SZMGY v Minister for Immigration
[2008] FMCA 1245
•4 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1245 |
| MIGRATION – Review of RRT decision – where applicant claimed Tribunal erred in finding that the applicant was not subject to conscription into the army in Algeria – where applicant claimed Tribunal’s failure to take into account evidence concerning search warrant and visits by the gendarmerie constituted jurisdictional error – whether such evidence was overlooked by Tribunal – whether evidence considered but rejected by Tribunal – whether Tribunal failed to identify to the applicant this issue in accordance with s.425 Migration Act 1958 (Cth) – whether Tribunal breached s.424A by failing to provide the applicant with the information that the absence of an official call-up notice indicated that his service in the military was not required – whether this constituted “information”. |
| Migration Act 1958, ss.424, 424A, 425 Legal Aid Commission Act 1979 (NSW), s.47 |
| Minister for Immigration v Yusuf [2001] HCA 30 Craig v South Australia (1995) 184 CLR 163 SFGB v Minister for Immigration [2003] FCAFC 231 M164/2002 v Minister for Immigration [2006] FCAFC 16 SZEHN v Minister for Immigration [2005] FCA 1389 WAEE v Minister for Immigration [2003] FCAFC 184 SZBEL v Minister for Immigration [2006] 228 CLR 152 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 Woodland v Permanent Trustee Company Ltd [1995] FCA 1388 Dinnison v Commonwealth of Australia [1998] FCA 637 Bass v Permanent Trustee Co Ltd [1999] HCA 9 Minns v State of NSW (No 2) [2002] FMCA 197 |
| Applicant: | SZMGY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1265 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 August 2008 |
| Date of last submission: | 26 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Graycar |
| Solicitors for the Applicant: | Legal Aid Commission |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay through the Legal Aid Commission the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1265 of 2008
| SZMGY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Algeria. He arrived in Australia on 26 October 2007. He was detained at the airport on arrival because he was utilising a French passport that was believed not to belong to him. At first he insisted he was the person named in the passport, but later sought Australia’s protection and provided authorities with his real name, date of birth and country of origin. He completed an application form for a protection visa in pro forma on 29 October 2007 and a more complete application on 8 November 2007. A delegate of the Minister refused to grant him a protection visa on 19 December 2007 and the applicant applied for review by the Refugee Review Tribunal on 20 December 2007. The Tribunal invited the applicant to a hearing which he attended. Following the hearing there was correspondence between the Tribunal and the applicant concerning issues about which the Tribunal had concern. On 22 April 2008 the Tribunal determined to affirm the decision under review, and notified the applicant on the same day through his solicitor.
The circumstances which led the applicant to claim to be a person to whom Australia owed protection obligations were that he was a single man whose father had been a member of the Algerian gendarmerie and had been killed in September 2003. His brother was an Algerian policeman who had also been killed in April 2007. The applicant had received a letter in September 2007 inviting him to go to a recruiting office for consideration for national service. The applicant had previously obtained deferrals of his national service obligations because of studies (he obtained a degree in economics in 2006) and at the interview in September 2007 sought exemption on the grounds of a medical condition in his right hip. The exemption was refused by the lieutenant conducting the interview who stated that, as a child of a former serving gendarmerie officer, he should not only undertake his military service but should join the military as a long-term career option. It was made clear to the applicant that he would not be required to serve in the front line but could work in an office.
The applicant:
“…told the lieutenant that he did not wish to join the army and that he wished to consult a lawyer, but the lieutenant told him he could not see the lawyer and that the army would decide. He said that it was clear to him that if he insisted he would not join he would be arrested and no one would know where he was. He said that torture and killing by the army was common in Algeria. He interpreted the lieutenant’s remarks as implying that he would be regarded as a traitor if he refused. So he pretended to agree to join, so that he would be able to leave and think about what he should do.” [CB 415]
The applicant was unable to leave Algeria legally because he had no passport, and in any event no exit permit would have been granted whilst he was required for military service. He found a people smuggler who arranged for his travel to England for a sum of money said to be 40,000 Algerian dinars. The smuggler was also given a further 30,000 dinars which would be converted into English pounds when the applicant arrived in that country. When the applicant did arrive in England he was persuaded from applying for asylum in that country by the people smuggler who promised, for a further £1,000, to obtain the passport and documents which the applicant used to travel to Australia.
In its reasons for decision the Tribunal extracted a considerable quantity of independent country information concerning military service in Algeria. This information is not entirely consistent, but it does seem to indicate that military service is not necessarily required of all young Algerian males and that there is a marked preference for taking into the army educated young men. There are certain exemptions from the requirement to undertake military service, including exemptions for the sons of persons killed in the war of independence and for single children supporting parents.
In its rehearsal of the evidence given by the applicant, the Tribunal prepared a précis of the applicant’s claims [CB 421] which included the following:
“You fear that if you return to Algeria, you will face harm for three reasons:
· First, you will be punished for leaving the country illegally.
· Second, you will be persecuted because you will be regarded as a traitor for not agreeing to a permanent career in the military.
· Third, if you are forced to join the military, you will be targeted by terrorists who are opposed to the Government.
The applicant accepted this as a fair summary of his situation and claims.”
The Tribunal questioned the applicant about the deaths of his father and brother and offered to make enquiries to establish the truth of these claims. It agreed that it would only make enquiries concerning one of the two, the brother, because otherwise it might be said that the Algerian authorities could identify the applicant. In the end the enquiries took too long and the Tribunal accepted the truth of the applicant’s statements in regard to these family members. The Tribunal also questioned the applicant about his concerns in joining the army and his fears and about some of the information contained in the independent country information about exemptions from conscription. It then turned to the events surrounding the interview with the army lieutenant:
“The Tribunal asked if the applicant went to the recruiting office on the day specified, that is 6 October 2007. He said he did. The Tribunal asked if the applicant or his family had received any further approaches from the Government after the day of the interview, 6 October 2007. He said there were no further such approaches, but he was aware that there was a search warrant for him now. He had not taken a copy of the document he signed on 6 October 2007. He was told that he would have to report to a place outside Algiers and that he would be telephoned and told the details. When he told the lieutenant that they did not have a working telephone at his house, he was advised the letter would be sent to him. The Tribunal asked if such a letter had been sent. He said none had been received by the time he left Algeria. The Tribunal asked if he had any evidence to corroborate his claim that he was pressured to join the military on a long term basis. He said he had no official documents to that effect.” [CB 424]
The Tribunal questioned the applicant about the travel arrangements to get to London and why he had not sought asylum in the United Kingdom. It asked him why he had not applied for protection immediately he had landed in Australia, and then commences a lengthy rehearsal of evidence concerning the amount of money given to the people smuggler, the manner in which it was expressed and its conversion value. This discussion continues into a section marked “Post-hearing submissions” and makes reference to a letter dated 7 February 2008 sent by the Tribunal to the applicant’s lawyer [CB 210]. Three matters are referred to that in letter. The first relates to currency conversion, the second relates to information about exemptions from national service and the third is in the following form [CB 211]:
“Further Documentation
The Member wishes to confirm his understanding that, at the hearing, you and your agent agreed to try to obtain and submit the following:
· A more complete translation of the summons document dated 23 September 2007;
· Any documentation your family may have confirming the circumstances of the deaths of your father and brother while on duty; and
· Any official documentation relating to your national service obligations, issued at or subsequent to the interview on 6 October 2007.” [emphasis added]
The applicant responded to that letter by way of a statutory declaration [CB 352 – 354] which includes the following:
“[16] When I spoke to my mother I also asked her if any letters had come from the army to tell me where I would be posted to do my military service. She told me that no such letter had come, but that the gendarmerie had [c]ome to the house two times to ask where I was. My mother told me that she said: “My son is not here. He’s gone to Europe.”
[17]I do not know why the letter telling me where I was to serve my military service was not received by my mother, but the fact they came to the house twice shows that they want me for evading my military service.”
On 12 March 2008 a further letter was sent by the Tribunal to the applicant’s lawyer, which related to the evidence concerning the money paid to the people smuggler. That letter was responded to by way of a letter from the lawyers on 19 March 2008 and a further statutory declaration of the applicant [CB 391-392]. That statutory declaration includes the following:
“[14] Following those conversations [with my mother] I telephoned Mourad [a friend in Algeria] on Saturday 8 March to ask him what were the 3 letters that my mother held. Mourad advised me that there was 1 letter from the English college I attended in Algiers and the other 2 letters were from old university friends. There was nothing from the army for me.”
There is a reference in the transcript to the applicant advising the Tribunal that a search warrant had been issued for him by the Algerian authorities. [T7]
The Tribunal’s findings and reasons commence at [CB 429]. Notwithstanding the very considerable emphasis placed upon the evidence concerning the money paid to the people smuggler the Tribunal concluded [CB 431]:
“In all the circumstances, the Tribunal is not satisfied that the applicant was smuggled out of the country illegally, as he claims to have been. However, while the Tribunal considers this undermines his credibility, it is not fatal to his claim that he left Algeria to avoid conscription.”
The Tribunal then turned to the evidence which the applicant had put forward to support this contention and the Tribunal’s view of it. It accepted that the applicant had gone to an interview on 6 October 2007 on the basis of a document that the applicant had produced, but it did not accept what it described as the “inferences” that the applicant had drawn in relation to what might happen as a result of that interview. It did not accept that the Algerian military would regard him adversely for rejecting a lifelong career in the army or that it would consider him a traitor, nor did it accept that the lieutenant who conducted the interview insisted that the applicant should sign up for a long career on the spot. It then came to the gravamen of its decision [CB 431-432]:
“Third, the applicant has advised the Tribunal subsequent to the hearing that there has been no correspondence from the military received at his home. The Tribunal has considered the applicant’s point that his mother was afraid to release correspondence about his father and his brother, but he has made it quite clear that his friend who checked on his behalf verified with his mother that there had been no correspondence from the military …
Indeed, it is for this last reason that the Tribunal does not accept that the applicant is now subject to conscription. Independent evidence cited above and discussed with the applicant indicated that a person in the applicant’s particular circumstances might now be exempt from conscription. The Tribunal accepts that this evidence is not clear-cut and that, as the applicant claims, what happens in practice may not necessarily coincide with what the official regulations say.
However, the applicant did state that he expected to be told by letter where and when he was to report for military duty. In these circumstances, the Tribunal regards the absence of any official call-up notice as indicating that, following the interview, the applicant’s service was not required. While noting his claim that he was told he would not be required to serve in the front line because of his medical condition, the Tribunal regards his medical condition as being a sound reason why, on reflection, the military might decide not to conscript him.
Had the military decided to conscript him after the interview on 6 October 2007, the Tribunal would have expected them to issue a call-up notice (as distinct from the notice which required him to come for an interview). The Tribunal therefore finds that the applicant is not now required for conscription in Algeria. It follows from this finding that the Tribunal does not accept that the applicant will face any punishment for avoiding conscription, or would in any way be regarded as being a person who has relocated abroad to evade conscription.”
The Tribunal also dealt with some other matters which are not of concern in these proceedings.
There are three grounds to the application made in this court to review the decision of the Tribunal. These are:
1. The Refugee Review Tribunal fell into jurisdictional error in so far as it failed to have regard to relevant evidence.
Particulars
The Tribunal found that the Applicant was not subject to conscription into the army in Algeria. According to the Tribunal’s reasons, this finding was based on the Tribunal’s finding that no correspondence from the Algerian military had been received at the Applicant’s home.
The Applicant provided evidence to the Tribunal (a statutory declaration declared on 5 March 2008) that since his departure from Algeria his house had been visited twice by Algerian gendarmes seeking his whereabouts. The Tribunal failed to have regard to this evidence in making its finding that the Applicant was not subject to conscription.
During the hearing the Applicant gave evidence that he was aware that a search warrant had been issued for him by the Algerian authorities. This is confirmed in the Tribunal’s account of the evidence given at the hearing. The Tribunal failed to have regard to this evidence in making its finding that the Applicant was not subject to conscription.
2. The Tribunal fell into jurisdictional error by failing to comply with its obligations under s425 of the Migration Act, in that it failed to provide the applicant with an opportunity to give evidence and present arguments relating to an issue arising in relation to the decision under review.
Particulars
The Refugee Review Tribunal did not inform the applicant that an issue arising in relation to the decision under review was the fact that the absence of any official call up notice from the Algerian military indicated that the applicant’s service in the military was not required.
3. The Tribunal fell into jurisdictional error by failing to comply with its obligations under s424A of the Migration Act, in that it failed to provide the applicant clear particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, and by failing to invite the applicant to comment or respond to it.
Particulars
The Tribunal did not inform the applicant that the absence of any official call up notice from the Algerian military indicated that the applicant’s service in the military was not required.
[Amended application filed 20 August 2008]
Discussion
The applicant argues that the Tribunal’s failure to take into account the evidence concerning the search warrant and the visits by the gendarmerie constituted the type of jurisdictional error identified by the High Court in Minister for Immigration v Yusuf [2001] HCA 30 at [82], approving the dicta in Craig v South Australia (1995) 184 CLR 163 at [179] where the court held:
“If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
The applicant’s submissions continue with extracts from SFGB v Minister for Immigration [2003] FCAFC 231 at [19] and M164/2002 v Minister for Immigration [2006] FCAFC 16 which both make reference to the making of a finding that is a critical step in the ultimate conclusion where there is no evidence to support that finding. I am not sure that looking at this matter on a “no evidence” basis is the correct approach. The Tribunal relied on the applicant’s own evidence that he had not received a letter from the army advising him where to attend for his induction to allow it to reach the conclusion that he had not been inducted. What the applicant is really arguing is that the Tribunal appears not to have taken into account, or considered, the other evidence given by the applicant that a search warrant had been issued and that the gendarmes had come to his house on two occasions.
The first matter is to consider is whether or not it can be said that the evidence was overlooked. In SZEHN v Minister for Immigration [2005] FCA 1389 Lindgren J said at [58]:
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”
In WAEE v Minister for Immigration [2003] FCAFC 184, referred to by Lindgren J, the Full Bench indicated at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In these extracts the court was referring to an issue, which must be distinguished from evidence. The decision is noted by Lindgren J in SZEHN at [72]:
“If the references were overlooked, jurisdictional error would not be established. The distinction has been recognised between overlooking evidence which, if accepted, might have led the Tribunal to make a different finding of fact, and overlooking evidence which, if accepted, might have led it to find a well-founded fear of persecution established: cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]–[89], Applicant WAEE (at [46]), MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [25]–[28], and Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] per Cooper and Finkelstein JJ. The principle underlying the distinction is that the Act does not prohibit the making of wrong findings of fact; it requires a review with a view to the Tribunal’s deciding if it is satisfied that the applicant has a well-founded fear of persecution for a Convention reason. Only an overlooking of evidence which might have persuaded the Tribunal to be so satisfied, would amount to jurisdictional error, and it is only for jurisdictional error that the Tribunal’s decision can be set aside notwithstanding the privative clause in s 474 of the Act; Plaintiff S157.”
The respondent argues that if the evidence was overlooked, which it does not accept, this is not evidence which might have persuaded the Tribunal to be satisfied of the applicant’s well-founded fear. I am not as sanguine about this submission as the respondent. It was the non-existence of a letter relating to induction that formed the basis of the Tribunal’s decision. The evidence about the gendarmes coming to the applicant’s house and the reference in the transcript to the search warrant went directly to this question. As the applicant’s counsel submitted, the gendarmes could have been carrying with them the induction letter that the army had entrusted to them rather than having sent it through the post. If the evidence about the gendarmes had been accepted, then it would have overcome this hurdle towards the establishment of a well-founded fear at which the applicant’s case was stopped. But what is “accepted”? It is not enough that the Tribunal accepts the truth of the gendarmes’ visit and the existence of the search warrant. It would have to be satisfied that the visits and the warrant both related to the applicant’s induction and failure to respond to the call. There may have been other reasons why the gendarmes would call upon the applicant or issue a search warrant. In this regard I would say that I have serious concerns about the reference to the search warrant being in any way dispositive. I cannot understand exactly what is meant by a “search warrant”. It seems to me to be no more than an indication that the gendarmes were searching for him rather than wishing to search the premises for evidence, which is the normal reason for the issuance of such a warrant. In regard to the gendarmes’ visit, whilst that could well have been brought about for the purposes of the delivery of the induction notice or for some other reason connected with the applicant’s failure to attend for induction, the visits could equally have been for another purpose known to the applicant but undisclosed or (as the applicant was not there) unknown to the applicant.
When the circumstances are analysed in this way it is more difficult to say that the Tribunal failed to consider the evidence, and easier to say that it fell into the category of evidence considered but rejected as not probative, and not referred to. In my view this is the correct approach to take to the omission of reference to these matters in the Tribunal’s findings and reasons, rather than to hold that the Tribunal failed to take them into account.
The second ground of the application is explained by the applicant in his written submission as follows:
“[34]An additional basis for setting aside the decision is that the Tribunal failed to accord the applicant procedural fairness. Specifically, the Tribunal failed to put to the applicant the critical factors upon which its decision was likely to turn. In particular, the Tribunal did not inform the applicant that it believed he was not subject to conscription on the basis that no correspondence from the Algerian military had been received at the Applicant’s home.
[35]As noted above, the Tribunal placed great weight on the absence of a letter to the applicant outlining his military service obligations. The failure to provide procedural fairness lies in the Tribunal having failed to put to him directly, and give him an opportunity to respond to, the evidence that led it to conclude that he was not subject to conscription (ie, the absence of any letter demonstrating that he was so subject).”
The applicant supports these contentions by a further submission that the course of correspondence between the Tribunal and the applicant by concentrating on the currency conversion issue would have led the applicant to conclude that the Tribunal was rejecting his claim on that issue, and was not further considering the conscription issue. Dealing first with the complaint that the Tribunal failed to tell the applicant that the decision was likely to turn upon the question of his not being subject to conscription, I am bound to consider whether the issue was raised at the hearing. There is no doubt in my mind that it was. At [T17], after explaining that he had signed a paper agreeing to serve in the military if called, the following exchange took place:
“Mr MacCarthy: Did you receive any further approaches from the government, you or your family, after the day of the interview?
App: No, sir, but I know there is a search warrant which has been issued for me.
Mr MacCarthy: When you signed the document did you take a copy of that or anything?
App: No, no copy.
Mr MacCarthy: What did that oblige you to do? Now, let’s just assume that you’d go along with it all, so on the 6th you signed the documents, so what were you supposed to do, were you supposed to then go into Algiers? You lived in Algiers, didn’t you?
App: I live in Algiers.
Mr MacCarthy: Were you supposed to go to a particular place?
App: Yes, I had to go somewhere away from Algiers since – any bit of Algiers when doing his military service.
Mr MacCarthy: So you had to report to a particular place; did they tell you when that was?
App: They told me they would ring me, but I said my phone wasn’t working, so they said, “I will send you a letter”.
Mr MacCarthy: Did they ever send that letter?
App: I don’t know. They sent the letter during the period I was in Algeria.
Mr MacCarthy: I imagine that you would have given it to Mr Gerogiannis and he would have given it to me if there were, but I’m asking just to be absolutely certain whether there is any evidence to corroborate, to support, to prove your claim that you were pressured to join the military on a long-term basis.
App: There’s no official document.
Mr MacCarthy: How soon was it after you were interviewed on 6 October that you decided you should leave the country?
App: I almost more or less decided on the spot when I was told that I couldn’t access a lawyer, no access to a military tribunal.
Mr MacCarthy: So basically on the same day?
App: Yes, it was the same day. As soon as I signed the paper I went for a walk along the waterfront and I told myself, “Must leave the country”.
At [T 26] there is a discussion between the Tribunal and the applicant’s adviser concerning the finding of further evidence concerning the family support exemption from national service. In this regard the Tribunal said:
“Mr MacCarthy: I’ll wait and see where I.. (not transcribable).. on that, but I think it is a potential reason to make it; it could be the basis of that. I wouldn’t want you to feel that it’s not high, it’s not significant in that sense. Given what I’ve seen there, that’s one of the things I have to wrestle with, and that is the issue of – at the moment what I have is documentary evidence that there was a call-up, and then everything else from there is oral assertion, and so my reading would suggest that – I could say, “Well, I don’t really think he did face this”, but on that point you say that you don’t have documentation in Australia, but perhaps you could call your mother. Is that possible, are you able to contact your mother and get any documentation that has since come? There would be a letter saying you’d been called up.
Mr Gerogiannis: For the posting, you mean?
Mr MacCarthy: Yes.
Mr Gerogiannis: This is the call-up, then there’s the follow-up letter for when you’re going to be posted.
Mr MacCarthy: This is the call-up for the interview.
App: I shall call my mother about it. I don’t call her directly, I go through an intermediary called Morad, and he returns back to my mother.
Mr MacCarthy: I understand that. Things like, as I say – because unfortunately the only thing is that I’ve got – leaving aside my personal impressions of you and what you’ve told me and so on, what I have is I’m quite happy to accept that’s a genuine notice that you’ve finished your studies so that the military administration grinds on and they say, “Okay, you’d better come in”, but my reading sort of implies that such a person might (a) be able to get out on the basis of being the only son left, and so it’s possible that nothing else would have happened beyond 6 October
So if can get some more documentation, you know, it says, “Here’s the letter that says ‘no, you are to report. If there was a copy, if your mother had received anything to say that the authorities were not searching for you because you didn’t meet that requirement, then that would support that story, because, you see, the alternative is an alternative of an Algerian man arriving with a false passport in Australia; is that this is a person who left Algeria quite normally with a passport issued in his own name, wanted to come to Australia for work, couldn’t get a visa to come to Australia as an Algerian because we probably wouldn’t give such a person a visa – a young single Algerian man – got a false French passport to come out on a tourist visa.”
The applicant supports his argument by reliance on the following extract of the decision in SZBEL v Minister for Immigration (2006) 228 CLR 152 at [47]:
“[w]here, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted."
and the extract from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at [591-592] cited in SZBEL at [29]:
“[39]Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provision views to comment before making the decision in question.”
But the applicant has been somewhat selective in his quotations. Perhaps it would have been better to set out the whole of [47] in SZBEL which is in the following form:
“[47]First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
To my mind the exchanges between the Tribunal and the applicant recorded in the transcript sufficiently evidence that the issue of the applicant being selected for conscription following the interview was discussed, and it was made clear to him that this was an important matter in the Tribunal’s consideration of his case. I do not think that the applicant’s arguments in relation to s.425 Migration Act 1958 (the “Act”) based upon SZBEL can be made out in the light of that discussion. I am equally of the view that as the s.424A letter of 7 February 2008 [CB 210] made reference to the fact that the agent had agreed to try and obtain and submit any official documentation relating to the applicant’s national service obligations issued at or subsequent to the interview on 6 October 2007, the applicant could have been under no illusions that this was not a matter which would influence the Tribunal’s decision. The letter of 7 February 2008 is also important because it mentions the currency conversion issue which was the subject of the later letters so that it would have been clear to the applicant that this was just one of the issues that was concerning the Tribunal. Whilst I accept that the subsequent letters of the Tribunal concentrated on the currency conversion issue I am not satisfied that this indicated that the non-existence of post-October 7 correspondence was no longer a matter of concern to the Tribunal. The Tribunal was not expected to repeat in every subsequent s.424A letter requests for information made in an earlier one. In the absence of any clear indication from a Tribunal an applicant should consider the effect of a series of s.424A letters as cumulative. In any event the applicant is not arguing that he was misled into believing that there was no further requirement for correspondence which he could have obtained if he had realised that the issue was still a live one. There was no correspondence. I am satisfied there was no breach of s.425 of the Act in relation to this issue.
The third ground in the Amended Application attempts to put the failure to provide the applicant in writing with information that the absence of an official call-up notice indicated that his service in the military was not required within s.424A of the Act. There seems to me to be a number of difficulties with that argument. The first is that the information that there was no further correspondence came from the applicant himself at the hearing in response to questions. As such it is exempt from the provisions of s.424A by the provisions of sub-s.424A(3)(b). The second problem is that the applicant is seeking to make the existence of an issue itself a piece of information. This the court has rejected. It is well settled that the concept of information does not 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: see VAF v Minister for Immigration [2004] FCAFC 123 at [24] per Finn and Stone JJ; NBKT v Minister for Immigration [2006] FCAFC 195 at [30] per Young J (with whom Gyles and Stone JJ agreed) and the authorities cited therein.
I am not satisfied that any of the three grounds maintained by the applicant establish jurisdictional error on the part of the Tribunal. I dismiss the application.
Section 47(1) of the Legal Aid Commission Act 1979 (NSW) (“the Commission Act”) provides that when a court or tribunal makes an order as to costs against a legally assisted person, the Legal Aid Commission, rather than the legally assisted person, is to pay the whole of the cost. Subsection (2) states that the Legal Aid Commission shall not pay an amount in excess of $5,000.00 (or such other amount as the Commission shall from time to time determine). The current maximum amount stands at $15,000.00. However, the reference in subsection (1) to a “court or tribunal” is a reference solely to a State court or tribunal and it has been considered that the provisions do not apply to courts of federal jurisdiction: see, in this regard, Woodland v Permanent Trustee Company Ltd [1995] FCA 1388 and Dinnison v Commonwealth of Australia [1998] FCA 637. In Bass v Permanent Trustee Co Ltd [1999] HCA 9 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ dealt with this question and determined that in the circumstances of the case it was “inappropriate to answer” whether s.47 of the Commission Act applied to the Federal Court (at [64]). However, their Honours said at [65]:
“It seems clear enough that were the question whether s 79 of the Judiciary Act "picks up" s 47 of the Legal Aid Commission Act to arise in proceedings to enforce a costs order of the Federal Court, it would be answered "No". That is because s 43 of the Federal Court of Australia Act provides as to the costs of proceedings in that Court and, thus, otherwise provides for the purpose of s 79 of the Judiciary Act. It is clear that that was the issue intended to be raised by the question referred to the Full Court. However, that question has not yet arisen. Accordingly, question 5 [whether the applicants were protected by s.47 against liability for the payment of the whole or any part of the costs that might be orders by the Court against them if unsuccessful in these proceedings] should also have been answered "Inappropriate to answer".
See also Minns v State of NSW (No 2) [2002] FMCA 197 where I affirmed that s.47 of the Commission Act does not apply to proceedings in the Federal Magistrates Court.
In all the circumstances this discussion is probably moot as I propose to order that the applicant through the Legal Aid Commission pay the respondent’s costs assessed in the sum of $5,000.00.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 4 September 2008
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