2007) 235 ALR 609 (HCA) at [17]; SZICU v MIAC [2008] FCAFC 1, 100 ALD 1 at [26]; SZGIY v MIAC [2008] FCAFC 68 at [23]. It was simply a response by Mr Barcella to the nature of the inquiries which the Tribunal then proposed, but said nothing about the Applicant at all. It follows that “particulars” of it were not required to be given (and still less the actual email as “particulars” does not require the original document to be provided: SXRB v MIMIA [2006] FCAFC 14 at [9]). It follows that there is no breach of s 424A.

7. In oral submissions, counsel for the Minister also submitted that sufficient particulars of the email from Mr Barcella were disclosed in the second s.424A letter sent to the applicant to ensure that the applicant understood the significance, if any, of the email from Mr Barcella.

1. In relation to the asserted breaches of s.424 the Minister submits:

   The Amended Application claims that the Tribunal did not comply with s 424 of the Act. It appears from the Applicant’s Submissions that the basis of this ground is that while the Tribunal’s inquiries of Mr Barcella, Ms Topuria’s legal counsel, were in writing (CB 83, 116, 117), Mr Barcella was advised by Ms Topuria’s sister, who had spoken to Ms Topuria in prison: CB 118. The submission is apparently that because if the Tribunal had telephoned Ms Topuria directly this would be a breach of s 424 following SZKTI v MIAC (2008) 168 FCR 256 (FC) (which case is formally submitted to be wrongly decided), the oral communication relayed from Ms Topuria to her sister and then to Mr Barcella is also a breach of s 424. The Applicant relies upon the comments in SZKCQ v MIAC (2008) 170 FCR 236 (FC) at [74-75] per Buchanan J.

   Section 424(2) provides that “the Tribunal may invite a person to give additional information”. Even if there may be fact situations where such an invitation is made indirectly (as Buchanan J appears to have had in mind on the facts of SZKCQ, based presumably on para “C” of the request noted in SZKCQ at [15]), it cannot be said in this case that there was any invitation, direct or indirect, to Ms Topuria or her sister. The relevant communications from the Tribunal were only to Mr Barcella and asked him and no-one else for information. The fact that he may as a result have spoken to other people is irrelevant as there is no basis to suggest any persons other than Mr Barcella were invited by the Tribunal to give information. There is accordingly no basis to suggest that Ms Topuria or her sister were invited by the Tribunal to give information, and the form of their communication with each other or Mr Barcella is thus irrelevant. Accordingly there is no breach of s 424.

   While not pleaded, the Applicant’s Submissions also criticise the likely veracity of the information that the Tribunal obtained from Mr Barcella. This is irrelevant to the operation of s 424: Win v MIMA (2001) 105 FCR 212 (FC) at [17-23]. The Tribunal put the information it received from Mr Barcella to the Applicant pursuant to s 424A (CB 155.9), and considered his response. It did not need to do more.

   The Applicant now claims that the Tribunal failed to have regard to an email from Mr Barcella of 15 August 2007 which was not reproduced in the Court Book.  That email has now been located and is attached to Ms Palmer’s affidavit.  As it is specifically referred to by the Tribunal at CB 161.2 the suggestion that the Tribunal did not “have regard” to it (in the sense of an active intellectual process: Singh v MIMA (2001) 109 FCR 152 (Sackville J)), as required by s 424(1) of the Migration Act 1958 (the Act) is baseless, especially as the subsequent email sent at CB 117 is responsive to Mr Barcella’s comment that some of the inquiries requested of Ms Topuria seemed unnecessarily personal.

   The Applicant’s other complaint concerning s 424, that there was an invitation to Ms Topuria to give additional evidence within s 424(2), has already been addressed in paras 6-7 of the First Respondent’s Submissions.

   It follows that there is no breach of s 424.

Reasoning

1. There have been significant developments in Georgia relevant to the applicant’s protection visa claims since the Tribunal decision. In particular, the military adventurism of the Georgian government in South Ossetia in August 2008 using American trained and equipped forces, and the predictably heavy handed Russian response, substantially heightened tensions both within Georgia and between Georgia and Russia. Whatever may be the outcome of these proceedings, those developments could be taken into account by the Minister should he be minded to reconsider the Tribunal’s decision. 

2. Secondly, the approach taken by the Tribunal to test the veracity of the applicant’s claims by raising them with Ms Topuria’s legal advisor was a clumsy one. The series of emails and responses, the expanding and contracting list of questions and the failure by the Tribunal to refer the baptismal certificate relied upon by the applicant to Ms Topuria for comment raise questions about the reliability of the Tribunal’s conclusions on the applicant’s credibility. The Tribunal reasoned that the applicant was untruthful in claiming Maya Topuria was his godmother based upon the hearsay comments of Mr Barcella without knowing whether the information conveyed by him was based upon his discussion with Ms Topuria, discussion between Ms Topuria and her sister which were then relayed to Mr Barcella or, indeed, whether the questions ultimately posed by the Tribunal were ever put to Ms Topuria. The Tribunal also reached the highly unusual conclusion that the applicant had a godmother with the same name as Ms Topuria who was (so the Tribunal assumed) a different person. That was based upon the baptismal certificate which the applicant had supplied which apparently identified Ms Topuria as his godmother. It would have been far better if that certificate had been put to Ms Topuria for comment. These observations, however, go to the merits of the Tribunal decision which are beyond the scope of this proceeding.

3. I find that there was no breach of s.424A of the Migration Act in this case. In the first place, the statements by Mr Barcella in the email annexed to Ms Palmer’s affidavit were not “information” for the purposes of that section. The email relevantly states:

   Dear Ms. Henderson

   Thanks for your response.  I will be travelling to Georgia this weekend and will see Ms. Topuria on Monday and discuss this with her and see whether she knows [the applicant].  I must say, however, some of the questions seem unnecessarily personal, specifically those involving her children, her sisters children and their paternity, if the purpose is to test the veracity of [the applicant’s] claims.  I certainly understand questions regarding his political involvement and would understand additional questions in that area, but the personal questions about Ms Topuria and her sister seem attenuated to the inquiry.

   Regards

   Larry Barcella

4. This was not information which objectively had any adverse effect upon the applicant’s claims[13]. Further, to the extent that what was said by Mr Barcella in that email needed to be disclosed in order for the applicant to understand the other emails disclosed by the Tribunal, there was sufficient disclosure in the annexures to the second s.424A letter which stated[14]:

   The Tribunal contacted legal counsel for Maia Topuria who had enquiries made with Maia Topuria.  Those enquiries indicate that whilst Maia knows an individual with the last name …, she does not recall a [applicant’s name] and certainly he is not her godson.  She is not aware of your situation. …

   [13] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]

   [14] CB 155

5. The Tribunal research response annexed to the letter[15] disclosed that:

   On 15 August 2007, Barcella advised the Tribunal that he would discuss the matter with Maia Topuria but was concerned that some of [the] questions were unnecessarily personal.

   [15] CB 161

6. It was unnecessary for the Tribunal to attach the email from

   
   

   Mr Barcella to the substantial body of material supplied with the second s.424A letter[16]. I make no finding whether that email was in fact included with that material. 

   [16] SXRB v Minister for Immigration [2006] FCAFC 14 at [7] and [9]

7. Neither did the Tribunal breach s.424 in this case. The applicant’s submissions rely upon the decision of the Full Federal Court in SZKTI v Minister for Immigration [2008] FCAFC 83; 168 FCR 256. That decision is subject to appeal in the High Court and the Minister formally submits that it was wrongly decided. Subject to the decision of the High Court I am bound by the decision of the Full Federal Court. However, this case can be distinguished from SZKTI. The applicant concedes that there was no breach of the section (leaving aside the question of whether the information provided by Mr Barcella was taken into account) if the request for information is characterised as a request to Mr Barcella rather than to Ms Topuria. Essentially, the applicant complains that the request was in substance a request to Ms Topuria and that that request did not meet the requirements of the section. The applicant relies upon the decision of the Full Federal Court in SZKCQ v Minister for Immigration (2008) 170 FCR 236 where the Court was asked to consider whether the principle in SZKTI applied equally in circumstances where the Tribunal had sought the information through a third party[17]. The Court did not decide that question although at [74]-[75] his Honour Buchanan J said:

   In SZKTI the RRT sought information from a person known to the applicant. It sought the information by telephone. The Full Court held that was impermissible. In the present case the RRT sought information, not only from the appellant but also, through the High Commission in Islamabad, from Mr Abbas and Mr Khalid. Although the request to the High Commission was in writing there is nothing to suggest that the invitation to provide information which was extended to Mr Abbas and Mr Khalid was in writing. It could only have been an invitation as both gentlemen were beyond the reach of any compulsive power possessed by the RRT. Prima facie, therefore, the provisions of s.424(2) were engaged also with respect to the additional information sought from each of them.

   In his supplementary submissions about SZKTI, and in the amended notice of appeal, counsel for the appellant relied on this additional matter to suggest another example of jurisdictional error in the processes followed by the RRT. The discussion by the Full Court explaining why the RRT was required to act strictly in conformity with s 424 gives support to the submission. However, it is not necessary to pursue the matter in the present case. There was no oral argument addressed to this issue. It only arose after the parties were given leave to make submissions about SZKTI. The respondent has not had an adequate opportunity to deal with it. A conclusion about the issue could not alter the outcome but only possibly provide another reason for it. In the circumstances I do not think it necessary to decide this additional argument and I would not give the appellant leave to rely upon it.

   [17] in that case the Australian High Commission in Islamabad

8. I reject the characterisation of the request as a request made to

   
   

   Ms Topuria rather than Mr Barcella. It is relatively common for the Tribunal to request information from persons who may have to pursue other enquiries in order to provide a response. If the Tribunal makes a written request to a person in the knowledge that that person will make other enquiries in order to provide a response, the Tribunal does not breach s.424 simply because the person who is the recipient of the request makes oral enquiries. In SZBQS v Minister for Immigration [2008] FMCA 812 I dealt with somewhat similar circumstances. At [24] I said:

   Importantly, in this case the request was made in writing.  That is a considerable distinguishing feature of this case.  While it is true that the letter did not explicitly specify the way in which the information requested was to be given, the request implicitly required a written response, given that the request was a formal one in writing.  Of course, the request had to be in writing, but it was expressed as a formal request for information or advice, which in my view could have no interpretation other than as a request for a written response.  The scheme of s.424B is to distinguish between invitations calling for a written response and invitations calling for an oral response at an interview.  In the absence of an invitation to attend an interview, it is in my view clear from the letter that a written response was called for.  The obligation to “specify” the manner of the response contained in s.424B(1) is not in my view breached when it is obvious from the invitation what manner of response was called for.  A written response was given.  Further, the letter specifically asked Mr Ahmed to make inquiries about the applicant to the Office of the Bangladesh National Amir to confirm the authenticity of letters purportedly from that body furnished by the applicant.  I reject counsel for the applicant’s contention that the approach by the Australian Association to the Amir in Bangladesh was itself a s.424 request that was required to be in writing.  In my view, it is sufficiently clear from the Tribunal’s letter that the response called for was a written response providing information gathered from the Ahmadiyya organisation in Bangladesh about the authenticity of the applicant’s documents and about the accuracy of his claim to have been an Ahmadi in Bangladesh.

9. I reach the same conclusion in this case. The various requests to Mr Barcella to provide information were given in writing (albeit electronically by email). A written response was called for and the plain expectation of the Tribunal was that a response would also be given by email. The request was plainly directed to Mr Barcella. It did not cease to be a request to Mr Barcella simply because the request was made in the knowledge and expectation that Mr Barcella would make enquiries of Ms Topuria.

10. Further, there is no doubt that that Tribunal considered the response of Mr Barcella. The response is referred to in the second s.424A letter which is reproduced in the Tribunal decision[18]. The Tribunal was entitled to regard Mr Barcella’s concern about the personal nature of its initial questions as irrelevant, once those questions were abandoned. It is true that the concern expressed by Mr Barcella may be considered to lend some support to the response by the applicant to both s.424A letters that, because of her circumstances, Ms Topuria would be reluctant to disclose her connection to the applicant. Nevertheless, the Tribunal took into account the applicant’s response and rejected it[19].

    [18] CB 249

    [19] CB 265

11. I find that the Tribunal decision is free from jurisdictional error.

12. I will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 February 2009