SZNJQ v Minister for Immigration

Case •

[2009] FMCA 1072

•

5 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJQ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1072
MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.424 or s.424A of the Migration Act 1958 (Cth).
Migration Act 1958 (Cth), ss.56, 91R, 415, 424, 424A, 424B, 424C, 425
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285; [2007] FCAFC 162
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 83 ALJR 1135; [2009] HCA 40
Minister for Immigration and Citizenship v SZKTI (2009) 83 ALJR 1017; [2009] HCA 30
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
NBKS v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 156 FCR 205; [2006] FCAFC 174
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZECF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 89 ALD 242; [2005] FCA 1200
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110
SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236; [2008] FCAFC 119
SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721
SZNAV and Others v Minister for Immigration and Citizenship and Another (2009) 229 FLR 461; [2009] FMCA 693
Tickner and Others v Chapman and Others (1995) 57 FCR 451
Applicant: SZNJQ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 727 of 2009
Judgment of: Barnes FM
Hearing dates: 30 July 2009, 17 September 2009
Delivered at: Sydney
Delivered on: 5 November 2009

REPRESENTATION

Applicant: In person
Counsel for the Respondents: Ms Clegg
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 727 of 2009

SZNJQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal dated 27 February 2009 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. 

  2. The applicant, a citizen of Pakistan, arrived in Australia in July 2008 and applied for a protection visa.  He attended an interview with a Departmental delegate.  On 19 November 2008 the delegate refused the application for a protection visa.  The applicant sought review by the Tribunal.  He attended a Tribunal hearing. 

  3. In a written statement accompanying his protection visa application the applicant claimed to be a Christian from Karachi in Pakistan.  He claimed that if he returned to Pakistan, Muslims would harm him because of his involvement in typing an Urdu book which supported the authenticity of the bible and was said to be “considered by some to be a threat to the Islamic faith”. 

  4. The applicant claimed that in May 2008, after the book was published, three Muslims had approached the author and threatened him with harm if he did not hand over all the copies of the books.  He claimed that after the author went into hiding, these people started to look for him as the composer and designer named in the book.  The applicant claimed that these people sought him out at his home and that his family contacted him and advised him not to come home.  The applicant claimed that he then lived with his aunt until his departure for Australia with a World Youth Day delegation in July 2008.  He claimed that the group had visited and threatened his parents and had told them that his name and that of the author had been given to a Jihadi organisation.  His parents were scared to report this to the police as it could be seen as a challenge to the group and the police could be attacked by these terrorists.  The applicant also referred to attacks by terrorists on Christian churches and other places in Karachi between 2002 and 2005.

  5. The applicant provided a supporting letter from a Reverend of the Church of Pakistan in Karachi certifying that the applicant was a Christian who was involved in Christian activities and stating that because he had composed a particular book in Urdu he faced some problems from the Muslim community so that it was not possible for him to live in Pakistan.  The applicant also provided independent country information in relation to Muslim attacks on Christian and other targets in Pakistan.  He provided further supporting information to the Tribunal including a statement dated 24 December 2008 in which he claimed that on 15 November 2008 “they” attacked his brother, asked about his whereabouts and threatened to murder him.  He provided a medical certificate in relation to his brother.

The Tribunal decision

  1. In its reasons for decision the Tribunal set out the applicant’s claims in his protection visa application and his evidence at the Departmental interview, including the fact that he had responded “no” when asked if he was ever involved in “activities where he would speak to people about Christianity”, had indicated that there was no problem with attending a Christian church in Pakistan and that his family members continued to attend that church and confirmed that at the time he applied for his visa to attend World Youth Day (in March 2008) he had no problems.  It also recorded that the applicant stated that he had had no involvement in printing the book and said that it had been “launched on 19 April 2008 in his street” although he “did not know the exact location”.

  2. The Tribunal then set out in some detail what occurred in the Tribunal hearing, including the fact that the applicant said that he was never targeted because of his Christianity, that his problems began after he became involved with the book and that people were keeping an eye on him to see if he preached Christianity.

  3. In its findings and reasons the Tribunal concluded that it did “not find the applicant to be credible on some key aspects of his claims” and was “not satisfied that the applicant left Pakistan because of a fear of persecution, as described in his application and evidence”. 

  4. The Tribunal summarised the applicant’s claim that in April 2008 he had been requested by a named person to type handwritten pages from a book and that “after the book was launched, he became the target of Islamic fundamentalists because he had typed the book and his name and occupation were mentioned” in it.  He claimed “he left his home on 5 May 2008” and lived with his aunt until he left Pakistan on 10 July 2008 but that since that time “his enemies have continued to look for him and in November 2008, they confronted his brother and caused him injury”.  The applicant claimed that he could not “return to Pakistan because they would find him no matter where he [was] and may kill him”.  The Tribunal referred to the fact that on 16 February 2009 the applicant wrote to it claiming that he had forgotten to mention that his family had been told that he would be forgiven if he became a Muslim and that otherwise he would be murdered.

  5. The Tribunal accepted that the applicant was a Christian from Karachi, that he was active in his church (the Church of Pakistan, a Protestant church) and that he was employed as a graphic designer (by an organisation that was controlled by a diocese of Roman Catholic Church).  It also accepted that he had been asked to type handwritten pages in Urdu and that he did so, and that his name and occupation of graphic designer were included in the book.  However the Tribunal did not accept:

    that the applicant was targeted by Muslim fundamentalists because he was involved in the typing of the book.  The Tribunal does not accept that the author of the book was targeted, as claimed.  The Tribunal accepts that the applicant’s brother was the victim of an assault on 15 November 2008 by persons unknown but is not satisfied that he was the victim of this assault because of the applicant’s involvement in a book.

  6. The Tribunal set out a number of matters that led it to conclude that the applicant was not truthful and credible.  First, it referred to his evidence at the hearing about the claimed book launch on 19 April 2008.  He had said that he thought the launch “occurred outside his church in the street” and when asked if he had seen the book launch, he said he was at work and “had heard about it when he came home because they were talking about it.”  However when the Tribunal asked the applicant if he had been invited by the author to attend the book launch, he said “he had been invited but he did not know the time and he forgot about it.”  The Tribunal was “not satisfied that the book was launched in the applicant’s street or that the applicant was invited to the launch”.

  7. Secondly, the Tribunal had regard to the fact that when Muslim fundamentalists allegedly approached the author of the book, he was “not harmed in any way”.  Notwithstanding this the applicant claimed “that these men would seriously harm or kill” him.  The Tribunal was of the view that “the applicant’s role in the typing of the book would not attract adverse attention as claimed”.

  8. Next the Tribunal had regard to the fact that during the time the applicant claimed he was in hiding at his aunt’s place he continued to attend his workplace.  The Tribunal did not accept that he left his home on 5 May 2008.  It found it “implausible that the applicant would continue to attend his workplace, given his claims to be in fear of his life at that time” also being of the view that “had such persons wanted to locate the applicant, they could easily have found him before he departed Pakistan”. 

  9. The Tribunal also had regard to the delay in the applicant leaving Pakistan after he obtained his Australian visa.  It referred to the fact that while he claimed that “he feared for his life” and that if “he return[ed] to Pakistan he could be killed”, he did not leave Pakistan until nearly two months after being granted a visa.  It found his explanation that “he did not have funds to leave Pakistan” to be “unconvincing”, being of the view that “had the applicant wished to leave sooner than he did, he would have managed to secure financial support in order to do so” and noted that “[w]hen this issue was discussed with him during his Departmental interview, he did not mention anything about a lack of funds and said that he had planned to travel as part of a group”.

  10. The Tribunal considered the letter of support from the Reverend from the Church of Pakistan dated 14 July 2008 but, on the basis of the applicant’s evidence that he “had not discussed his fears with the Reverend” who had been told about these matter by his family and who had “included these details in his letter in an effort to support the applicant”, the Tribunal placed “no weight on the contents of this letter in relation to the applicant’s claimed fears of persecution”.

  11. The Tribunal did not accept the applicant’s post-hearing claim that “he [would] be forgiven if he [became] a Muslim”, being of the view that he was given “every opportunity” at the three-hour hearing to “discuss his claims and any fears he might have”.  The Tribunal was of the view that “the concerns raised by the Tribunal during the hearing resulted in the applicant feeling less optimistic about his application” and that “he concocted this latest claim in an effort to strengthen his application”.  The Tribunal was “not satisfied that his family ha[d] been told that the applicant [would] be forgiven if he [became] a Muslim and that if he [did] not accept the religion, he [would] be murdered”.

  12. The Tribunal concluded that overall it did “not accept that the applicant was targeted by fundamentalists because of his involvement in the typing or graphic design of a book” or that “members of his family were approached and/or harmed” or that he “left Pakistan because of a fear of persecution”.  It was not satisfied that he was at “risk of suffering serious harm in the reasonably foreseeable future if he return[ed] to Pakistan” and was “not satisfied that the applicant ha[d] a well-founded fear of persecution for a Convention reason”.

The application

  1. The applicant sought review by application filed in this court on 27 March 2009.  In his original application he relies on two broadly expressed allegations of error claiming the Tribunal did not act “in accordance with the law” and that the decision was “full of jurisdictional errors”.  In the absence of particulars these generally expressed grounds do not establish jurisdictional error on the part of the Tribunal.  The applicant filed a document headed “Amended Application” on 9 June 2009 which commences with a recital of the applicant’s factual claims.  He filed written submissions which reiterated his concern with the Tribunal decision and procedure and elaborated on aspects of his claims for protection.  A number of claims or allegations of possible jurisdictional error can be discerned. 

Whether failure to have regard to evidence

  1. The applicant contended that the Tribunal “brushed aside” the documents he provided by way of evidence and his oral evidence, or did not take these matters into account.

  2. However it has not been established that the Tribunal erred in a manner constituting jurisdictional error in the way in which it considered the oral and written evidence put before it by the applicant.  The Tribunal is not bound to refer to all of the evidence provided by an applicant (see Minister for Immigration and Multicultural AffairsvYusuf (2001) 206 CLR 323; [2001] HCA 30). In any event, it is apparent from the Tribunal’s reasons for decision, including its summary of claims which contained a comprehensive description of the material provided by the applicant, that the Tribunal was aware of the applicant’s claims and considered all of the documents provided by him.

  3. As counsel for the first respondent submitted, because the Tribunal did not believe the core factual claim of the applicant it was not necessary for it to make findings as to the reliability or otherwise of material which did not advance the applicant’s claim to fear harm in Pakistan based on his involvement in the publication of a book that offended fundamentalist Muslims.

  4. Thus, given the nature of the applicant’s claims as clarified before the Tribunal and the Tribunal’s findings in relation to the credibility of the central aspects of those claims, it was not necessary for the Tribunal to consider the independent country information provided by the applicant in relation to activities of Muslims in relation to Christian and other targets in Pakistan. 

  5. It was conceded by counsel for the first respondent that the Tribunal was required to consider, in the sense of an “active intellectual engagement” (as referred to in Tickner and Others v Chapman and Others (1995) 57 FCR 451 at 462, 476 to 477 and 495 and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212]), the supporting letter from the Reverend. However, it is clear from the Tribunal reasons for decision that it addressed this letter but decided to give it no weight due to the fact that the Reverend had no first-hand knowledge of the matters referred to in the letter. This approach was open to the Tribunal on the material before it for the reasons which it gave, in particular having regard to the evidence of the applicant in that respect.

  6. Insofar as it was intended to be contended that the Tribunal failed to address the applicant’s evidence about his brother and the supporting medical certificate, contrary to any such suggestion, the Tribunal accepted that the applicant’s brother was assaulted albeit not for the reasons given by the applicant.  It considered the applicant’s claims and the supporting material in this respect. 

Failure to consider claims

  1. It appears that the applicant also claims that the Tribunal should have considered a general claim that he feared harm in Pakistan as a result of his Christian beliefs and activism.  However it is apparent from the Tribunal reasons for decision that the applicant’s evidence at the Tribunal hearing was that his problems only began after he became involved with the claimed book, that he was never targeted because of his Christianity and that his family continued to attend the church he had attended.  Insofar as any subsidiary claim was made that related to the applicant’s claimed Christian activism that allegedly emerged after the Muslim fundamentalists became interested in him after the publication of the book, the Tribunal rejected the claim that the applicant was targeted by Muslim fundamentalists as a result of his involvement in the book.  Hence, it was not necessary for it to address any associated subsidiary claim (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [67] – [68]). Insofar as any such claim was made it was subsidiary to the core claim that the interest of the Muslim fundamentalists in the applicant arose because of, and not until after, he became involved with the book. This is not a case in which it can be said that the Tribunal failed to consider a “substantial, clearly articulated argument relying upon established facts” in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 ; [2003] HCA 26.

  2. Insofar as the applicant contended that the Tribunal failed to consider whether the events complained of might occur again and the availability of state protection, as the Tribunal did not accept his claims about having been targeted by Muslim fundamentalists it was not necessary for it to consider or make findings in relation to these matters beyond the conclusion (based on its findings) that it was “not satisfied that the applicants stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to Pakistan”. 

The oath at the Tribunal hearing

  1. The applicant also took issue with the fact that the Tribunal “noted” in its description of what occurred at the Tribunal hearing that “the applicant did not choose to swear on the Bible and was asked if there was any reason why he did not” and “[h]e said he felt he was telling the truth and did not need to swear on the Bible”, that “he would not take an oath on the Bible” and “knew what he was doing was right and he gives lots of importance to the Bible”, his parents having taught him since childhood “not to involve God in other things”.  

  2. However there is nothing in the Tribunal reasons for decision to indicate that the fact that the applicant failed to take an oath on the bible was relevant to its findings in relation to the applicant’s credibility or otherwise.  In particular, this is not a case in which either actual or apprehended bias is apparent on the basis of the Tribunal’s account of what occurred in the Tribunal hearing, having regard to its reasons for decision as a whole (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).

Other concerns

  1. The issues that the applicant raised in relation to factual matters concerning relocation and recent country information in relation to the prevailing situation in Pakistan were not matters that informed the Tribunal’s conclusion and are not matters that demonstrate jurisdictional error. 

  2. The applicant contended that documents such as the medical certificate for his brother “ha[d] to be accepted or rejected all the way”.  The Tribunal referred to the medical evidence about the applicant’s brother being the subject of assault.  It accepted that is brother was the victim of assault by persons unknown.  This did not mean that it was not open to the Tribunal not to be satisfied that the brother was the victim of this assault because of the applicant’s involvement in a book.  More generally, the fact that the Tribunal did not accept the applicant’s explanations (for example in relation to his reasons for delay in travelling to Australia) does not establish jurisdictional error. 

Section 91R(3) of the Migration Act

  1. In written submissions counsel for the first respondent noted that the Tribunal had not referred to the applicant’s conduct in Australia or made any findings pursuant to s.91R(3) of the Migration Act 1958 (Cth), but contended that it was not necessary for the Tribunal to do so in circumstances where the applicant in no way relied upon his Christian faith and church attendance in Australia to support his claim to fear harm in Pakistan. I agree (and now see the decision of the High Court in Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 83 ALJR 1135; [2009] HCA 40). I note that the Tribunal accepted that the applicant was a Christian as claimed.

Section 424 of the Act

  1. When this matter first came before the court for hearing, counsel for the first respondent raised the issue of the possible application of s.424 of the Act in light of the decision of Raphael FM in SZNAV and Others v Minister for Immigration and Citizenship and Another (2009) 229 FLR 461; [2009] FMCA 693. In that case Raphael FM held that the Tribunal’s decision was affected by jurisdictional error on the basis that it did not follow the requirements attaching to a s.424(2) invitation to give additional information in relation to the letter acknowledging receipt of the applicant’s application. The hearing was adjourned to enable the parties to make submissions in relation to this issue.

  2. By the time that the matter came back before the court, the High Court had handed down the decision in Minister for Immigration and Citizenship v SZKTI (2009) 83 ALJR 1017; [2009] HCA 30 in which it found that a request to a witness to provide information over the telephone was not constrained by the mandatory procedural requirements attaching to s.424(2) of the Act. Moreover, in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 the Full Court of the Federal Court allowed an appeal from the decision of Raphael FM finding that, following the decision of the High Court in SZKTI, the procedural restrictions on the Tribunal’s power to issue an invitation to give additional information referred to in s.424(2) of the Act did not qualify its general power in s.424(1) to “get any information that it considers relevant” or to do so by reliance on other powers to obtain information (see SZNAV at [18] to [21]).  The Full Court stated at [21] to [22]:

    … Following the decision of SZKTI, it cannot be said that s424 is the only source of the Tribunal’s power to obtain information.  It has that power by dint of s415(1) and the powers of the primary decision-maker in s56 which the Tribunal thereby attracts.  Further, the difference between ss424(1) and 424(2) is to be found in the consequences of non-compliance, and not the making of fine distinctions between the Tribunal getting relevant information and inviting a person to give additional information.  Section 424(1) is facultative.  Failure to comply with such a request has no consequence adverse to the applicant for review.  Section 424(2) is a formal request.  It must be given in a particular manner (s424(3)) and satisfy certain requirements (s424B).  Failure to comply with such a formal invitation has adverse consequences.  The Tribunal may make a decision on the review without inviting the applicant for review to appear at a hearing (ss424C(1) and 425(2)(c)).    

    In the present case, no adverse consequences flowed to the respondents.  They were not deprived of a hearing.  Hence, and as the Minister’s counsel submitted, the only possible questions that arise in a context where jurisdictional error is required in order to vitiate the Tribunal’s decision are whether the Tribunal had power to say what it did in the acknowledgement letter (which it did, ss.415(1) and 424(1)) and whether the exercise of that power contravened any provision of the Act (which it did not, as there was no question of the Tribunal proceeding to make a decision on the respondents’ application if they did not provide any “documents, information or other evidence” in response to that letter)… 

  3. The same may be said in this case.  Hence, any claim based on the principles considered by Raphael FM in SZNAV does not establish jurisdictional error on the basis of a failure to comply with s.424 of the Act.

Section 424A of the Act

  1. The other possible issue raised by me and addressed by counsel for the first respondent was whether the Tribunal was under an obligation to comply with s.424A of the Act to put to the applicant for comment what may be described as certain “omissions”.  Counsel for the first respondent made lengthy submissions to the effect that the reasoning of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 impliedly overruled the observations of Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 156 FCR 205; [2006] FCAFC 174 at [39] that there was no reason in principle why an omission should be treated differently from a positive statement for the purposes of s.424A (by reference to the reasoning in the earlier decision of SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2). Reference was made to the different approaches taken by judges of the Federal Court and in this court in relation to whether the reasoning in NBKS survived SZBYR.

  2. In the alternative, it was submitted that even if omissions and reasoning in respect thereof could in some cases constitute “information” for the purposes of s.424A(1) of the Act, the obligations under that section were not invoked in this case. The applicant, who was self-represented, did not address this particular issue in his written or oral submissions. As I accept the first respondent’s alternative submissions in this respect it is not necessary for present purposes to address the issue of whether SZBYR impliedly overruled NBKS (see SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110 at [6] and SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236; [2008] FCAFC 119 at [1]).

  3. It is nonetheless important to note that in SZBYR the High Court stated at [17] – [18]:

    Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”.  The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.  The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act.  The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa.  The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.  When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.  Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

    Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”

    does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.  However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

  4. The first of the possible omissions and relevant reasoning by the Tribunal emerged in its consideration of the applicant’s evidence in relation to the book launch.  In contrast to the situation in NBKS, while the Tribunal did not accept that the book was launched in the applicant’s street or that he was invited to the launch, it made no positive finding for which any omission provided either express or implicit support.  The passage dealing with this issue and the Tribunal’s reasons for decision are not such as to warrant the drawing of a positive inference that the Tribunal had regard to the absence of detail or other omission in the applicant’s evidence before the delegate or indeed before it, at any relevant anterior time (see SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 at [16] per Perram J). The matters of concern to the Tribunal in relation to the applicant’s evidence about the book launch were inconsistencies in the nature of his evidence at the Tribunal hearing. The Tribunal referred to the fact that at the hearing the applicant said he thought the book launch occurred outside his church on the street and that when asked if he had seen the launch he said he was at work and “he said he heard about it when he came home, because they were talking about it”.  However when the Tribunal asked the applicant if he had been invited by the author to attend the launch “[h]e said he had been invited but he did not know the time and he forgot about it”.  It was in light of this evidence at the Tribunal hearing that the Tribunal was not satisfied that the book was launched in the applicant’s street or that he was invited to the launch. 

  5. In its account of the hearing the Tribunal had also recorded that it mentioned to the applicant that he had stated in his interview with the Department that he did not know the exact location of the book launch, to which he responded that he told the officer that the book was launched in his street.  The Tribunal then reminded the applicant that he said it had been launched in the street near the church (that is, that he said this at the Tribunal hearing) and asked him why he would not know the exact location if he had received an invitation, to which he replied that he was not told the location, and later on he heard it was launched in the street.

  6. However, in failing to be satisfied that the book was launched in the applicant’s street or that the applicant was invited to the launch, or in finding that the applicant was not truthful or credible, the Tribunal did not have regard to omissions or incomplete statements in the applicant’s evidence before the delegate, as distinct from inconsistencies in his evidence at the Tribunal hearing about when and how he heard about the book launch, and why he did not attend.  Even if in some circumstances an omission can constitute information, the circumstances in this case are not such that an inference should reasonably be drawn that at a relevant anterior time the Tribunal considered that any omission from the applicant’s evidence would be the reason or part of the reason for affirming the decision under review as discussed in SZLPJ (and see SZBYR at [18] to the effect that “gaps, defects or lack of detail” do not invoke s.424A obligations).

  7. In particular, this is not a case in which the applicant “said so much and no more” to the delegate (cf SZECF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 89 ALD 242; [2005] FCA 1200 and see Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285; [2007] FCAFC 162) such that this could be characterised as “information” in the sense considered in NBKS (see [74] per Allsop J). 

  8. More generally in relation to the applicant’s evidence about the book launch, it has not been established that the Tribunal misunderstood the applicant’s evidence (as he submitted) or that it failed to consider his claims in this respect or fell into jurisdictional error in its reasoning. 

  9. The other aspect of the Tribunal’s decision which might be seen as involving a possible omission was its consideration of his delay in leaving Pakistan.  The applicant obtained a visa to enter Australia on 13 May 2008 but did not leave Pakistan until 10 July 2008.  Before the delegate he explained that he did not leave Pakistan until July because the group he was travelling with was not travelling until then, whereas before the Tribunal he claimed that he delayed his departure from Pakistan because he had insufficient funds to travel.  The Tribunal found this latter explanation to be unconvincing.  While it referred to the fact that when the issue was discussed with the applicant during the Departmental interview, he did not mention anything about a lack of funds, that was in the context of referring to the fact that he had claimed at that time that he had planned to travel as part of a group.  While the Tribunal did refer to an omission, this was no more than an observation explaining that the applicant’s evidence before the delegate and the Tribunal was inconsistent, in that he had provided two different explanations for the delay in leaving Pakistan.  On the approach taken in NBKS at [35] per Weinberg J, no s.424A obligation would arise in relation to the applicant’s evidence to the delegate. Nor did a s.424A obligation arise in relation to any inconsistency in his evidence (see SZBYR).  As indicated above, the fact that the Tribunal did not accept the applicant’s explanation about a lack of funds does not establish jurisdictional error.  

  10. Hence, whether or not SZBYR impliedly overruled NBKS, I am not satisfied that any omissions in the applicant’s evidence to the delegate are such as to constitute information that the Tribunal considered was the reason or part of the reason for affirming the decision under review such as to give rise to the obligation in s.424A of the Act.

  11. As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  5 November 2009

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Cases Citing This Decision

1

SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138