SZOCE v Minister for Immigration

[2010] FMCA 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCE v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1007

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act by failing to put to the applicant a copy of his business visa application.

Migration Act 1958 (Cth), s.424A

Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31
MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 483; [2008] FCA 319
Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352; [2010] FCA 908
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361
SZLPO and Others v Minister for Immigration and Citizenship and Another(No 1) (2009) 177 FCR 1; [2009] FCAFC 51
SZMNP v Minister for Immigration and Citizenship [2009] FCA 596
SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486
SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123

Applicant: SZOCE

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG24 of 2010

Judgment of: Barnes FM

Hearing date: 25 November 2010

Delivered at: Sydney

Delivered on: 22 December 2010

REPRESENTATION

Counsel for the Applicant: Ms A B Douglas-Baker

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG24 of 2010

SZOCE

Applicant

And

MINISTER FOR IMMIGRATION AND 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 15 December 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of Cameroon, arrived in Australia in July 2009 as the holder of a business visa.  During an interview at the airport with an officer of the Minister’s Department he made claims for protection.  He was detained and on 13 August 2009 lodged his application for a protection visa. 

3. In support of his application the applicant provided the Department with country information, supporting documentation and a statutory declaration in which he claimed to fear persecution on the basis of an imputed political opinion consisting of a perceived association with the Southern Cameroon National Council (SCNC) which sought self-determination and independence for “English Cameroons” and also on the basis that he feared village chiefs of his tribe would harm him as he had not followed the tradition of marrying his late father’s wives. 

4. The applicant claimed that in December 2008 he had come to the attention of the “French police” who came to his home and accused him of being an SCNC worker and asked him if he was an SCNC member because he had SCNC football jerseys hanging on his washing line.  He claimed he had washed the jerseys for a friend who played football with the SCNC team to earn some money.  The applicant claimed that he was not a member of the SCNC, but that when questioned and beaten by the police he had escaped because he feared he would be arrested and possibly killed.  He had gone into hiding in a village where his grandparents lived.  He claimed that two weeks later he returned to his home, thinking it was safe to do so, but three days later the police had again come to his house, beaten him and threatened to take him into custody.  According to the applicant the police left his home because they were afraid that English-speaking people who had gathered would start a riot.  He again went into hiding in his family village.  He claimed that in July 2009 the police came to the village looking for him but that the chiefs of the village did not tell them where he was.  His mother subsequently came to the village, having arranged a visa and ticket for him to leave the country. 

5. The applicant also claimed that his father had died in March 2008 and that he had had been crowned as his father’s successor in June 2008 but that he had refused to marry his father’s widows in accordance with the local tradition.  The applicant claimed that in September 2008 the traditional chiefs of the village had asked his mother where he was and that they wanted to lock him up in the palace compound as he refused to “do the tradition”.  He claimed that his mother did not tell the chiefs he was in the village after the December 2008 incidents. 

6. The applicant claimed to fear that if he returned to Cameroon he would be searched for by the police, arrested and killed as the police believed (incorrectly) that he was a member of the SCNC.  He claimed that his brother had told him that after he left Cameroon the police went to the family house and elsewhere to search for him.  His mother had reported the police beatings to a lawyer and to the Human Rights Commission. 

7. He claimed that the police had searched for him in the two English-speaking provinces of Cameroon and that he could not stay in any of the eight French-speaking provinces as he had an English name that would bring him to the attention of the police. 

8. Included in the supporting documents provided to the Department was an affidavit sworn by a Cameroonian barrister on 12 August 2009 which attached a copy of a convocation or summons dated 6 May 2009 requiring the applicant to appear at a police station.  This was said to have been served on the applicant’s mother on 2 August 2009. 

9. The applicant participated in an interview with a delegate of the first respondent.  His application was refused on 30 September 2009.  He sought review by the Tribunal.  He attended a Tribunal hearing conducted on 28 October 2009 and 30 October 2009. 

10. On 2 November 2009 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on or respond to information in a number of categories relating to arrival interview, business visa application documents, the founder and former general manager of the place the applicant claimed to work in Cameroon, document fraud, departure from Cameroon and failed asylum seekers. In addition, the applicant was invited to provide information in the form of any views he had on the accuracy of the draft summary the Tribunal had prepared of its discussion with him at the hearing. The applicant was also given the opportunity to make further submissions on the matters discussed at the Tribunal hearing.

11. The applicant’s solicitor responded to the s.424A letter by letter of 9 November 2009.

The Tribunal decision

1. In its reasons for decision the Tribunal set out in detail the applicant’s claims made to the Department and to the Tribunal, both orally and in writing.  It referred to the supporting documentation he had provided and to independent country information in relation to the situation in Cameroon. 

2. In its findings and reasons the Tribunal accepted that the applicant was Cameroonian.  It summarised his claims as a claim to fear harm “from security agents, such as the police, who may arrest, detain and mistreat him” on the basis of “his suspected support for secessionists” and a claim to “fear that tribal chiefs in his ancestral village [would] force him to marry his deceased’s father’s [widows], or at least would prevent him from marrying his partner.” 

3. The Tribunal accepted that the applicant was an Anglophone and a member of the tribe to which he claimed he belonged.  It also accepted his claims about where he was born and his attendance at school in the Northwest Province. 

4. The Tribunal considered it plausible, in light of country information, that Anglophones who advocated secession were treated harshly in Cameroon and that this “spills over” into broader discrimination and mistrust.  However it observed that the applicant had not claimed, and that the country information did not go so far as to suggest, that the mere fact of being an Anglophone in Cameroon established a real chance of Convention-related persecution.  It found that the applicant’s circumstances as a whole, including his father’s government employment in the Northwestern Province, his mother’s ownership of land, his residence in the capital and his employment on major shipping projects, supported the view that he was not subject to any discrimination amounting to persecution. 

5. In assessing the applicant’s claims, the Tribunal found that it was not satisfied that he had given a “full and frank” account of his family and employment situation before coming to Australia.  It accepted that the applicant had a de facto wife and two daughters by her born in 2007 and 2009 as claimed.  The Tribunal had regard to the fact that the applicant told it that the documentation provided to support his business visa application (including a 2005 marriage certificate and birth certificates for two children born in 2005 and 2007) was fraudulent and that he had not been legally married at all.  While the Tribunal considered it possible that the applicant had presented fraudulent documents to enhance the prospect of being granted the visa, it found that it was not necessary to make definitive findings about his family composition for the purposes of the decision. 

6. The Tribunal accepted the applicant’s claim that he worked for a particular organisation until at least December 2008, but found that his evidence about the subsequent period until his departure from Cameroon in July 2009 (in relation to his source of income, his ability to stay in a hut in the family compound undetected by tribal chiefs for the first half of 2009 and his activities during that period) was “scant and unconvincing”.

7. The Tribunal first addressed the applicant’s claims to fear persecution on the basis of his imputed political opinion, in particular that such fear was triggered by an occasion in December 2008 when he agreed to wash clothes for a colleague or friend, not realising that they were SCNC football team jerseys and that he was then unexpectedly subjected to police accusations that he was supporting SCNC secessionists. 

8. However the Tribunal found “serious flaws” in the applicant’s claims and evidence about this incident and the subsequent events up to the time of his departure from Cameroon which were said to “raise concerns about the veracity of the claims”.  The Tribunal referred to inconsistencies and instances where the applicant was “unable to provide the kind of peripheral observations that, in the Tribunal’s opinion, would demonstrate that they were actually part of his personal experience” and also to occasions on which he “struggled to explain his actions and motives.” 

9. The Tribunal found it significant that the applicant had stated twice at his arrival interview that the Cameroonian authorities were persecuting him because of his father’s membership of the SCNC as well as the specific incident involving the t-shirts.  However at the Tribunal hearing the applicant had indicated that he was not sure about his father’s political affiliation and had hinted only vaguely that others had been “responsible”.  The Tribunal found that these inconsistencies went to the heart of the claimed adverse interest of the Cameroonian authorities in the applicant.  While it accepted that the applicant had been confused and tired on arrival in Australia, it found that this did not adequately explain such an important inconsistency between the applicant’s initial statements and his subsequent claims. 

10. The Tribunal found that the applicant’s evidence about his contact with the person who gave him the t-shirts to wash and the confrontation with the police raised a number of concerns, including the fact that the applicant had given inconsistent evidence about this person, when they first met and the circumstances that led the person to give the applicant the t-shirts.  The Tribunal found that the applicant’s explanations did not explain all the inconsistencies or displace the Tribunal’s impression that his evidence had been “changeable”.  This was said to be significant given the other person’s pivotal role in the applicant’s refugee claims. 

11. Further, having regard to country information indicating that the Cameroonian government strongly disapproved of the SCNC and sometimes treated activists harshly, the Tribunal found that the applicant’s description of the incidents in December 2008 that led to the police pursuit of him showed “a casual attitude and lack of observation that appear[ed] to be at odds with his knowledge” of the attitude of the Cameroonian government to the SCNC.  It set out specific concerns in this respect. 

12. The Tribunal found that aspects of the applicant’s evidence about his personal experiences “lacked the kind of peripheral information that would lend it credibility” and that he showed “a surprising lack of knowledge or enquiry” about whether the person who gave him the t-shirts to wash or members of the SCNC football team had also been targeted by the police. 

13. The Tribunal also found “problematic” the applicant’s account of his activities from early December 2008 until his departure from Cameroon in July 2009.  As indicated, it did not accept that he had given a full and frank account of his whereabouts, income and activities during this period.  The Tribunal found that the applicant’s account of his activities in the village was “vague and often evasive” and that evidence about his source of income was “scant”.  It observed that his claim was that for more than five months neither the Cameroonian authorities nor the tribal chiefs living in the village he was hiding in (who had an adverse interest in him) knew of his whereabouts. 

14. The Tribunal found the applicant’s return to the capital in December 2008 (just two weeks after leaving) was inconsistent with his claim that the police had tried to arrest him at his home for secession.  It found that his explanation for this return had “unravelled” when the Tribunal sought further details and did not explain why the applicant returned to his home just two weeks after the authorities tried to arrest him on political grounds. 

15. The Tribunal considered the affidavits sworn by a Cameroonian barrister, but stated that it had decided not to contact her, both because of concerns about establishing her identity given that there was a lack of consistency about the telephone numbers provided and a concern about telephoning a human rights lawyer in Cameroon to discuss the substance of the applicant’s claims.  In any event, the Tribunal found it difficult to place any weight on the content of the barrister’s statements as independent evidence of the applicant’s refugee claims, given that the content of her affidavit diverged markedly from the applicant’s own claims in a number of specified respects and that, on the applicant’s evidence, she was not in a position to provide independent corroboration of his claims. 

16. The Tribunal continued:

    The Tribunal finds strong evidence in the applicant’s use of his own passport and his departure from Cameroon more than 6 weeks after his Australian visa was granted, indicating that he did not fear persecution for political or any other reasons, and that the Cameroonian authorities had no adverse interest in him.  The applicant’s response to this information was, in essence, that he knew nothing of the arrangements until the last moment, and that he only knows that his mother had to sell property and pay an agent.  His post-hearing submission, in which he claims to have learned further details from his brother … basically repeats the same information.  The Tribunal found the applicant’s evidence about the amount of time he and his mother spent together from her arrival in [the village] to their farewell at Douala Airport to be vague and evasive, as well as the extent to which they discussed what she had done for him.  Given these concerns, the Tribunal does not accept that the applicant’s mother made all arrangements without his knowledge, right up to his departure.  Instead, it finds that the applicant was involved in the preparation of his visa application and travel arrangements, and that his delayed departure from Cameroon is a strong indicator that he did not flee persecution. 

17. The Tribunal placed very little weight on the purported convocation (summons) and a more recent arrest warrant and wanted notice submitted by the applicant as evidence of official interest in him.  It found it incongruous that the capital city police would take the trouble to come looking for the applicant at his mother’s home in another place in August 2009 carrying a convocation that had been issued in May 2009 and which had expired.  It also found that the provenance of the wanted notice of 28 May 2009 and arrest warrant dated 25 August 2009 was vague. 

18. The Tribunal found it particularly difficult to place weight on these documents as official evidence that the applicant was accused of secessionist or other anti-government political acts given country information about the extent of document fraud in Cameroon and “the applicant’s own past involvement in this”.  It continued:

    The Tribunal discussed with the applicant in some detail, and provided him with a copy of, the purported marriage and birth certificates that accompanied his business visa application.  Whether or not he has a prior marriage and children from that marriage is not central to this application, but the applicant’s statement that the documents are false indicates that he (or persons acting on his behalf) have obtained and/or manufactured official documents and accompanying stamps. 

19. The Tribunal also referred to the fact that the purported convocation, wanted notice and arrest warrant were prepared in very simple and easily replicable formats.  In light of the material before it, the Tribunal decided to place very little weight on them as evidence of official interest in the applicant. 

20. Having regard to inconsistencies in the applicant’s evidence, his conduct, the lack of relevant details and peripheral information and a number of claims which the Tribunal found lacked plausibility when considered collectively, the Tribunal concluded that such concerns far outweighed the applicant’s oral and written evidence including corroborative evidence.  It found that he did not become inadvertently linked with the SCNC in December 2008, that the authorities did not nearly arrest him on two occasions in December 2008 and that he did not go into hiding in his ancestral village. 

21. The Tribunal acknowledged that the applicant had claimed that he supported the SCNC in general terms, but that he did not claim, and there was no information to suggest, that a mere attraction to the SCNC’s principles put a person at risk of persecution. 

22. Insofar as the applicant had claimed that his father was a SCNC supporter, implying that his death in May 2008 had a political connection, the Tribunal had regard to the applicant’s evidence at the hearing that his father had died after stomach complaints which his relatives had blamed on others.  It concluded that the applicant’s father was not an SCNC activist, that he did not die in suspicious political circumstances and that the applicant was not at risk of political targeting through any association with his deceased father. 

23. The Tribunal then considered the applicant’s claims to fear persecution arising from his tribe’s tradition of requiring a dead man’s son to marry his widows (apart from the son’s mother).  The applicant claimed to fear that the chief of the tribe would detain him and force him to marry his father’s widows and would also prevent him from marrying the mother of his two children, at least by withholding his blessing for the marriage. 

1. The Tribunal stated that it did not have before it any independent evidence indicating that such a custom existed in the particular tribe to which the applicant belonged.  It found that the limited information before it did not reveal whether or not such a practice occurred in that tribe and, if so, whether it was currently enforced amongst reluctant young people as the applicant claimed. 

2. While the Tribunal addressed this claim on the basis that the applicant belonged to a particular social group of the sons of deceased fathers in particular tribes, it considered that the applicant’s conduct was very strong evidence that he was not subject to persecution for such a reason.  While it accepted that the applicant was given a ceremonial position following his father’s death in 2008, it found that there was a marked tension between the applicant’s claim that on two occasions in December 2008 he fled to his ancestral village where he stayed for the first half of 2009 and his claim to fear persecution through the imposition on him of a tribal tradition and that the applicant had struggled to explain this tension.  In any event, having found that the applicant did not flee police action in the capital, the Tribunal did not accept that he was in hiding in the ancestral village for six months for that reason.  It found that it had insufficient reliable evidence to determine the applicant’s actual movements in the first half of 2009. 

3. The Tribunal placed little weight on the “incomplete and sometimes puzzling” evidence as to the applicant’s de facto relationship as evidence that the tribal tradition had prevented him, in part or in whole, from marrying his de facto partner.  It found that the fact that the applicant stayed in Cameroon for more than a year after his father’s death was inconsistent with his claim that he was at risk of being forced to marry his father’s widows and thus denied his rights to choose his own partner and provide for his family.  It found that the applicant’s conduct as a whole demonstrated that he had no genuine fear of being subject to such a tradition anywhere in Cameroon. 

4. The Tribunal summarised its findings that the authorities did not accuse the applicant of being an SCNC supporter and pursue him and that he was not subject to a tribal marital tradition.  These findings led it to conclude that the applicant was not a credible witness and that he had fabricated his claims.  Accordingly, the Tribunal rejected all of the applicant’s claims of associated harm (which it summarised). 

5. The Tribunal also considered the applicant’s status as a failed asylum seeker if he were to return to Cameroon, notwithstanding that the applicant did not raise this claim and specifically stated at the hearing that he did not fear persecution for this reason.  In such circumstances and given that the applicant’s protection visa application would be treated confidentially the Tribunal found that there was no real chance of him facing persecution for this reason. 

6. The Tribunal concluded there was no real chance of the applicant facing persecution if he returned to Cameroon for reason of any imputed political opinion, tribal tradition or for any other Convention-related reason.  It was not satisfied that the applicant had a well-founded fear of Convention-related persecution now or in the reasonably foreseeable future.  The Tribunal affirmed the decision not to grant the applicant a protection visa. 

Section 424A claim

1. The applicant sought review by application filed on 7 January 2010.  He now relies on an amended application filed on 24 September 2010 which contains one ground which is as follows:

   The Tribunal made a jurisdictional error by failing to comply with s 424A of the Migration Act 1958 (Cth).

   Particulars

   a.  By letter dated 2 November 2009, the Tribunal wrote to the Applicant pursuant to s 424A of the Act attaching, inter alia:

   i.   A marriage certificate, two (2) birth certificates and letters of administration being documents included in a Business Visa Application made in the Applicant’s name and lodged with the Australian High Commission in Pretoria on 27 March 2009 (Attachment A). 

   b.  The Tribunal did not put to the Applicant, nor otherwise enclose with the s 424A letter, a copy of the Business Visa Application. 

2. In essence this ground is that the Tribunal erred in failing to put to the applicant for comment or failing to provide to him a copy of the application for an Australia business visa lodged on 27 March 2009 with the s.424A letter. I note that the business visa application is not in evidence before the court.

3. Section 424A(1) of the Act is as follows:

   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.

4. The applicant contended that information for the purposes of s.424A(1) of the Act was the existence of “evidentiary material or documentation” (as discussed in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). It was submitted that the business visa application itself (in addition to the documents provided as part of the business visa application) constituted evidentiary material or documentation and that particulars of this information ought to have been provided to the applicant for comment.

5. It was submitted that s.424A required the Tribunal to assess the “information” in question in advance of its findings in terms of its dispositive relevance to the Convention claims advanced by the applicant (SZBYR at [17]) and that such assessment did not depend on the Tribunal’s subsequent use of the evidence in its reasons (MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319 at [27] per Heerey J).

6. On this basis it was contended that at the time the Tribunal wrote the s.424A letter it identified the business visa application as well as the business visa application documents as information for the purposes of s.424A of the Act and anticipated that such information was potentially dispositive of the applicant’s claims for four separate reasons, which were said in written submissions to be as follows:

   (i)     The timing of the application (27 March 2009) relative to the date of the claimed beatings by French police (December 2008) and the Convocations (6 May 2009) might lead the Tribunal to infer that the Applicant did not depart Cameroon to flee persecutory harm as claimed. 

   (ii)   If the marriage certificate was genuine, it suggested that the Applicant had failed to marry [his partner] because he was already married, and not because of any threats from tribal elders as claimed.  If the letters of administration document was genuine, the Applicant’s father’s death did not occur as claimed. 

   (iii)   If the documents were not genuine, the Applicant or someone acting on his behalf had produced or manufactured fraudulent documents, and therefore other documents submitted by the Applicant might also be fraudulent, leading the Tribunal to place little or no weight on those documents as evidence that the Applicant is of adverse interest to the Cameroonian authorities as claimed. 

   (iv) Irrespective whether the documents are genuine or false, the documents might lead the Tribunal to draw adverse inferences as to the Applicant’s credibility, particularly if the Tribunal disbelieves some or all of the Applicant’s claims in relation to the making of travel arrangements to Australia.  (Footnotes omitted). 

7. I note that the manner in which the Tribunal put the information in question to the applicant in its s.424A letter was as follows:

   The information: Your business visa application was lodged with the Australian High Commission in Pretoria on 27 March 2009.  It includes documents relating to your employment and your planned deals with an Australia company that appear to be false.  As discussed at the hearing, it also includes a marriage certificate, 2 birth certificates and letters of administration (Attachment A).  They indicate, among other things:  (a) you married a [named person] on 2 February 2005, (b) you had 2 children, [named person] (DOB 9 November 2005) and [named person] (8 January 2007), and (c) your father died in 1982. 

   The information is relevant because:

   (a)   You or someone acting on your behalf lodged the application some 3 months after the claimed incidents in December 2008, and some 2 months before the authorities issued any convocation.  The timing of the business visa application (if the Tribunal does not accept that your mother and others made all the arrangements, and that you do not have any information about it to this day) may lead the Tribunal to infer that you did not depart Cameroon to flee persecutory harm arising from any incidents in December 2008. 

   (b)   If these documents are genuine, they suggest that you are already married and your failure to marry [named person] was not due to any threats or demands from tribal authorities, but because of your first marriage; and that the claimed death of your father in 2008 is also not truthful; or

   (c)    If these documents are not genuine, they suggest that you (or someone acting on your behalf) have had fraudulent documents, including official documents with stamps, manufactured.  The Tribunal may take into account your access to such materials in assessing the more recent documents that you have submitted, such as the purported convocation (summons), the arrest warrant and the wanted notice, and accordingly place little or no weight on these documents as evidence that the Cameroon authorities have an adverse interest in you. 

   (d)   In either case the Tribunal may draw adverse inferences about your credibility overall, particularly if it disbelieves some or all of your claims that you relied on your mother’s initiative in arranging your travel to Australia and that you also did not discuss with her any aspects of this when she travelled with you from [the village] to Douala. 

8. Counsel for the applicant acknowledged that the Tribunal had put to the applicant in its s.424A letter the fact that his business visa application was lodged on 27 March 2009 and that it included documents that appeared to be false and also a marriage certificate, birth certificates for children and letters of administration (copies of which were provided) which indicated certain things about his family composition and that his father died in 1982.

9. The applicant responded to the s.424A letter through his solicitor who stated, in relation to the “business visa application documents” part of the s.424A letter, that she was instructed that the applicant’s brother had informed the applicant that their mother had spoken to an agent to whom she gave money obtained from a partial sale of her farm and from family members, friends, relatives and church members, that she followed the agent’s instructions in obtaining the visa, and that it was the agent who compiled these fraudulent documents. The s.424A response also stated that any delay in applying for the business visa was as a result of the applicant’s mother struggling to get money to pay the agent and that the documents were not genuine, whereas the convocation, arrest warrant and wanted notice were genuine. The applicant’s solicitor also stated that the applicant claimed that on meeting his mother on 27 July 2008 (it appears that this is a typographical error and the relevant date is in 2009) his mother “immediately told him that she had a visa for him to leave the country”, that he asked how she had done this and she said family and friends had all pooled their money to pay for the visa, that immediately thereafter someone from the village arrived at the family compound indicating that the chief wanted to see the applicant, and that discussions thereafter concerned worries about the chief. 

10. Counsel for the applicant submitted that in its decision the Tribunal had relied on the business visa application and the business visa application documents to find that the information supplied was falsified, and that the business visa documents were fraudulent, and then to find that the documents provided by the applicant to the Tribunal were also fraudulent. 

11. It was submitted that both the business visa application documents and the business visa application in their terms contained a rejection, denial or undermining of the applicant’s claims to protection, to the extent that once such material was found to be false and such evidence was found to have been fabricated, other evidence corroborative of the applicant’s Convention claims was found to be fabricated and the applicant’s claims rejected as fabrication. 

12. The applicant submitted that the way in which the Tribunal ultimately dealt with this information was such as to permit the court to draw an inference as to the significance of that information for the Tribunal in terms of s.424A(1) of the Act. It was contended that to the extent that the Tribunal purported to discharge its mandatory statutory obligation by providing copies of the documents, because it had failed to provide a copy of the visa application itself, it fell into jurisdictional error and the applicant was denied the opportunity to comment on information central to the Tribunal’s later finding that he was to be comprehensively disbelieved.

13. Counsel for the applicant acknowledged that the obligation under s.424A was not to produce documents, but rather to provide “clear particulars” of “information”.  However it was suggested that in SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297 Flick J had indicated that there may be cases in which it might be appropriate to put a whole document to an applicant. While the applicant conceded that the circumstances considered in SZNKO were not on all fours with the circumstances in this case, it was contended that his Honour’s discussion of the present version of s.424A (which requires that “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review” be given to the applicant) was of assistance and that it was in that context that his Honour had stated (at [23]):

    There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to “comment … or respond …” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.

14. On this basis it was submitted that the Tribunal was bound to provide a copy of the business visa application to the applicant with the s.424A letter in the circumstances of this case, given that it was said that the whole of the business visa application and the attached documents were to be attributed to the applicant by the Tribunal in circumstances where the applicant had taken issue with the apparent falsity of the documents accompanying the visa application. The applicant submitted that he had to be given an opportunity to respond to all of the information contained in the business visa application, that being the context in which the information arose.

15. The first respondent submitted that this ground was not made out. It was pointed out that the obligation under s.424A is an obligation to give “clear particulars of any information…” and not an obligation to produce documents and submitted that the “information” referable to the business visa application was the date of its lodgement, which was put to the applicant for comment. 

16. It was also submitted that the Tribunal did not rely on the business visa application and the accompanying documents in the manner contended for by the applicant, that the findings in relation to the business visa application related to the timing of the application and the applicant’s involvement in travel arrangements and were based on the applicant’s response to the s.424A letter and his evidence.

17. It was also submitted that to the extent that the applicant’s submissions suggested that the Tribunal was obliged to disclose its reasoning process, this was not required by s.424A of the Act (see SZBYR at [18]).

18. Counsel for the first respondent submitted that SZNKO did not mean that there was an obligation to give the applicant a copy of the document and that insofar as there may be an obligation to identify the source of information that obligation had been met in the Tribunal’s s.424A letter.

19. There are two aspects to the ground relied on by the applicant. The first is an assertion that under s.424A of the Act the Tribunal was obliged to put to the applicant for comment a copy of his business visa application. The second is that the Tribunal was obliged to “enclose with the s.424A letter” a copy of the business visa application.  Neither aspect of this ground is made out. 

20. First, the obligation under s.424A(1) of the Act arises only in relation to information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. A document is not information, although it may convey information (see Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352; [2010] FCA 908 at [59] and also note SZLPO and Others v Minister for Immigration and Citizenship and Another (No 1) (2009) 177 FCR 1; [2009] FCAFC 51 at [11]). Further (subject to what is said below in relation to SZNKO) s.424A(1) only requires the Tribunal to provide “clear particulars” of any information to which it applies, not any document that is “referable to those particulars” (see SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361 at [24]).

21. The High Court considered the meaning of the concept of “information” in SZBYR. Relevantly, as Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated (at [17]), the “reason, or a part of the reason, for affirming the decision that is under review” is, in a case such as this, that the applicant is not a person to whom Australia owed protection obligations under the Refugees’ Convention.  In that context their Honours considered (at [17]) whether particular material contained in its terms “a rejection, denial or undermining” of the claims to be a person to whom Australia owed protection obligations. 

1. Putting aside the content of the accompanying documents (which were put to the applicant and about which no issue is raised), insofar as the date of the applicant’s business visa application can be seen as containing in its terms a “a rejection, denial or undermining” of the applicant’s claims (cf SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [23]), it was put to the applicant in the s.424A letter of 2 November 2009 as follows:

   You or someone acting on your behalf lodged the application some 3 months after the claimed incidents in December 2008, and some 2 months before the authorities issued any convocation.  The timing of the business visa application (if the Tribunal does not accept that your mother and others made all the arrangements, and that you do not have any information about it to this day) may lead the Tribunal to infer that you did not depart Cameroon to flee persecutory harm arising from any incidents in December 2008. 

2. Similarly, the fact that a business visa application for the applicant was lodged with the Australian High Commission in Pretoria (as well as the apparent falsity of documents and the discrepancy between the family composition information in the accompanying documents and in the applicant’s evidence before the Tribunal) was put to the applicant.  It is notable that the reason the Tribunal gave for the relevance of this information was not exactly as submitted for the applicant, but referred to possible disbelief of “some or all” of the applicant’s claims that he “relied on” his mother’s initiative in arranging his travel to Australia and that he did not discuss with her any aspects of this when she travelled with him from the tribal village to Douala (where the airport is situated). 

3. Insofar as the applicant asserted that the business visa application was information within s.424A(1) because it was (or would have been) “attributed” to the applicant, the Tribunal did not “attribute” the whole of the business visa application to the applicant.  Nor am I satisfied that an inference should be drawn that the possibility of such “attribution” meant that the whole of the business visa application was information within s.424A(1). Rather, the Tribunal referred to the applicant’s use of his own passport, his departure from Cameroon six weeks after his Australian visa was granted and found that he was “involved in the preparation of his visa application, and travel arrangements” (and that his delayed departure was a strong indicator that he did not flee persecution).  It rejected the applicant’s claim that he knew nothing of the arrangements (which were all said to have been made by his mother through an agent until the last moment before his departure from Cameroon).  The Tribunal did not accept that the applicant’s mother made all arrangements “without his knowledge, right up to his departure”. 

4. It is the case that, as the High Court stated in SZBYR (at [17]), the application of s.424A(1) is to be determined in advance of and independently from the Tribunal’s reasoning. However, as Jacobson J stated in SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 (at [38]), while the Tribunal’s reasons are not the starting point “it may be appropriate to refer to them to determine whether the Tribunal considered the information to be a reason for affirming the decision under review”. 

5. In this case the business visa application is not in evidence before the court. The Tribunal did not rely upon the business visa application itself to make findings in a way that it can be inferred that the whole of the application itself was information within s.424A(1) of the Act. What was relevant from the perspective of the decision maker was the timing of the application compared to the events of December 2008 and the alleged issue of the summons in May 2009 and the applicant’s knowledge of the application given that he did not leave Cameroon until more than six weeks after his Australian visa was granted.

6. There is nothing in the evidence before the court to establish that the content of the business visa application (beyond the matters put to the applicant in the s.424A letter) constituted information within s.424A(1) of the Act. Contrary to the applicant’s submission, it is not the case that the Tribunal made findings about the falsity of the application as such, as distinct from the accompanying documents, albeit the timing of the business visa application and the applicant’s knowledge of it may have been relevant in considering the weight to be placed on the fact that fraudulent documents (copies of which were provided to the applicant for comment) were used in connection with his business visa application. The Tribunal also put to the applicant that particulars of information relating to his employment and planned deals with an Australia company in the business visa application appeared to be false (albeit it did not rely on those matters in its reasons for decision). In circumstances where the business visa application is not before the court it is not apparent that the particulars of this information required provision of a copy of the document in which the information appeared.

7. The meaning of information “is related to the existence of evidentiary material or documentation” (SZBYR at [18]), but no part of the “text” or content of the business visa application has been identified as such “information”, apart from the date and fact of lodgement and the supporting documents put to the applicant for comment (see MZXBQ at [27] – [29]). It has not been established that the whole of the business visa application was information subject to the s.424A(1) obligation.

8. Nor is this a case in which there is any evidence or necessary inference that the Tribunal “considered” the content of the business visa application (apart from the information disclosed) to be information which would be part of the reason for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 at [24]).

9. Further, as Finn and Stone JJ observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24], the word “information” “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”. The s.424A(1) obligation did not extend to the Tribunal’s reasoning in relation to the business visa application.

10. The second aspect of this ground involves a contention that the Tribunal had to enclose a copy of the business visa application with its s.424A letter. However this is not a case in which it was necessary for the Tribunal to provide a copy of the whole of the business visa application to the applicant in order to provide clear particulars of the information within s.424A of the Act or to otherwise meet its obligations under that section (see Nader at [59] and SZLJC at [24]).

11. Section 424A(1) requires the Tribunal to give “clear particulars” of information to an applicant (as discussed by Flick J in SZNKO at [19] – [22]) and information for the purposes of s.424A “cannot in all cases be clinically divorced from the context in which it appears” (ibid at [23]).  However, critically, as Flick J stated in SZNKO at [23]: “How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case” bearing in mind that s.424A requires disclosure of “so much as to ensure that the opportunity to “comment … or respond …” is meaningful”. 

12. In SZNKO Flick J was addressing the difficulties of requiring a Tribunal to disclose the source of material.  His Honour dealt with the particular circumstances of the case before him, which concerned information contained within a comparatively short letter which had come to the attention of the Tribunal, in expressing the view that details as to the writer of that letter, in what capacity it was written and its date must be disclosed if “clear particulars” of that letter were to be given (at [25]), in order that there be a meaningful opportunity for the visa applicant to comment or respond.  In that case the only particulars disclosed of the letter in question related to the similarity and content of two letters, one of which was said to emanate “from a different union council” and to have been signed by a different person (at [25]). 

13. While in some circumstances the obligation to comply with s.424A(1) may require disclosure of the whole of a document containing information (even if the whole document cannot itself be described as information), having regard to the facts and the circumstances of this case it has not been established that a meaningful opportunity to comment or respond on information within s.424A(1) required the disclosure to the applicant of the whole of the content of the business visa application as part of the context in which the information about the fact and date of the application and the Tribunal’s concerns about the accompanying documents were put to him. The information referred to in the s.424A letter and its potential relevance were identified with sufficient clarity (see SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486). The applicant has not pointed to any particular aspect of the business visa application as relevant surrounding context. The Tribunal did not “attribute” the business visa application to the applicant, but rather found that he was involved in the preparation of his visa application and travel arrangements.  The Tribunal rejected his claims about his lack of knowledge of the application in the context of considering his delayed departure from Cameroon after the visa was granted. 

14. Insofar as it was necessary for the Tribunal to identify the source of the information in its s.424A letter, the Tribunal put to the applicant that his business visa application was lodged with the Australian High Commission in Pretoria on 27 March 2009 thus sufficiently identifying the document. This aspect of the ground relied on by the applicant is not made out.

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

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  22 December 2010