SZMSI v Minister for Immigration
[2009] FMCA 735
•6 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 735 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.422B(3) of the Migration Act 1958 is concerned with ensuring that div.4 of pt.7 of the Act is applied in a way which is procedurally fair and just – the Tribunal’s obligation to provide an applicant with a procedurally fair hearing affects the Tribunal’s dealings with the applicant not third parties – s.424A requires provision of information not copies of documents containing that information. |
| Migration Act 1958, ss.422B, 424, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 SZLLY v Minister for Immigration & Citizenship [2009] FCA 185 Kioa v West (1985) 159 CLR 550 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 SZKCQ v Minister for Immigration & Citizenship (2008) 247 ALR 675 |
| Applicant: | SZMSI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2309 of 2008 |
| Judgment of: | Cameron FM |
| Hearing dates: | 15 June & 7 July 2009 |
| Date of Last Submission: | 7 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Parish Patience |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2309 of 2008
| SZMSI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where he claims he was a devout and proselytising Christian. He alleges that while in Bangladesh he received threats and suffered a physical attack from Muslim militants.
He claims to fear persecution in Bangladesh by reason of his religion or his religion-based activities.
After his arrival in Australia on 29 November 2007, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 11 March 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision (Relevant Documents (“RD”) pages 217 – 231).
In his application for a protection visa, the applicant made the following claims:
a)he worked as Chief Accountant for a “Christian authorised NGO”, the Participatory Development Initiatives of the Masses (“PDIM”);
b)he is a Christian and he always preached Christianity to those around him;
c)he became the target of fundamentalist Muslims as he influenced many Muslims and Christians and encouraged local poor people to become Christians. Because of this, in July 2006 fundamentalists from the Jagrata Muslim Bangladesh (“JMB”) entered the applicant’s house in Gazipur and threatened to kill him and his family if they did not leave the area;
d)although scared, the applicant stayed in Gazipur until October 2006 so that his sons could continue their study at a local school, however, Muslims continued harassing the applicant and his family;
e)as a result of the harassment, the applicant and his family moved to Dhaka and he was in hiding in Bangladesh from late 2006;
f)on 1 July 2007, the applicant almost lost his job because of the problems he had been experiencing and also because his employer created a new position of Financial Controller and put that person in charge of the team the applicant used to lead;
g)he thought his prospects of a finding a new job were poor and this impacted on his mental health, so he found solace in Christianity, preaching to people;
h)on 11 October 2007, a “bunch of fundamentalist Islamic people” attacked and assaulted him and threatened to kill him when he was returning to Dhaka from Gazipur, leaving him with five broken teeth and psychological harm;
i)he later learned that his attackers were the same fundamentalists who were responsible for the deaths of ten Christians during an attack on a church, as well as a series of bomb attacks in Bangladesh. He claims they are related to JMB or Al Qaeda Bangladesh;
j)after the October 2007 attack he received telephone death threats from unknown people;
k)there are still violent and dangerous fundamentalist people in Bangladesh and he is not safe anywhere. The police are corrupt and sometimes sympathetic to the fundamentalists and, in any event, there are not enough police to protect him from the threats he faces; and
l)his family are worried when they go out and fundamentalists follow them and threaten them over the telephone.
In his review application before the Tribunal the applicant provided a pre-hearing submission containing photocopies of Bengali language press articles from three Bengali newspapers, accompanied by English translations, which reported local unrest and a protest rally held after Friday prayers in Gazipur on 6 October 2006.
The applicant attended a Tribunal hearing held over two sessions on
15 May 2008and 23 May 2008, during which he made the following additional claims:
a)he promoted Christianity while working for PDIM by telling people about it, encouraging them to be honest and showing them the film “The Last Temptation of Christ”;
b)in addition to his financial responsibilities in his role as Chief Financial Officer he went on field visits, calling on PDIM credit groups in various parts of Bangladesh. He would encourage them to be honest and repay their loans, citing Jesus Christ as an example to follow;
c)the majority of PDIM were Muslim, however, there were some five or six Christians including his boss (“Mr B”), who knew of the applicant’s activities;
d)in July 2006, fifteen or sixteen people from the local Al-Haramain mosque came to his home, harassed him and warned him to leave the area because of his Christian practice, his proselytising and violin-playing. The applicant claimed he told a friend and colleague, some neighbours and other influential people about this incident, but did not approach the police as he had no faith in them;
e)he did not report the July 2006 incident to media, church or other groups as they had just made verbal threats, there was nothing to report and it was not so serious;
f)although there were no other incidents in Gazipur from July to October 2006, he did not move from there earlier as it took time to make plans to move;
g)he moved to a Christian-dominated area in Dhaka but continued to work in Gazipur. The PDIM installed guards and a security gate outside the office and he was accompanied to and from the bus stop due to concern about attacks from fundamentalists;
h)Mr B made changes to PDIM’s structure from mid-2007 and a former student of his was placed in a more senior position. Although no-one spoke directly to him about the reasons for the change, the applicant believed Mr B was becoming increasingly irritated at his evangelising and the problems it was causing PDIM;
i)as to the alleged incident on 11 October 2007, the applicant claimed that he had gone to the Gazipur office early in the morning and headed back to Dhaka mid-morning for a meeting with Palli Karma Sahayak Foundation (“PKSF”) and he was assaulted at the bus stop in Joydebpur. He thought his attackers were from the Al-Haramain mosque;
j)after the assault, he telephoned a relative and obtained some medical treatment at a local pharmacy and then went first to a private clinic in Dhaka, where he had his head and arm checked, and then to a dental clinic;
k)the applicant responded to the Tribunal’s concerns at his delay in leaving Bangladesh by claiming that this could be explained on the basis that:
i)PDIM asked him to stay to complete an audit for PKSF;
ii)he was then attacked on 11 October 2007 and took ten days to recover; and
iii)he officially resigned from PDIM and stayed on a further month for the official hand-over and to make administrative arrangements.
At some point in the Tribunal hearing, the applicant’s representative provided a submission which reiterated the applicant’s claims and included a list of reference materials, including reports and articles on the situation in Bangladesh. The relevant additional points from the submission include:
a)the applicant’s activities in PDIM included that he taught Christian religious subjects, discussed and instructed Christianity with approximately 3,000 Muslim families and actively urged them to convert;
b)following the July 2006 house invasion, the applicant relocated his family to Dhaka and they went into hiding, although he continued his official and social work with PDIM in Gazipur and other places; and
c)on his return to Bangladesh, the applicant’s work would require he spend much time outdoors, thereby being subject to JMB targeting.
At the second session of the Tribunal hearing, the applicant clarified the claims made referred to above at [10(a)], because the Tribunal noted they were inconsistent with his earlier evidence about the more subtle way in which he promoted Christianity. He said that these calculations were based on the number of people he met during his field trips, stressing he was an evangelical and his purpose was to win people over to Christianity.
The Tribunal wrote to the applicant on 27 May 2008, inviting him to comment on information it considered potentially adverse to his application for review, including his delayed departure from Bangladesh and the high level of document fraud and corruption in Bangladesh. It attached country information which it had discussed with the applicant at the hearing. On 13 June 2008, the Tribunal again wrote to the applicant informing him of the outcome of the inquiries it had made through the Australian High Commission in Bangladesh concerning his involvement with PDIM. The High Commission spoke to Mr Sharful Islam, the Assistant Administrator (Operations) from PKSF (which was PDIM’s major donor), who informed the High Commission that he was aware of the applicant’s resignation and thought it was due to PDIM’s internal management problems. Mr Islam said that he was unaware of any religious issues related to PDIM’s microcredit work and did not know of any problem between PDIM staff and the local population.
The applicant provided a further submission to the Tribunal on 26 June 2008 with documents seeking to establish his credibility. In this submission the applicant made the following additional claims:
a)after the 11 October 2007 attacks and the threats to him and his wife, the applicant concluded it was unsafe for them to be anywhere in Bangladesh and submitted his resignation letter to PDIM on 15 October 2007 to take effect one month later;
b)Christian pastors mentioned his Christian preaching, however, because of his official role in PDIM, referred to it as “social work”; and
c)he spoke to Mr Islam, who provided his information from an official perspective and, although he knows the applicant promotes Christianity and that he was attacked by Islamic militants for that reason, he declined to issue any official letter concerning his knowledge, this not being an unusual response from a Bangladeshi Muslim.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the Tribunal accepted that the applicant is a practising Christian, that he worked for PDIM up to the time of his departure to Bangladesh and that he was an active parishioner in various churches, it did not accept that he actively proselytised in Bangladesh through his work or otherwise, finding that these claims lacked credibility. It noted that:
i)although he described the PDIM as a “Christian authorised NGO” which is Muslim-dominated with few Christian staff members, the Tribunal found the PDIM to be a secular NGO with financial and other links with Western and Christian organisations;
ii)the Tribunal found the applicant’s description of his responsibilities as Chief Accounting Officer of PDIM unconvincing and did not accept that he was required to make regular field visits during which he could promote religion;
iii)the Tribunal rejected his claim to have promoted Christianity, finding his description of what this involved to be improvised and unconvincing. Further, his explanation as to how he could promote Christian teachings for a number of years without it becoming more widely known beyond his supervisor and his immediate colleagues did not displace its concerns; and
iv)the letters received from the applicant concerning the problems arising from his “official social role” made no mention of religion and the Tribunal was unpersuaded by his explanation that there were religious overtones;
b)the Tribunal found that the applicant’s delayed departure from Bangladesh, being almost two months after he obtained his visa, was inconsistent with the conduct of a person who fears persecution and his explanations for this delay did not resolve its concerns;
c)the Tribunal found that the applicant gave minimal evidence of having taken credible precautions in response to the alleged threats from Islamic militants, noting that:
i)the applicant said that he relocated from Gazipur to Dhaka in October 2006 because he feared that Muslim protests against the nearby Presbyterian Bible College might spill over into renewed threats against him and his family, not because of any direct threats made to him or his family;
ii)the applicant claimed that he continued working in Gazipur and commuted from Dhaka and that the PDIM posted a guard at their Gazipur office and had someone accompany him for part of his daily commute. The Tribunal found this evidence reactive and improvised; and
iii)he gave limited and disjointed evidence as to the extent to which his colleagues, fellow Christians or anyone else were aware of the risk to him and were able to offer support;
d)the Tribunal considered it significant that the applicant never sought State protection from any feared harm and found this was because he did not need it, noting that although he claimed the police would not have offered effective protection, he failed to give any convincing reasons why he would not at least approach the police even if he did not expect them to help, particularly during the alleged problems in Gazipur during 2006;
e)the Tribunal did not accept the applicant’s claim that he was attacked by Islamic fundamentalists on 11 October 2007, noting that:
i)his narrative of the events was problematic, giving no insight into what provoked an attack on that day. His account of the sequence of events was muddled and he failed to give a coherent account of the reaction of the PKSF auditors in Dhaka who must have been waiting for his arrival at their office;
ii)it found Mr Islam’s advice to the High Commission consistent with the applicant’s evidence at the hearing and reinforced the Tribunal’s concern that his religious problems would have been widely known if they resulted in an attack by terrorists which received widespread coverage. It did not accept the applicant’s claim that Mr Islam’s evidence was to be dismissed because of his adherence to an “official line” or because of any unwillingness, as a Muslim, to help the applicant;
iii)considering the background of widespread document fraud in Bangladesh and the applicant’s poor credibility generally, the Tribunal found that the newspaper articles he submitted as evidence of the attack on 11 October 2007 were of dubious credibility and it was particularly concerned that:
· the photograph appeared to be staged;
· the text of the newspaper article was strikingly similar to essential elements of the applicant’s application; and
· although his case received newspaper coverage it was not readily known to PDIM and PKSF employees, Christians and others;
iv)although the Tribunal had regard to the dental report dated 11 October 2007 and accepted that the applicant had had dental work that day, in light of other documentation and the applicant’s overall credibility, it placed no weight on these records as evidence that he received treatment following an attack;
f)in light of these matters, the Tribunal considered that the applicant was not a credible witness, noting that he presented untruthful claims about his Christian profile, activities and the alleged attack on him in October 2007. The Tribunal did not accept that he had been the target of fundamentalist Muslims;
g)the applicant claimed to have almost lost his job at PDIM during 2007 and the Tribunal accepted that PDIM’s reorganisation adversely affected him and that his position was overhauled. However, the Tribunal did not accept that his work performance declined following threats, that there were complaints about his preaching or that his redundancy was affected by any other religious factors;
h)the Tribunal noted that although micro-credit organisations in Bangladesh have attracted the adverse attention of Muslim extremists from time to time, there was no persuasive evidence that PDIM or PKSF have faced problems or that their employees have been at risk;
i)the Tribunal further noted that country information discussed with the applicant identified certain Christians who face a higher level of risk, particularly those who actively proselytise. However, the Tribunal rejected the proposition that the applicant was an evangelising Christian or that being a regular Christian parishioner in Bangladesh gives rise to a real chance of persecution.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Tribunal committed jurisdictional error of law in that it failed to comply with s.424 of the Migration Act.
(2)The Tribunal failed to comply with the requirements of s.424(1) of the Migration Act, read with s.422B(3) of that Act.
(3)The Tribunal failed to comply with s.424A(1) and (2) of the Migration Act, read with s.422B(3) of that Act.
Breach of s.424 of the Act
The first allegation made in the amended application was particularised as follows:
The invitation to one Sharful Islam to give information, directed to Mr Islam through an Australian overseas mission, was not given in the way prescribed by s.424(3) of the Migration Act.
Acknowledging that the Court is bound by the decision of the Full Court of the Federal Court in SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51, the applicant made only a formal submission that the Full Court’s decision in SZLPO’s case was wrong.
Breach of s.424 when read with s.422B
The Tribunal sought information in Bangladesh and enlisted the support of the Australian High Commission in Dhaka for this purpose. The terms of the inquiry which was made of the High Commission was set out in Annexure A to the affidavit of Elizabeth Warner Knight affirmed 3 February 2009. The request is also quoted in the bundle of relevant documents at RD 188 and 229 in the following terms:
Tribunal’s request: Please contact Palli Karma Sahayak Foundation (PKSF) (PDIM’s major donor) and ask if [the applicant] is known to the PKSF. Can the PKSF comment on the following: (i) [The applicant’s] resignation from PDIM in Nov 2007, (ii) Whether they are aware of PDIM staff having any problems in Gazipur? (iii) Whether they are aware of any religious issues in its microcredit work? The Member has authorised the release of the applicant’s identity to the PKSF for these enquiries.
The High Commission responded in terms which are reproduced in Annexure A to Ms Warner Knight’s affidavit and are also reproduced in the bundle of relevant documents at RD 188-189 and 229 in the following terms:
Post’s response: Post contacted the key person from Palli Karma Sahayak Foundation (PKSF) coordinating with PDIM, Assistant Administrator (Operations) Mr Sharful Islam.
(i) Mr Islam was aware of [the applicant’s] resignation from PDIM. However, he was not sure about the exact date of [the applicant’s] resignation but suggested that it should have been sometime around the end of 2007.
(ii) Mr Islam was aware of some internal crises and confrontations related to the micro-credit program within PDIM in the last few months, but those were not directly related to the local population. He commented that as per his knowledge, [the applicant] left PDIM because of its internal management problems and confirmed that he did not know of any problem between PDIM staff and the local population.
(iii) Mr Islam was unaware of any religious issues related to PDIM’s microcredit work.
The applicant submitted that the questions posed by the Tribunal were very general and did not specifically concern the applicant. It was observed that the Tribunal’s questions did not ask whether the PKSF knew of the applicant’s particular circumstances or the claims he was making about his experiences in Bangladesh. It was further observed that in the s.424A notice of 13 June 2008 which the Tribunal sent to the applicant, the Tribunal identified certain inferences which it considered available from Mr Islam’s response. In relation to the information supplied by Mr Islam, in its s.424A letter the Tribunal advised the applicant as follows:
This information is relevant to the review for the following reasons:
- It is generally consistent with your evidence at the second hearing session that PKSF would not have been aware of your religious activities (although, as noted at the hearing, the Tribunal has concerns about whether it is feasible that you could have engaged in such activities without it becoming more widely known).
- However, this information appears to be at odds with your evidence that at least PKSF monitoring staff would have known of the attack on you (as you were heading to a meeting with them on 7 October 2007), though not senior management as they were not concerned with day-to-day operations. Mr Islam’s advice strongly suggests that he does know you personally and that he is aware of the general reasons why you left Bangladesh. However, he appears to be not aware of any immediate physical attack on you, any problems in Gazipur or any factors apart from internal office maters that caused you to leave Bangladesh.
- This may lead the Tribunal to infer that you did not leave Bangladesh to flee religiously motivated violence or threats, but rather for reasons linked with the office reorganisation in July 2007 (you mentioned this in your protection visa application) or other reasons unrelated to your refugee claims. It may – together with other information (as set out in the Tribunal’s letter of 27 May 2008 and also discussed at the two hearing sessions) – lead the Tribunal to find that some or all of your refugee claims are not truthful, and that you are not entitled to refugee protection in Australia.
The applicant observed that the Tribunal relied on those inferences when reaching its decision: RD 242-243. Reference might also be made to paras.108 and 110 of the Tribunal’s decision (RD 245-246).
The applicant submitted that if the Tribunal chose to exercise its power under s.424, fairness and justice required that any questions posed to a witness on its behalf be specific, rather than general and obscure as he submitted was the case on this occasion. He submitted that the Tribunal should not have drawn inferences from a Department of Foreign Affairs & Trade (“DFAT”) report which paraphrased the witness’s responses to those allegedly general and obscure questions. The applicant submitted that by acting as it did, the Tribunal breached its obligations under s.422B(3) which provides:
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
In obiter comments in SZLLY v Minister for Immigration & Citizenship [2009] FCA 185, Perram J observed that s.422B(3)
restores, as a procedural concept, fairness and justice. In that context, those words are not references to substantive notions of justice or fairness but can usefully be compared with the content of the same words in the expressions “natural justice” and “procedural fairness”. (at [24])
The applicant submitted that in failing to provide him with details of the questions which had been posed to Mr Islam, the Tribunal failed to act towards him in a way which was fair and just. He said that the Tribunal could have found out exactly what the High Commission had asked Mr Islam and that unless the Tribunal had this information, it was drawing its inferences on the basis of what it thought were the questions posed and the answers given.
The Minister correctly observed that, to the extent that the applicant alleged that the inferences drawn by the Tribunal were not open to it given the evidence before it, this was not the case which was pleaded. However, I did not understand the applicant’s submissions to have been to this effect. Rather, they were that the inferences drawn by the Tribunal were the product of a procedural step which contravened s.422B(3) and were illustrative of the unfairness arising from such a breach rather than themselves being capable of grounding a finding of jurisdictional error on the Tribunal’s part.
Importantly, in its s.424A letter the Tribunal put to the applicant its concerns regarding the information given by Mr Islam, together with the terms of the Tribunal’s request of DFAT and the High Commission’s summary or paraphrasing of Mr Islam’s answers to the queries put to him. By means of that s.424A letter, the applicant was given adequate notification of all the matters of which he now complains. As the Minister observed, although the applicant did not, in his response to the s.424A letter, raise complaints about the terms of the request for information, the terms of the High Commission’s report on its inquiries or the inferences which the Tribunal might draw from them, for the purposes of these proceedings that is not a relevant matter. The Tribunal’s obligation was to put the applicant on notice of matters which he could address, should he so wish.
The applicant additionally submitted that where s.422B(3) states that the Tribunal must act in a way that is fair and just “in applying this division”, the words “this division” mean the individual sections found in div.4 of pt.7 of the Act. That is to say, to the extent that the Tribunal exercises a power or discharges an obligation arising out of one of the sections found in div.4 of pt.7, each such act or omission must be individually determined to be fair and just. In essence, the applicant’s argument is that s.422B(3) is capable of affecting the manner in which the Tribunal obtains information pursuant to its powers under s.424.
Division 4 of pt.7 of the Act is concerned with providing an applicant with a review which is procedurally fair. As s.422B(1) states, div.4 of pt.7 is, to the extent of its provisions, an exhaustive statement of the natural justice hearing rule’s requirements. Section 422B(3) is concerned with ensuring that the natural justice rule is applied in a way which is fair and just in the sense discussed by Perram J in SZLLY’s case.
As Brennan J said in Kioa v West (1985) 159 CLR 550 in relation to statutory provisions whose exercise requires the observance of natural justice:
But when the exercise of a statutory power is so conditioned, regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition. It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed. (at 611)
His Honour stated that one question to be asked in relation to such circumstances is what the principles of natural justice require in the particular circumstances, noting that they have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power (at 612). His Honour quoted with approval the statement of Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504:
What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business.
The obligation to provide an applicant with a hearing which is procedurally fair affects the Tribunal’s dealings with that applicant, not its dealings with third parties. If the Tribunal advises an applicant, as here, of the steps which it has taken and the outcomes of those steps and then provides the applicant with an opportunity to comment or, indeed, obtain further evidence should he or she be so inclined, then it has not denied the applicant procedural fairness. For instance, in this case the applicant could have made his own enquiries of Mr Islam should he have felt that the information elicited by the Tribunal was inadequate or misleading. That he did not do so was a matter for the applicant but he had the opportunity to take such steps because the Tribunal made full disclosure to him of the inquiry it had initiated, the results of that inquiry and the conclusions it was minded to draw as a consequence of the information which came into its possession.
As the Full Court of the Federal Court said in Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [60]:
… there is no unfairness where a person affected knows what he is required to prove to the decision maker and is given the opportunity to do so.
The circumstances of this case do not justify a conclusion that the applicant has been denied procedural fairness in connection with the information obtained from Mr Islam pursuant to s.424. The applicant was given the information he was entitled to have and he was given an opportunity to address it. By providing the applicant with such an opportunity, the Tribunal discharged its relevant obligations under s.422B(3).
Breach of s.424A when read with s.422B
Section 424A(1) provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The applicant submitted that the requirement that the Tribunal provide “clear particulars” of information that would be the part of the reason for it affirming the decision under review could not be discharged unless the Tribunal gave the applicant the questions to which the informant had responded. He submitted that it was not possible to offer a meaningful response to information without knowing its context. In that regard, reference was made to what Stone and Tracey JJ said in SZKCQ v Minister for Immigration & Citizenship (2008) 247 ALR 675:
For the appellant to understand why the information provided in response to the High Commission’s enquiry might be relevant to the review he needed to understand the context in which that information was given; in other words he needed to be informed of the questions to which the two gentlemen were responding. There can be no doubt that it was “reasonably practicable” for the tribunal to give him the questions. Without them the appellant’s capacity to comment on the responses was severely compromised; he was not afforded the procedural fairness for which the Act provides. As McHugh J remarked in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [77], it would be an “anomalous result” if, despite the tribunal’s failure to take the steps that the Migration Act laid down so that an applicant would be accorded procedural fairness, its decision were found to be valid. (at 677 [4])
The information in question has been set out above at [17] and [18]. Contrary to the applicant’s submissions, I am not of the view that the Tribunal failed to provide clear particulars of that information. The fact that the questions and answers may not have been reproduced verbatim does not mean that the manner in which they were reproduced is not clear. The submission appears to suggest that more meaning, and thus more information, would have been available to the applicant if the questions and answers had not been supplied in summary form. However, the information which was provided to the applicant was the information which was before the Tribunal. There is no basis to conclude that the Tribunal had more information, or information more clearly expressed, than that which was supplied to the applicant. In circumstances where that information itself, on an objective assessment, cannot be said to be other than clearly expressed, and where the applicant was given the very material which the Tribunal itself had, I find that the allegation made in the third ground pleaded in the amended application is not made out.
Additionally, SZKCQ’s case is distinguishable from this application because it was concerned with what two informants contacted on behalf of the Tribunal did not say rather than what they did say and in circumstances where the Tribunal failed to advise the applicant of the terms of the questions put to the informants. Moreover, that case was concerned with an applicant’s understanding of the relevance of the information which is notified to him, as required by s.424A(1)(b). SZKCQ’s case is not authority for the proposition that clear particularisation of relevant information, as required by s.424A(1)(a), will only be achieved if the actual terms of the questions posed to an informant are supplied to the applicant.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 August 2009
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