SZNFW v Minister for Immigration
[2009] FMCA 950
•1 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 950 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.422B(3) does not create procedural fairness obligations additional to those found elsewhere in div.4 of pt.7 of the Migration Act 1958 – s.422B(3) affects how the Tribunal’s existing procedural fairness obligations are discharged – information not in the Tribunal’s possession is not “information” for the purposes of s.424A(1) of the Migration Act 1958. |
| Migration Act 1958, ss.91R, 422B, 424, 424A, 424B, 441A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 Minister for Immigration & Citizenship v SZLFX [2009] HCA 31 Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 SZBYB v Minister for Immigration & Citizenship [2008] FCA 150 |
| Applicant: | SZNFW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 318 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 May 2009 |
| Date of Last Submission: | 17 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L.J Karp |
| Counsel for the First Respondent: | Mr J. Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 318 of 2009
| SZNFW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Ghana. He entered Australia on 15 February 2007 on a Sponsored Business (Short Stay) (Subclass 459) visa which was issued to enable his attendance at the Melbourne FINA Swimming Championships as a teacher/swimmer.
After his arrival in Australia, the applicant lodged an application for a protection visa claiming that he feared persecution in Ghana because of his homosexuality. This application was refused by the Minister’s delegate on 14 June 2007. The applicant 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 – 27 of the Tribunal’s decision (Court Book (“CB”) pages 387 – 410). Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in a statement attached to his protection visa application:
a)he had his first sexual relationship in 1997 while employed as an apprentice in a motorcycle workshop in Salaga, East Gonja. His partner was a senior apprentice at the workshop and they would meet there in the early hours for their assignations;
b)on 10 October 2006 a passing driver with a mechanical fault visited the shop and found the couple “romancing”. He raised the alarm and alerted neighbours. People rushed to the scene with sticks and weapons. The applicant managed to escape but his lover was apprehended and beaten to death. This was the only sexual relationship the applicant had ever had;
c)he came from a religious Muslim family and was a part-time Islamic teacher. As such, he had “no option to return to work but to terminate my employment because I am gay”. He has been denied the means of earning a livelihood and faces discrimination because of his sexual preference;
d)after his discovery the entire Muslim community, including his extended family, raided and ransacked his parents’ home with the intention of finding and killing him. As a result of this assault, his parents were beaten unconscious and later died in hospital from their injuries. The applicant’s younger brother fled and has not been seen since;
e)his extended family have organised people to find and kill him and he has been bashed, harassed, threatened and tortured by the community;
f)he attempted to hide in other villages but, because of tribal linage, people were easily able to identify him;
g)in the three months prior to his departure from Ghana he lived in isolation and moved from place to place in order to escape death. He did not return to his home in East Gonja;
h)he cannot get protection from the police as homosexuality is condemned by the government and the community on cultural and religious grounds; and
i)a friend of his late lover who is a senior official in the Ghana Swimming and Life-Savers Association (“GSLSA”) organised his visa and ticket to Australia.
Proceedings before the Tribunal
Pre-hearing submissions
By letter dated 10 August 2007, in response to the Tribunal’s s.424A notice of 20 July 2007, the applicant:
(a)claimed that homosexual sex was illegal under the Ghanaian Criminal Code and referred to various reports of homosexuals being arrested and charged under this law;
(b)acknowledged that there was a homosexual community in Accra, Ghana’s capital, but referred to a website where it was reported that gay men “mingle[d] discreetly, aware that if they are discovered they could face discrimination, blackmail, imprisonment and torture”;
(c)in any event, claimed that he could not relocate to Accra because the people in Salaga who killed his partner travelled to Accra to sell and trade such that there was a chance he could be discovered; and
(d)provided a medical report dated 30 July 2007 which stated that he suffered scarring and pain in his legs “consistent with injuries sustained last year” and also symptoms of post-traumatic stress disorder.
In supplementary submissions dated 4 October 2007 the applicant claimed that he escaped to a neighbouring village on the day of the attack but the villagers there noticed his bleeding leg and wanted to hand him over to the authorities. An old man took him in and, on the applicant’s behalf, telephoned the GSLSA official, Ibrahim. Ibrahim picked him up and drove him to Accra where he lived for the next four or five months. He claimed that Ibrahim, who was also a homosexual, then returned to Salaga to find out what had happened to the applicant’s partner. Upon his return to Accra, he informed the applicant of his partner’s death and of the circumstances surrounding the attack on his parents. The applicant claimed that he learned of his parents’ deaths after his arrival in Australia. The applicant also provided a letter from Mr Chris Wilson, a training and volunteer coordinator for the Gay and Lesbian Counselling Service (“GLCS”). The letter stated that the applicant had met with Mr Wilson briefly on 23 August 2007 and had discussed his circumstances in Ghana and his wish to meet socially other members of the gay community in Sydney. The letter also stated that the applicant had attended a “Men’s Coming Out Group” meeting on 26 September and 3 October 2007.
On 5 October 2007 the applicant’s representative submitted a psychological assessment from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) which reported that:
The symptoms [the applicant] displays and reports are suggestive of a complex post-traumatic stress syndrome with signs of clinical depression (Dysthymia). This presentation appears related to his experiences of violence in Ghana.
The Tribunal also had before it two similar psychological assessments from STARTTS dated 3 July 2007.
Tribunal hearing
The applicant appeared before the Tribunal on 8 October 2007 but was not required to give evidence on that occasion as an interpreter was not available to assist. However, the Tribunal took evidence from Mr Wilson of the GLCS.
At the resumed hearing on 8 November 2007 the Tribunal informed the applicant that it had before it prejudicial material regarding his claimed relationship with the person “Ibrahim”. The Tribunal advised the applicant that the department had received a letter dated 18 April 2007 from a person who signed himself “James” who claimed that:
a)an “Ibrahim Issa” was colluding with someone in the Ghanaian Ministry to obtain visas for people to attend the FINA Championships although they “know nothing about swimming”;
b)Issa was charging $3,000 for the visas and these takings were shared with the person in the Ghanaian Ministry; and
c)Issa brought four people into Australia in March 2007 and none had returned to Ghana.
The Tribunal also had before it a departmental memorandum dated 14 June 2007 stating that the applicant was residing at an address in Punchbowl, New South Wales which was the same address provided by four other Ghanaian protection visa applicants, all of whom claimed to be homosexuals and all of whom arrived in Australia in connection with the FINA Championships.
In connection with this evidence, the applicant claimed that:
a)he did not know Ibrahim’s surname;
b)Ibrahim arranged his papers to come to Australia and gave him money but there was no arrangement for the applicant to repay the costs involved. He did not pay $3,000 to join the Ghanaian swimming team;
c)he had met at least one person who had come for the FINA games but could not recall his name;
d)he arrived on a different flight and had no connection with members of the Ghanaian swimming team and had not participated in the events; and
e)he had no idea about other Ghanaians making similar claims.
Post-hearing enquiries
By facsimile dated 20 November 2007, in response to the Tribunal’s invitation to provide additional information, the applicant claimed that his only contact in Ghana was Ibrahim. He claimed that after the hearing he spoke to Ibrahim by phone and asked him to contact the police in Ghana but Ibrahim said that it was too dangerous for him to travel to Salaga. He claimed that, as an alternative, Ibrahim gave him a phone number of a relative but his attempts to make contact had been unsuccessful.
By facsimile dated 30 November 2007 the applicant’s solicitor advised that the applicant had managed to contact Ibrahim’s relative. The facsimile stated that Ibrahim’s relative went to the police station and requested that they release documents relating to the death of the applicant’s parents but the police, who confirmed that such information did exist, would not release the information unless this was requested “by someone older” or the applicant’s lawyer (CB 202).
On 4 January 2008 the Department of Foreign Affairs and Trade (“DFAT”) provided the following advice in response to a request for information made to it by the Tribunal:
The Australian Embassy [sic] in Accra contacted the Salaga District Police and spoke to various officers including the Assistant Superintendent of Police (Agbodjan). ... the Embassy was informed that Salaga Police does not have any information or records of any murders of [the applicant’s partner], [the applicant’s father] or [the applicant’s mother], in or around October 2006. The police also had no record of beatings or assaults on those persons.
On 17 January 2008 the Tribunal sent the applicant a s.424A notice containing the above information. The applicant’s solicitor replied by letter on 22 January 2008 and submitted that, in order to respond properly
… the Tribunal should provide us with copies of all the records of the contact made by the Australian Embassy in Accra with the Salaga District Police, including copies of the Embassy official’s notes of the conversation(s) she or he had with the Salaga District Police and any other written records of the contact.
The solicitor claimed that without this information it was not possible to assess the reliability of the information provided to the “Embassy”.
In a statutory declaration declared on 23 January 2008 the applicant also informed the Tribunal that, contrary to his earlier evidence, he had lived for a short time with two other people from Ghana at the Punchbowl address. These people “had some connection with the Ghana Swimming team” but in what capacity he did not know. The applicant claimed that did not know their surnames and had not seen them since leaving that address.
By letter dated 12 February 2008 the Tribunal informed the applicant’s solicitor that it could not meet his request for additional information concerning DFAT’s advice because it did not have access to that information (CB 216).
The applicant submitted a statutory declaration declared 16 May 2008 attaching four documents purporting to be his parents’ death and burial certificates. Additional copies were faxed to the Tribunal on 27 May 2008 along with a statement by one Draman Tawfik, purportedly the Registrar of Births and Deaths of Salaga Hospital. According to Mr Tawfik’s statement, the applicant’s parents died in Salaga Hospital in 2006 from unlawful injuries caused “during a mob aggrieved factions … in their residence”.
The applicant submitted another statutory declaration declared on 30 June 2008, this time attaching a burial permit for his late partner. The applicant claimed that this document was also provided by Mr Tawfik.
With the exception of the burial permit for the applicant’s partner which had not been received at that point, the Tribunal forwarded this material through DFAT to the Australian High Commission in Accra along with a request for additional information. In that request, the Tribunal posed the following questions:
The RRT would appreciate it if post would provide answers to the following:
A. Is it possible to confirm that [applicant’s father] and [applicant’s mother] are the applicant’s … parents?
B. Are the following documents genuine:
B.1 The statutory declaration, dated 21 May 2008, by Draman Tawfik, Registrar of Births and Deaths of Salaga Hospital of East Gonja District Assembly of Northern Region Ghana (Attachment 1)?
B.1.1 If the statutory declaration is considered to be genuine could Draman Tawfik be asked:
B.1.1.1 What were the sources of the information contained therein?
B.1.1.2 What checks did he undertake to verify that information?
B.1.1.3 Why did he not sign the statutory declaration?
B.1.1.4 Can he explain why the death certificates are consecutively numbered even though the deaths were some six weeks apart?
B.2 The Death Certificate and Burial Permit for … (applicant’s father), both dated 12 October 2006 (Attachment 2)?
B.3 The Death Certificate and Burial Permit for … (applicant’s mother), both dated 28 November 2006 (Attachment 2)?
B.4 Could the post provide the sources, where possible, for any information on the answers to these questions?
C. Could the post obtain from the relevant authorities the documentation referred to in the Ghana Government’s Births and Deaths Registry and the WHO website as follows:
C.1 Medical Certificate of Cause of Death for [applicant’s father] and [applicant’s mother]?
C.2 Coroner’s Certificate for [applicant’s father] and [applicant’s mother]?
C.3 Death registration Report Form “B” for [applicant’s father] and [applicant’s mother]?
D. In view of the additional information provided by the applicant can the post confirm its initial advice in: Department of Foreign Affairs and Trade 2008, DFAT Report No.751 – RRT Information Request: GHA32659, 4 January.
E. Is the post able to provide any other information it considers relevant in this case? (CB 327-328)
The following information was provided by DFAT on 5 August 2008 in response to the Tribunal’s second request:
A. It is not possible to confirm, with any degree of certainty, whether [the applicant’s father] and [the applicant’s mother] are the applicant’s parents. Such records in Ghana are not available in a searchable format, and in any event are not reliable. It would be relatively easy to obtain a birth certificate that contained false information.
B. The death certificates and burial permits [relating to the applicant’s parents] do not appear to be genuine. We have been advised by the Births and Deaths Registry that Draman Tawfik is not an employee in the East Gonja District, but rather was a volunteer in that office. Apparently the death certificates were produced by altering two existing certificates to show the names [applicant’s father] and [applicant’s mother]. Regarding the statutory declaration (B.1) by Draman Tawfik, this may be genuine in the sense that it may have been made by Tawfik, however based on the information available to post it would appear that at least paragraph 3 of the declaration is false. This information was provided to post by Mr Kingsley Asare Addo, Senior Assistant Registrar, Births and Deaths Registry Head Office in Accra. We understand that Mr Addo investigated the matter in consultation with the senior registrar at the Tamale Regional Office, to which the district office in Salaga reports.
C. According to Mr Addo, Births and Deaths Registry are still investigating whether any of the supporting documents described in C exist. However given that the death certificates appear to have been forged, as described in B, it seems to post that it is unlikely that any of those documents do exist.
D. Given the above, post does not have anything to add to its advice in AC5106655L.
E. Post has not yet been able to contact Awudu Motors in Salaga, so cannot confirm whether or not [the applicant] and his partner … were employed there.
F. Post has no further information. (CB 323)
Pursuant to s.424A the Tribunal notified this information to the applicant on 19 August 2008. The applicant’s solicitor responded on 2 September 2008.
On 10 October 2008 DFAT wrote to the Tribunal for a third time providing further information “in follow-up to report number 858 of
5 August 2008”. This document stated:
Regarding the existence of various supporting documents such as coroners report or medical report, DFAT again contacted Mr Kingsley Asare Addo of the Births and Deaths Registry …
Regarding attempts to contact Awudu Motors, DFAT did not have any contact details for Awudu Motors, so instead called the Salaga district police headquarters, with whom DFAT had previously discussed this matter. The Assistant Superintendant of Police offered to send some of his officers around Salaga to try to locate Awudu Motors …
Pursuant to s.424A the Tribunal notified this information to the applicant who provided comments by way of his solicitor’s letter dated 21 October 2008.
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)the Tribunal was not satisfied that the applicant was a credible witness for the following reasons:
i)he was given every opportunity throughout the lengthy review process to provide convincing evidence in support of his claims but did not do so;
ii)he changed his story on a number of occasions and failed to provide detail when responding to some questions;
iii)impliedly, the applicant’s evidence was protective of his friend Ibrahim whom the Tribunal was satisfied was the same person as Ibrahim Issa(h), given that the latter was a recognised official of the Ghanaian swimming association and was well placed to provide the applicant with the substantial support which he claimed he received;
iv)Mr Ibrahim played a pivotal part in the applicant’s claims and his later arrival in Australia yet the applicant stated that he did not know his surname;
v)despite his key role, Mr Ibrahim provided no corroborating evidence to the Tribunal in support of the applicant’s claims. In this respect the Tribunal noted that, in his later evidence, the applicant stated that Mr Ibrahim had refused to go to Salaga to seek verification from the police, claiming that it was too dangerous for him to go there. However, in his earlier evidence, the applicant had stated that Mr Ibrahim had made a number of visits to Salaga after the alleged incidents occurred and had reported back to him;
vi)it was not credible that Mr Ibrahim would, out of the goodness of his heart, have gone to such lengths to provide the applicant with finance and assistance. The Tribunal did not accept that the applicant had paid nothing for these services;
vii)the applicant claimed throughout the hearing that he was unable to verify his claims because, apart from Mr Ibrahim, he did not know anyone in Ghana. He later stated that he could not make contact with Mr Ibrahim because of a dispute between them but then said, when the Tribunal made it clear that it would expect the applicant to verify at least some of his claims, that he had restored relations with Mr Ibrahim but did not obtain from him verification of his claims; and
viii)subsequently, the applicant claimed that he was able to make contact with various witnesses although their evidence was, at best, highly questionable when tested against the evidence provided by the Australian High Commission in Accra;
b)in light of its concerns about the reliability of his evidence, the Tribunal did not accept the applicant’s claims relating to his telephone conversation with Mr Awudu. The Tribunal decided not to call the telephone number provided as it would not be able to verify the identity of the person being interviewed;
c)in light of the evidence provided by the High Commission, the Tribunal was not satisfied that the documents provided by the applicant, particularly those relating to the claimed death of his friend and his parents following a mob attack, were genuine. The Tribunal preferred and gave particular weight to the evidence of the Salaga police, noting that:
i)given the applicant’s claim that Salaga was a smallish town, it was not credible that an alleged murder, an attempted murder, two manslaughter related incidents and a disappearance, possibly involving five people, would not have come to the notice of the local police;
ii)indeed, had the events occurred as claimed, the police would have kept records of their investigations;
iii)the Tribunal could see no reason why, if records existed, the Salaga police would deny the events as claimed or would deliberately lie to the High Commission;
iv)it did not find credible the applicant’s claims that the Ghanaian police had indicated to him that they would only speak to an “elder” or the applicant’s solicitor; and
v)it gave little weight to the press article submitted by the applicant concerning the unreliability of Ghanaian police records;
d)given the paucity of supporting evidence and its concerns about the applicant’s credibility as a witness, the Tribunal was not satisfied that the applicant was a homosexual at the time of application. The Tribunal noted that the applicant claimed to have had a “once only” homosexual relationship prior to leaving Ghana which the Tribunal did not accept as credible in view of the conflicting evidence. Further, the applicant had stated that he had had no homosexual relationships since his arrival in Australia;
e)pursuant to s.91R(3), the Tribunal disregarded the applicant’s attendance at two “Coming Out” group meetings in Sydney conducted by the GLCS, noting that he had arrived in Sydney in February 2007 but did not make contact with that group until August of that year. The Tribunal also noted that the second meeting occurred only a few days prior to the Tribunal’s first hearing;
f)having found that the applicant was not homosexual, much less a “known homosexual” in Ghana, the Tribunal did not accept that he would be prevented from finding suitable employment should he return;
g)the Tribunal did not give the two psychological reports any significant weight because:
i)the applicant’s injuries could have been caused by any one of a number of causes unrelated to the Convention, including a motor bike accident which would not have been unexpected given the applicant’s occupation;
ii)the medical reports did not independently conclude that the applicant suffered the claimed violence, only that his injuries were consistent with such claims; and
iii)the reports were produced primarily for the purpose of obtaining financial assistance for the applicant on the basis of his claims that he was a victim of persecution;
h)consequently, and noting that none of the evidence from official Ghanaian sources supported the applicant’s claims, the Tribunal was not satisfied that his lover was killed by a mob, that his parents were dead or, if they were, that their deaths were caused by mob violence connected with the applicant’s homosexual activity, that his younger brother was missing or that his relatives were out to kill him; and
i)the Tribunal was satisfied that the applicant’s claims were manufactured to give substance to his false claims that he was a homosexual refugee.
Proceedings in this Court
The applicant pleaded the following grounds in his amended application:
(1)The decision of the second respondent dated 15 January 2009 (the decision) was vitiated by breaches of section 424 of the Migration Act.
(2)The decision was vitiated by breaches of section 424 of the Migration Act, read with s.422B(3) of that Act.
(3)The second respondent committed jurisdictional error by failing to provide the applicant with particulars of information required by s.424A(1) Migration Act in a manner which was “fair and just” as required by s.422B of that Act.
Breach of s.424
At the relevant time, s.424 of the Act provided:
424 Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 441A provides various methods by which the Tribunal may give a document to a person. The section makes no provision for oral communications.
Additionally, s.424B relevantly provides:
424B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 424 to give information; …
(b) …
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. …
Originally, the applicant’s case was that the information which the High Commission obtained from Mr Addo and the Assistant Superintendent of Police at Salaga as a result of its follow-up enquiries was information additional to information which those two officials had already supplied and thus it fell within the ambit of s.424(2). He originally submitted that s.424(3) required that such requests for additional information be made in writing and in accordance with the procedures set out in s.441A but that this procedure had not been followed.
At this point it should be noted that the evidence demonstrates clearly enough that those further enquiries made by DFAT of Mr Addo and the Assistant Superintendent of Police at Salaga were made orally and not in writing.
After judgment was reserved in this matter, the High Court delivered its judgment in Minister for Immigration & Citizenship v SZKTI [2009] HCA 30. There it was held that a request for additional information will not be governed by s.424(2) unless the Tribunal has chosen to observe the formalities set out or referred to in ss.424(3) and 424B. SZKTI makes it clear that when seeking information the Tribunal is not obliged to take the s.424(2) route but can, instead, use the power provided by s.424(1) and get information by methods other than requests in writing. That is what occurred in this case.
After the High Court’s decision in SZKTI was published, the parties were invited to file further written submissions addressing the application of that decision and also the application of the related case, Minister for Immigration & Citizenship v SZLFX [2009] HCA 31, to this matter. In his additional written submissions dated 10 September 2009 the applicant abandoned the first ground pleaded in the amended application.
Breach of s.424 as affected by s.422B(3)
The allegation that the Tribunal’s decision was vitiated by breaches of s.424 read with s.422B was particularised as follows:
(a) Invitations directed to
(iii) The police in Sagala [sic], Ghana and
(iv)Various officials in Ghana attached to the Ghanaian Births and Deaths Registry
to provide additional information were not made in writing.
(b)Not being in writing, the procedures adopted to obtain such information were not, in the circumstances of this case, fair and just as required by s.422B Migration Act.
Sub-section s.422B(3) provides:
In applying this Division, the Tribunal must act in a way that is fair and just.
Division 4 of pt.7 of the Act is concerned to provide an applicant with a review which is procedurally fair and s.422B(3) is concerned with ensuring that the procedural requirements of that division are applied fairly and justly: Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83. The applicant submitted that because information obtained from Ghanaian officials was likely to be given great weight and because s.424(1) of the Act required that such information be considered by the Tribunal, the interests of justice made it necessary for the Tribunal to know exactly what was asked and who was asked and, impliedly, that this meant that such communications should be in writing. It was submitted that it was also a matter of fairness, both to the applicant and to the officials, that the Tribunal’s requests be in writing. This, it was submitted, was so that the Tribunal’s inquiries did not catch the officials by surprise. It was submitted that a telephone call does not give its recipient a measured opportunity to collect information and give a reply.
The applicant submitted that each one of the High Commission’s enquiries attracted the operation of s.422B(3).
The Minister submitted that, were it to be accepted, the applicant’s allegation would broaden the scope of operation of div.4 of pt.7 rather than affect the manner in which the procedures it prescribes are implemented. He implied that, on the applicant’s interpretation, s.422B(3) would impose procedural requirements additional to those found in div.4 of pt.7.
Section 422B(3) does not exist in a vacuum and can operate only by reference to one or other of the provisions of div.4 of pt.7. Section 422B(3) may affect, in a procedural sense, how another provision in div.4 of pt.7 of the Act may or ought to be applied in a given situation and how such procedural fairness obligations are discharged but it cannot affect the Tribunal’s principal obligations under such a provision or the proper construction or operation of such a provision. Section 422B(3) only operates in connection with existing procedural fairness obligations and does not create new ones or expand the Tribunal’s duties under the provisions of div.4 of pt.7 of the Act.
The High Court observed in SZKTI that s.424(1) does not require that information be sought in writing or that information which is obtained be recorded in writing. The lack of such a requirements is
… consonant with the inquisitorial nature of the RRT and the statutory obligation upon it to adopt procedures which are not only “fair [and] just” but are also “economical, informal and quick.” (at [37])
As s.424(1) did not require that the Tribunal’s requests or the informants’ responses be recorded in writing, s.422B(3) was not offended by the fact that the exchanges between the High Commission and Mr Addo and the Assistant Superintendent of Police at Salaga were oral.
Further, and relevantly for this case, 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 if it then provides the applicant with an opportunity to comment or obtain further evidence should he or she be so inclined, then it has relevantly afforded the applicant procedural fairness. In this connection, I agree with and adopt the following passage from the Minister’s first written submissions:
In essence, the applicant’s case is that the obligation is to obtain further information in order to assist the applicant. The requirements of procedural fairness do not go that far. Procedural fairness requires relevantly that a person whose interests may be affected by a decision has the opportunity of being heard. This would ordinarily require the party affected to be given the opportunity to ascertain the relevant issues and to be informed of the nature and content of adverse material: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32].
As the Full Court of the Federal Court said in SZMOK:
… 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. (at [60])
In this case, the DFAT reports were notified to the applicant by the Tribunal’s various s.424A letters and the applicant was given opportunities to respond.
For these reasons, I find that the Tribunal’s enquiries of Mr Addo and the Assistant Superintendent of Police at Salaga were not effected in a way which offended s.422B(3).
Breach of s.424A as affected by s.422B(3)
This allegation was particularised as follows:
The Tribunal did not obtain, and made no attempt to obtain readily obtainable particulars of information specifically requested by the applicant which went directly to the reliability of information which would have been the reason or part of the reason for affirming the decision under review.
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 although it has previously been held that s.424A imposes no obligation on the Tribunal to endeavour to obtain information from DFAT in order to test the accuracy of information supplied by DFAT at an earlier stage of the Tribunal’s inquiry (SZBYB v Minister for Immigration & Citizenship [2008] FCA 150 at [15]), the enactment of s.422B(3) has fundamentally altered that position. In particular, the applicant submitted that the reliability of information is directly affected by its source and the means by which it is obtained with the consequence that those two background facts constitute “particulars” of information for the purposes of s.424A(1).
The applicant pointed to his solicitor’s letter to the Tribunal of 22 January 2008 in which the Tribunal was asked to provide background details concerning the information contained in the first DFAT report. The Tribunal had set this information out in its s.424A notice of 17 January 2008.
The questions posed by the applicant’s solicitors on 22 January 2008 were:
1.What telephone number was used by the Embassy to contact the police?
2.How many police officers were spoken to and what were their positions (the report states that “various officers” were spoken to)?
3.How many times was the Salaga District Police contacted? Was it once or was the office contacted on more than one occasion?
4.Is the Embassy official aware of what searches of what records were made by the police in response to the telephone call from the Australian Embassy? If so, please provide the details of what records were searched.
5. Which police officer provided the information that Mr [applicant] is being asked to respond to?
6.Any other information held by the Embassy in Accra that can assist to weigh up the reliability of the information being put to Mr [applicant].
The applicant’s argument is that the Tribunal’s failure to provide him with the information his solicitor requested amounted to a failure to provide particulars as required by s.424A(1) and thereby breached the requirements of s.422B(3). He submitted that the questions his solicitor put to the Tribunal went directly to the reliability of the information provided in the Tribunal’s s.424A notice. The applicant submitted that because the Tribunal had not responded to the questions posed, his solicitor had only been able to make general submissions on the reliability of the information obtained by the High Commission in Accra. He submitted that he could only rely on general information to address the specific information which the Tribunal had put to him in its s.424A notice.
As already noted above in connection with the possible interaction of s.422B(3) with s.424, if the principal provision relevantly imposes no procedural obligation on the Tribunal then s.422B(3) has no work to do. Consequently, the enactment of s.422B(3) has not affected the relevance or authority of the statement in SZBYB’s case that s.424A imposes no obligation on the Tribunal to endeavour to obtain information from DFAT in order to test the accuracy of information DFAT supplied at an earlier stage of the Tribunal’s inquiry.
Further, a review of the evidence contained in the Court Book does not suggest that the Tribunal ever asked DFAT to provide the information which the applicant’s solicitor sought and I find that it did not seek or obtain that information. Relevantly, the information which the Tribunal had at the time the applicant’s solicitors wrote their letter of 22 January 2008 was no more and no less than that which was contained in the first DFAT report and which the Tribunal quoted in its s.424A notice of 17 January 2008. Consequently, even though the background information sought by the applicant’s solicitor was in the possession of DFAT, it was not information which was seen by the Tribunal or which could have been considered by it to be the reason or part of the reason for affirming the decision under review.
In this case, the applicant’s argument depends on the particulars of s.424A(1)(a) information being not only the information in the Tribunal’s possession and which the Tribunal considers would be the reason or part of the reason for affirming the decision under review, but also information which is not in its possession and to which it cannot have given consideration. Information of the latter sort is not “information” for the purposes of s.424A(1). As the High Court observed in SZLFX at [24] and [25], s.424A depends on the Tribunal’s “consideration”, or opinion of particular information, being information which
… “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
Unless the Tribunal is in actual, not constructive, possession of particular information, that information cannot meet the criteria of s.424A(1). Further, if the Tribunal has no s.424A(1) obligations in relation to certain information, then no duties under s.422B(3) arise in respect of such information either.
Details such as those sought by the applicant’s solicitor in his letter to the Tribunal of 22 January 2008, namely copies of DFAT’s records of its contacts with the Salaga Police, may have given context and additional meaning to the information which was in the Tribunal’s possession and which it had notified to the applicant. However, those background details were not in the Tribunal’s possession and s.424A(1) did not require the Tribunal to obtain them. As those details did not fall within the operation of s.424A(1) and were thus not required to be notified to the applicant, no breach of s.422B(3) occurred because they were not supplied to him.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 1 October 2009
0
7
1