SZOGO v Minister for Immigration
[2011] FMCA 55
•7 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 55 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), s.91X |
| Daniels Corporations International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 SZHWY v Minister for Immigration & Citizenship [2007] FCAFC 64 SZNVE v Minister for Immigration & Citizenship [2010] FCA 251 SVTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 104 Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 Wheeler v Le Marchant (1881) 17 Ch D 675 |
| Applicant: | SZOGO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 618 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application, filed on 4 November 2010, is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 618 of 2010
| SZOGO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 11 May 2010, the solicitor for the Respondent was required to file a folder which was to be indexed, labelled and paginated containing all of the documents which may be relevant to the hearing. This order was complied with and the volume is identified as Court Book (“CB”). On the date of the hearing, the Court Book was marked as Exhibit “A”.
An affidavit of Michael Terence Jones dated 25 June 2010, was marked Exhibit B. Attached to the affidavit and marked T1 is a transcript of the hearing conducted by the second Respondent in its review of the Applicant’s Protection visa application on 1 February 2010.
The proceedings
The Applicant is a citizen of Lebanon. He arrived in Australia on 12 May 2009 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 16 September 2009. A delegate of the Minister refused to grant the Applicant a Protection visa on 18 November 2009 and notified the Applicant of the decision and his review rights by letter dated 18 November 2009. The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 1 December 2009. On 17 February 2010, the Refugee Review Tribunal affirmed the decision of the delegate and it is this decision that is the subject of these proceedings.
In support of his Protection visa application, the Applicant claims that he was raised in a conservative Muslim family. The Applicant states that he was introduced by a work colleague (a devout preacher) to the Jehovah’s Witness (JW) faith. Due to his conservative Muslim background, he was fearful of pursuing his new religion in Lebanon as JW’s are viewed as a political organisation rather than a religion. The Applicant claims that he cannot practise the JW faith in a way that he would like to as it requires preaching and attending prayer meetings as required by the Bible, which are prohibited in Lebanon and he fears persecution.
The original application contained a single ground which claimed that the Tribunal failed to consider the entirety of the Applicant’s case. At the commencement of the hearing, Mr Jones sought leave to file an Amended Application to include a further ground of appeal arising from the conduct of the hearing. As there was no objection, leave was granted. The Amended Application dated 4 November 2010, contains the following grounds:
5. The Tribunal erred by failing to consider the entirety of the Applicant’s case.
Particulars
The Tribunal tested the Applicant on the extent of his knowledge of Jehovah’s Witnesses dogma and concluded that he did not have a profound knowledge, thereby concluding he would not have a well-founded fear of persecution on return to Lebanon. In so doing, the Tribunal did not consider the possibility that the Applicant may be perceived as having become an apostate from Islam regardless of the depth of his knowledge of the other religion.
6. The Tribunal exceeded its jurisdiction by questioning the Applicant about a matter in respect of which it had notice that legal professional privilege would apply.
Particulars
The Tribunal questioned the Applicant about his reasons for not attending an interview with an Immigration officer before the delegate’s decision was made. The Tribunal was on notice that the Applicant’s reasons for not attending the interview had been the subject of discussion with his legal representative. The Tribunal did not advise the Applicant that he was not obliged to divulge the contents of communications between himself and his legal representative. The Applicant’s response to the Tribunal’s questions on this matter formed part of the Tribunal’s reasons for affirming the decision under review.
Consideration
Ground one
Mr Jones, appearing for the Applicant, relied on two grounds:
a)that the Tribunal failed to consider the entirety of the Applicant’s case; and
b)the conduct of the Tribunal at the hearing.
Mr Jones states that the Applicant’s fear of persecution in his home country was based on being perceived as an apostate for Islam, whereas the Tribunal concentrated instead on whether the Applicant had a “correct and orthodox understanding of the doctrines of a particular religion, the Jehovah witnesses”. In doing so, it constructively failed to exercise its jurisdiction by failing to address the Applicant’s case.
In his application for the visa, the Applicant stated that he would suffer “serious harm” (CB 22) at the hands of his “family and other Islamic fundamentalists” (CB 23), and in answer to a question on the application form, the Applicant gave the following response:
44. Why do you think this will happen to you if you go back?
Because I was born a Muslim and have converted to the Jehovahs Witness faith.
(CB 23)
Mr Jones contends that during the course of the Tribunal hearing, the Applicant developed his argument in the following way.
a)He was introduced to a different religion and liked it, it was an offence to leave Islam (T6,43-45).
b)He asked his father what would happen if someone changed their religion and was told that he would be cut into four pieces (T 7,3-6).
c)His father and uncle are Islamic fanatics (T 7, 29-40).
d)He became interested in the JW religion through a friend he met in Lebanon. The reason for his interest was because he was attracted to “people who love peace or they don’t like war, and they don’t like to kill each other” (T8,1-6).
e)The Applicant’s friend was honest and straightforward, did not lie or like people who lied. He was true to his feelings (T 7,21-23). He did not like to fight, and explained that his religion was peaceful and did not believe in overpowering people or using force (T 8, 1-10). The JW faith was anti-war, but pro peace and people, and honesty. The Applicant was impressed, and thought it was a “nice religion” (T 8, 20-22). Practitioners of the faith were nice to each other, loved and hugged each other. He found this a “nice thing” (T 8, 27-29).
Mr Jones stated that since the Applicant’s arrival in Australia, he had developed an awareness of and practised more specific instructions in the doctrine of their religion. However, he was aware that he was still learning and was not yet qualified to tell other people about their religion (T 18, 40-41). The Tribunal questioned the Applicant in considerable detail about his involvement with JW’s in Australia (T 11, 6-12, 22; T 14, 41-15, 14) and the doctrines of the religion (T 15, 15-18, 47). The Applicant gave credible descriptions of his personal study of a Mr Taba (T 11, 11-12.9) and attendance at a JW meeting room in Keilor, which he described in some detail (T 12, 11-22, 14, 41-15, 13).
Mr Jones submits that the Applicant’s knowledge of the doctrine of the religion was commensurate with his claim to be a learner and is not yet ready for baptism (T 18, 47). In particular, he had learned that they believed Jehovah was God and Christ was his son (T 15, 24); they did not believe in statues or birthdays (T 15,30-31); that Jesus would rule the world with 144,000 people who have risen from the dead (T 16, 1-7); nor that there was only one holy day (T 18, 1-2). The Applicant did not bring a book written in Arabic to the hearing but advised the Tribunal when questioned about this book, that it was in his car. This book is an introductory work about the faith that he found easier to understand than the full Bible (T 19, 5-20, 10). Although the Applicant made reference to “the holy bible” (T 20, 44), he was quite aware that the practitioners did not use that term (T 19, 33).
The argument advanced by Mr Jones is that the Tribunal concluded, without citing any evidence, that the Applicant’s knowledge of the doctrine was “rehearsed” (CB 177 at [76]) and that his activities in Australia were not “due to a genuine interest in the JW faith” (CB 118 at [81]). In reaching this conclusion, the Tribunal was concentrating on the Applicant’s level of intellectual knowledge of the doctrine. The Applicant, however, did not claim that he was interested in the religion for that reason. It is submitted that the Tribunal imposed on the Applicant’s claim a mechanistic and overly intellectual interpretation of a person’s motivation in becoming interested in a particular religion. It did not ask itself the right questions, which were whether the Applicant could expect to face persecution on his return to Lebanon because of his interest in the JW faith and his consequent rejection of Islam. Instead, it transposed the critical question of whether the Applicant had a sufficiently sophisticated understanding of the JW dogma to be considered a genuine convert. Mr Jones referred the Court to the decision in Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 per Wilcox J at [10].
Mr Jones states that the evidence before the Tribunal was that the Applicant had less than full secondary school education (CB 19) and had worked as a waiter and trainee hairdresser (CB 20). He expressed his interest in the religion as being based on his perception of it being non violent, honest and loving, which he presumably found more attractive than the fundamentalist Islam of his immediate family. The Tribunal’s entire strategy of questioning, however, was premised on what it considered to be the important feature of religion, such as its somewhat complex attitude towards life after death. The Tribunal’s assessment on whether the Applicant was credible was therefore based on a misunderstanding of what the Applicant’s claims really were.
Ms Mitchelmore submits that contrary to the Applicant’s submissions, the Applicant’s fear of persecution in his home country was not based on him being perceived as an Apostate from Islam, but rather was put on the basis of his conversion to the JW faith. To the extent that claim raised a further claim to fear harm by reason of his conversion from Islam, the latter was considered. It was submitted that the Tribunal found that the Applicant would not have a well founded fear of persecution on his return to Lebanon on the basis that he did not hold, nor had he ever held, any genuine interest in converting from Islam to the JW faith. Accordingly, it did not accept that there was “a real chance that his father, uncle or any other Islamic follower or fanatic in Lebanon will seek to harm him in relation to his religion (real or perceived)” (CB 188 at [82]).
Ms Mitchelmore submits that the Tribunal’s findings in para.[82] indicate that it turned its mind specifically to the question of whether the Applicant faced any real or imputed harm for reason of his religion and whether this related to Islam, to the JW faith or any conversion formed. The Tribunal found that he did not. In circumstances where the Tribunal considered whether the Applicant had a well founded fear of persecution on the basis of his belief in JW (which would make an apostate), but also on the basis that he might be perceived to hold the belief (and hence to have converted from Islam), the Applicant’s contention that the Tribunal did not consider the possibility that he may be perceived as having been an apostate is without foundation.
Ms Mitchelmore submits that when the Tribunal reached its conclusion that the Applicant was not a credible witness, the Tribunal did not “impose on the Applicant’s claim a mechanistic and overly intellectual interpretation of a person’s motivation in becoming interested in a particular religion” (Mr Jones’ submissions at [12]). Rather, it rejected the Applicant as a credible witness after considering the evidence before it, including, inter alia his poor level of particular tenants of JW that it considered a new adherent would know. When questioning the Applicant on the subject, the Tribunal relied on a number of sources which it identified in its decision record, including the official website of JW and textbooks written on the faith.
Mr Jones made detailed oral submissions identifying issues that the Applicant found attractive about the religion. Where the Tribunal addressed its reasoning as to the technical details of his understanding of the dogma, it misunderstood why the Applicant was attracted to the religion. Properly put, the Applicant’s fear is that if the reasons for the attraction are found out, he will suffer persecution for it. Mr Jones argues that these circumstances are essentially the same as the situation in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 at [87]-[88] which states:
[87] This Court has repeatedly held that, for the issue of prohibition or mandamus under s75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief61. Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude62, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an Applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
[88] Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an Applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.
61 Plaintiff S157/2002 v Commonwealth (2003) 72 ALD 1 at 24 ; 195 ALR 24 at 47 ; 77 ALJR 454 at 471 [83].
62 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 227–8 [82]–[83] ; 174 ALR 585 at 609–10; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 136–7 [147]–[149] ; 62 ALD 285 at 325 ; 176 ALR 219 at 259–60; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1 at 46 [175] ; 76 ALJR 694 at 727
Mr Jones contends that in Dranichnikov v Minister for Immigration & Multicultural Affairs (supra), Mr Dranichnikov claimed to be a particular type of business person and the Tribunal had considered the case on the basis of a too widely defined particular social group. In Dranichnikov the delegate characterised the claim as that of a “businessman” who participated in organised protest gatherings and meetings, which involved criticising the work of the policing authorities. The delegate recorded the stabbing attack on the Applicant, the lack of interest of the authorities and the Applicant’s feeling that the attack was caused by him speaking out against the authorities. The delegate considered the Applicant’s case in the context of the Convention category of “membership of a particular social group”. The delegate identified the social group in question as “entrepreneurs” and expanded this class, noting that businessmen in Russia were at risk from criminal organisations with links to the authorities.
The delegate recorded the Applicant’s belief that his profile had been raised because he organised anti criminal meetings and spoke out in public against the authorities in ability to defeat crime. However in the delegate’s decision, it described the basis for the Applicant’s fear which as facing deferential harm as a businessman and proceeded to dismiss the application.
Mr Dranichnokov applied to the Tribunal seeking a review of the delegate’s decision by the Tribunal. In support of this application, he called on his migration agent, a solicitor, to write to the Registrar of the Tribunal clarifying his claim for protection. In this letter, the agent emphasised the importance of attributing weight to Mr Dranichnokov’s protest activities which raised his profile within the community Vladivostok. The letter also noted that the threats to him and his family can in part be attributed to his involvement in these activities. In his evidence before the Tribunal, Mr Dranichnokov asserted and elaborated on these aspects of his claim by describing how he had joined in an attempt to act on the problem of attacks on businessmen, evidenced by the attack on him.
The Tribunal accepted that Mr Dranichnokov and his wife were credible witnesses but misstated the social group that was relied on by the Applicant. The Tribunal approached the issue as describing the social group as “businessmen in Russia and went on to affirm the delegate’s decision not to grant the Applicant a Protection visa”.
In the joint judgment of Dranichnokov their Honours Gummow and Callinan JJ with whom Hayne J agreed at [24] stated:
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnokov natural justice.
Their Honours further stated at [26]-[27]:
[26] At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an Applicant claims to belong is capable of constituting a social group for the purposes of the Convention.2 That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the Applicant is a member of that class. There then follow the questions whether the Applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
[27] The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
2 Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 defines a refugee as a person who:
“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The application for judicial review of the Tribunal’s decision was heard in the Federal Court at first by a primary judge and subsequently by the Full Court. At both levels, the Applicant failed. As Mr Dranichnokov was a self represented litigant, he proceeded on a complaint which was held to be an impermissible attempt on the part of the Applicant to impeach the Tribunal’s decision for an error of fact and did not promote the issues that were ultimately argued before the High Court. In the special leave application before the High Court, the claim was that the Tribunal and the Federal Court had misunderstood and misstated the Applicant’s case grounded in the Convention.
Mr Jones relies on the authority in Dranichnokov, that the Tribunal asked the wrong question for the Applicant’s fear of persecution. The argument advanced by Mr Jones is that the Tribunal did not ask itself the right question which should have been whether the Applicant could expect to face persecution on return to Lebanon because of his interest in the JW faith and his constant rejection of Islam. Rather the Tribunal “transported the critical question of “whether the Applicant had a sufficiently sophisticated understanding of JW dogma to be considered a genuine convert”.
In SZNVE v Minister for Immigration & Citizenship [2010] FCA 251 His Honour Logan J at [23] states:
[23] Both before and after the High Court’s decision in Dranichnikov the Full Court of this court has held that the tribunal will commit a jurisdictional error if it has failed to address the claim for a protection visa which has been put forward by the visa Applicant in the material before the tribunal, providing that claim is one which emerges clearly on that material: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ; [2001] FCA 1802 at [13]–[14] per
114 ALD 247 at 253
Merkel J; at [41]–[42] per Allsop J; at [1] per Spender J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ; 219 ALR 27 ; [2004] FCAFC 263 at [68].
[24] These authorities acknowledge that the definition of refugee, though a compound concept, consists of a number of elements. If the minister or the tribunal is not satisfied as to even one of these elements, that would form a lawful basis upon which not to be satisfied that the visa Applicant was a person to whom Australia owed a protection obligation for the purposes of the Migration Act. Thus, for example, if the fear of persecution results from the application to the visa Applicant of a law of general application and there is no discrimination there can no be persecution and hence a claim must fail: see Minister for Immigration and Multicultural Affairs v Iraselian (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. This though assumes that the administrative decision maker, be that person the minister, a delegate or the tribunal, has assessed the claim as made.
The application in Dranichnokov was distinguished in SVTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 104 per Marshall, Mansfield and Stone JJ at [27]-[28] where their Honours state:
[27] The third ground of appeal was that the Tribunal constructively failed to exercise its jurisdiction in relation to a particular claim of the appellant that she feared being kidnapped for trafficking or sexual exploitation, or as an organ donor. Counsel contended that she had made a clearly articulated claim to that effect, which the Tribunal had not addressed, so that the Tribunal had failed to exercise jurisdiction: see Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 (Dranichnikov).
[28] It is sufficient to observe that, in our view, the Tribunal recognised the appellant’s claim and rejected it because it found there is not a real chance of her being kidnapped because of her membership of the particular social group for sexual exploitation or in order to harvest her organs. The Tribunal’s reasons for that conclusion are summarised in [9] above. Unlike Dranichnikov, the Tribunal accurately understood the appellant’s claimed fear, and addressed it. Counsel for the appellant argued that its reasons for rejecting that claim demonstrate that it did not accurately understand it, and so did not address it. We do not agree. Although its reasons refer to trafficking, rather than to kidnapping, it is obvious that the Tribunal understood that the appellant feared being kidnapped for trafficking for one of those two purposes. It referred to the country information about the practice of trafficking for those purposes in Albania, including common reasons for that conduct being engaged in. It concluded that in the appellant’s circumstances she did not fall within those persons who are vulnerable to kidnapping for being trafficked for those common reasons. That does not lead to the view that the Tribunal did not understand, or address, her complaint. In our view it correctly understood and addressed her complaint, and its finding that there is no real chance of her being kidnapped and trafficked because she is a single woman in Albania without male protection, or because she is a member of that particular social group, was a finding available to the Tribunal.
This brings this Court to the question of whether the genuine interest in the JW faith can be isolated into two separate components, those being:
a)an intellectual knowledge of the doctrine and dogma; or
b)the philosophical interest in the absence of specific knowledge of the doctrine.
In the original visa application, which was prepared by the Applicant’s migration agent / solicitor, at question 41 states:
Why did you leave that country?
I left Lebanon in order to come to Australia where I can safely practice my faith (Jehovahs witness). In May last year I was introduced to the Jehovahs witness faith by a person who is a devout Jehovahs witness. He preached to me however due to the fact that I was born a Muslim and had come from a very conservative religious background I feared pursuing my new faith in a meaningful way.
I maintain my interest in Jehovahs witness faith and I receive limited bible studies. All bible studies were provided in secret. I did not reveal to my family that I was taking bible studies because they would react extremely violently to this news.
Jehovahs witnesses are viewed not as a faith but as a political organisation.
It is extremely dangerous for me to overtly practise my new faith because as a convert by blood is considered Halal. My family will harm because I would be considered to have brought much shame upon the family.
I have come to Australia in order to further pursue my conversion to the Jehovahs witness faith without fear of being harmed by my family or any other fundamental Muslim.
(CB 21)
At question 42:
What do you fear may happen to you if you go back to that country?
I fear that my family will seriously harm me if they were to discover that I am a Jehovahs witness. I am very keen on pursuing my new faith and aim to be baptised. I am also very keen to practice my faith in a manner which is required by the Bible including preaching and attending prayer group meetings. In Lebanon my adherence to my new faith will remain extremely limited due to the danger that is associated with being a Jehovahs witness.
I cannot rely on the protection of the Lebanese authorities as they too are hostile due to the Jehovahs witness and also because they are loath to intervene in matters involving religious disputes or restoration of family honour.
My ability to practise my faith will remain extremely limited in Lebanon and I could not hope to overtly practise core tenants of my faith as required by our teachings.
(CB 22)
An integral element of the Applicant’s visa application claim, centres on the adherence to the JW faith and I am not satisfied that I can accept Mr Jones’ invitation that the issue of an intellectual interpretation and understanding can be separated from the adoption of the ritual or dogma. The way in which a substantial part of the general population identify and distinguish between the various faiths is by the manifestation of the ritual or dogma associated with different faiths. Even the scholars that are associated with various faiths are focused on the esoteric aspect of the ritual followed by their particular faith which in many cases is dogma followed for centuries without foundation or logical reason. On Mr Jones’ submission, his client does not possess the educational or intellectual ability to address his conversion in these terms. In the visa application, the Applicant states that one of his serious concerns was the limits on him practising the faith in accordance with its core tenants. This claim indicates a sufficient understanding of the faith that needs to be pursued by its adherence. There is no denial in respect to the Applicant’s level of education. However, his exposure to a JW devotee provided him with a sufficient understanding of the doctrine that needs to be followed to achieve the benefits of adherence.
The other significant element of the Applicant’s claim is his identification as an apostate of Islam. If his level of interest and involvement is restricted to a deep admiration of the adherent of the JW faith, he would not be required to denounce his Islamic faith. However, he states his desire to obtain sufficient education in the JW faith so that he can seek baptism. This indicates that the Applicant has a sufficient intellectual involvement, which indicates he is aware of the consequences of pursuing this objective and denouncing his Islamic faith. In these circumstances, the authorities indicate that the Tribunal is entitled to assess the Applicant’s knowledge about his alleged faith.
Ms Mitchelmore submits that assessing the Applicant’s knowledge about his alleged faith does not provide a basis for asserting that the Tribunal fell into jurisdictional error. This was identified in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 at [38] per Kenny J where Her Honour stated:
As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an Applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the Applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
I am not satisfied that the Tribunal erred by transposing the critical question in assessing the Applicant’s intellectual understanding of the essential core tenants of the faith are. Further, I believe that this issue is an invitation to the Court to pursue an impermissible attempt to review the merits of the Tribunal’s finding on the issue of the Applicant’s conversion, real or perceived to the JW faith.
Ground two
Mr Jones submits that during the course of the hearing, the Tribunal questioned the Applicant about his reasons for not attending an interview with an immigration officer before the delegate’s decision was made (T 21.7-22.11). The evidence before the Tribunal was that the Applicant was at all relevant times represented by a legal practitioner (CB 1), and that the interview was cancelled by that legal practitioner on the instructions from the Applicant (CB 42). The Tribunal was on notice that the Applicant had discussed attending the interview with his solicitor. It did not advise the Applicant that he was entitled to legal professional privilege in respect of his communications with his legal representative as was obliged to do: SZHWY v Minister for Immigration & Citizenship [2007] FCAFC 64 per Lander J at [75]-[77] and Rares J at [159].
His Honour Lander J at [44] states:
[44] There is nothing in Div 6 which would suggest that a person appearing or giving evidence in the Tribunal is not entitled to claim the benefits of the privileges to which I have referred. There can be no reason why a communication between an Applicant for a protection visa and his or her solicitor should not be privileged in any proceedings relating to a claim for protection under the Convention, the Protocol and the Act. The purposes underlying the reason for legal professional privilege would be best served by recognising that such a communication is privileged where an administrative decision maker is conducting an inquiry into a claim for a protection visa. It does not matter that the hearing is inquisitorial rather than adversarial. Nor does it matter that the hearing is being conducted by an administrative decision maker. Communications between an Applicant for a protection visa and the Applicant’s legal advisers for the dominant purpose of obtaining legal advice or for the use in existing or reasonably contemplated proceedings before the Tribunal are privileged.
His Honour then addresses the issue of reviewable error as follows:
[73] It is in those circumstances that this Court is called upon to consider whether the Tribunal made a reviewable error in its review of the decision of the delegate of the Minister. The Tribunal’s decision will be reviewable, notwithstanding the provisions of s 474, if it involved jurisdictional error. A decision must not involve a failure to exercise jurisdiction or be made in excess of jurisdiction. In Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at 506:
Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.
(Footnotes omitted.)
[74] A decision maker who exceeds the authority or power given by the Act under which the decision maker is empowered to act commits jurisdictional error.
[75] In my opinion, the Tribunal was under an obligation to advise the appellant that he was entitled to refuse the questions which the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal.
[76] That obligation arises because the Tribunal, like any other administrative decision maker, is not entitled to exercise a power to destroy a freedom of communication which the law seeks to protect: Baker v Campbell per Dawson J at 131. The Tribunal was in the same position as an administrative decision maker who has the power to require documents to be produced. The decision maker should not exercise the power to require a party to produce documents which are subject to legal professional privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 537; Arno v Forsyth (1986) 9 FCR 576. A decision maker should not purport to exercise a power to require a person to answer a question which the law would excuse that person from answering.
[77] In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.
His Honour Rares J at [163] supports this view.
[163] By exceeding its powers in asking and pursuing questions to elicit the content of the appellant’s conversation with his solicitor which was the subject of legal professional privilege, the tribunal committed a jurisdictional error. It failed to give the appellant a hearing according to law (cf: Coco (1994) 179 CLR 427; Ousley v R (1997) 192 CLR 69 at 101 where McHugh J said that the issue of the warrant in the former case was a jurisdictional error; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 183–185 [79]–[84] per McHugh J, 203 [174] per Kirby J, 212 [211] per Hayne J; SZBEL 231 ALR at 598 [25]).
Mr Jones then referred the Court to the transcript of the Tribunal hearing to the following sequence of questioning that appears at page 21.
Tribunal member: As I indicated to you earlier, there is some information that I would like to formally put to you that I have from the Departmental file that could form the reason or part of the reason for affirming the Department’s decision. I also explained to you why the information is relevant to my decision. Please tell me if you don’t understand the information or if you don’t understand why it’s relevant. You don’t have to respond straight away. You can ask for more time to comment or to respond to the information. I’ll just take you through the information before you respond:
The information is that you were invited to appear at a Departmental interview scheduled on 11 November 2009 at 2.30pm; however, on the afternoon of the interview, your authorised recipient emailed the Department to say that you would not be attending and that you were asking to have a decision just made on the papers before the Department. That information is relevant because it indicates that you forewent an opportunity to appear before the Tribunal to explain your claims to be a refugee. That gives some cause of doubt about the generalness of your claim given that you didn’t take the opportunity when it was presented to you to argue your case before the department. Just for a moment. That could form the reason or part of the reasons for affirming the decision of the Department. Do you want to comment or respond to that information now, or would you like more time to do so?
Interpreter: I can respond now or later; it doesn’t matter.
Tribunal member: OK. Well, the choice is yours.
Interpreter: I will respond now.
Tribunal member: OK.
Interpreter: I was sick on the day; I couldn’t walk or talk. That’s why I sent the email to say that – I contacted them to say that I couldn’t attend because I was sick. I wanted to come, but because I was sick, I could not come.
Tribunal member: Did you see a doctor?
Interpreter: I did not see a doctor. My sister suggested I might – I will be able to see a doctor if I wanted to, but she gave me some medication and I got better.
Tribunal member: I have some difficulty accepting that you were so sick that you couldn’t walk or talk so as to attend your Departmental interview and yet you didn’t go and see a doctor and was cured by some medicine given by your sister. Would you like to comment on that?
Interpreter: I had tonsillitis, and I couldn’t talk and that’s why I didn’t come. How I’m going to come to the interview if I couldn’t talk and I was feeling a chill all over me?
Tribunal member: Well, then why did you not ask to have the interview postponed?
Interpreter: I told the lawyer that I was sick and that I didn’t know what he did. He probably postponed it.
Mr Jones then referred the Court to an email transmission from Firmstone & Associates forwarded on 11 November 2009 at 10.42 am regarding “[SZOGO] – Invitation to Interview”. The body of the transmission states:
You refer to the above matter and are instructed to advise that a client wishes to have a decision made on the papers before the Department and accordingly does not wish to attend an interview. We apologise for the inconvenience
Regards
Sam Issa
Mr Jones advances the argument that the Departmental file that was before the Tribunal clearly indicated that the Applicant was represented by Firmstone & Associates and that the principle of that firm was Mr Sam Issa, solicitor. Mr Jones submits that the Tribunal was on notice that this person that is referred to as the authorised recipient is in fact a solicitor. The Tribunal, in referring to that email, makes it clear that it was also aware that the email referred to instructions that the solicitor had received from his client concerning attending the interview. Mr Jones argues that what is involved is a communication between the Applicant and his solicitor in relation to a matter that brought it within the meaning of the legal professional privilege or the coverage of legal professional privilege. The consequence of this is that this is something that the Tribunal was not permitted to question the Applicant about, at least not without warning the Applicant that legal professional privilege entitled him not to answer and there was no such warning given.
Mr Jones submits the fact that the Tribunal failed in its obligation to warn the Applicant that he need not divulge the content of any communication between himself and the solicitor amounted to jurisdictional error regardless of whether or not the information concerning was material to the final outcome of the case: SZHWY v MIAC (supra) per Lander J at [79]-[82]. In any event in this case the Tribunal did consider that information given by the Applicant and his answer was relevant to the findings on credibility (CB 117 at [78]).
Ms Mitchelmore submits that legal professional privilege extends to confidential communications between a client and his or her lawyer made in the context of a lawyer – client relationship for the dominant purpose of obtaining or giving legal advice, or to prepare or conduct existing or reasonably anticipated litigation: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J at [40]-[42] and per Stone J at [103]-[106]; Wheeler v Le Marchant (1881) 17 Ch D 675.
Ms Mitchelmore submits that the Tribunal’s questioning of the Applicant in relation to his failure to attend the Departmental interview did not encroach upon any area where the Applicant might have been entitled to claim legal professional privilege. The situation can be contrasted with the exchange that arose in SZHWY, where the majority held that the Tribunal was required to put the Applicant on notice of his ability to make a claim of privilege in relation to the contents of privilege in communications with a lawyer. In that case, the Tribunal asked the Applicant direct questions about what he told a solicitor about his substantive visa claim and what the solicitor advised him to do in response: SZHWY (supra) per Lander J at [8].
Ms Mitchelmore submits that in this case, the Applicant’s response to the Tribunal’s concern about his failure to attend the Departmental interview was that he was sick. The mere fact that he had told his lawyer he was sick did not make this a privileged communication. Nor did his statement to the Tribunal that he had told the lawyer he was sick divulge a confidential communication between the Applicant and his lawyer, for the dominant purpose of receiving legal advice or for the use by his solicitor in existing or reasonably contemplated Tribunal proceedings. After the Applicant mentioned his lawyer, the Tribunal asked no further questions on the subject of his non attendance at the interview.
Ms Mitchelmore submits that the Tribunal was entitled to raise its concern that the Applicant did not attend the departmental interview with him, and to question him about his answers, without putting him on notice as to his entitlement for a claim legal professional privilege.
Observations re ground two
On the material before the Court, I am satisfied that the Tribunal was not in any way seeking to elicit from the Applicant any discussion that he had between himself and his registered migration agent, who was also a solicitor. The material reproduced above is clear that what the Tribunal was asking the Applicant to comment on was why he did not go to the hearing before the delegate. The fact that his intention was not to attend the hearing was communicated by his solicitor, does not give rise to any need to provide the Applicant with a warning as to the operation of legal professional privilege before answering the question when all the Tribunal is asking is why the Applicant did not attend. The questions and answers that were subsequently given were that the Applicant was sick and claimed that he could not walk or talk and that is why the email was forwarded to the Department. The email which is reproduced above makes no reference to his illness but was disclosed to the Tribunal member because he was sick.
In Australia, legal professional privilege is a rule of substantive law that reflects important common law immunity. In Daniels Corporations International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [9] – [11]:
[9] It is now settled that legal professional privilege is a rule of substantive law10 which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation11 in place of the "sole purpose" test which had been applied following the decision in Grant v Downs12.
[10] Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection13 and the giving of evidence in judicial proceedings14. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s155 of the Act provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s10 of the Crimes Act 1914 (Cth)15.
[11] Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan16, was the foundation for the decision in Baker v Campbell17. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane18. Cases in which it has since been applied include Bropho v Western Australia19, Coco v The Queen20 and Commissioner of Australian Federal Police v Propend Finance Pty Ltd21. The possible exception to the strict application of that rule was the decision in Yuill22.
His Honour McHugh J said at [44]:
[44] Australian courts have classified legal professional privilege as a fundamental right or immunity70. Accordingly, they hold that a legislature will be taken to have abolished the privilege only when the legislative provision has done so expressly or by necessary implication71. Legal professional privilege describes a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters made between a lawyer and client or between a lawyer and a third party for the benefit of a client72. The immunity also protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of a client, such as research memoranda73. The immunity embodies a substantive legal right. Its operation is not limited to judicial or quasi-judicial proceedings74. Where it applies, it may be used to refuse to produce documents that are the subject of a search warrant authorised by statute75 or other extra-curial process as well as a subpoena issued under or discovery required by rules of court76.
In Pratt Holdings v Cmr of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; BC200402621, Finn J noted at [12]–[13] that:
In the ordinary course of modern life it is commonplace for a person (natural or corporate) to have confidential communications with a professional adviser or advisers for the purposes of conducting that person’s affairs. Whatever the significance that person may attribute to a particular communication so made, such communications are not ordinarily protected from disclosure in legal proceedings or from an authority exercising coercive powers requiring production of information to it. The exceptional case is the communication made with the dominant purpose of giving or obtaining legal advice.
In the transcript of the hearing at p.22, line 10 with the interpreter responding to the Tribunal member stating:
I told a lawyer that I am sick and I don’t know what he did. He probably postponed it.
At that stage, the Tribunal member did not pursue any further questions in respect of what was said between the Applicant and his solicitor. The Tribunal member then pursued a new course of questions on a new subject. I have formed the view that nothing in that response or that course of questioning would give rise to a claim for legal professional privilege. This was a general question as to why the Applicant did not attend and the subject was not of a nature that falls within the decision of SZHWY (supra). I note that the Applicant’s agent was in attendance at the hearing and would have been in a position to make a claim on his behalf to preserve his client’s interest. The circumstances disclosed by the transcript reproduced above, indicate that these circumstances are not one where a warning was required because unlike SZHWY where the Tribunal was directly asking the Applicant what happened, whether he went and saw his solicitor, what the solicitor told him and what the solicitor advised him to do clearly placed that sequence of questioning that may disclose a legal professional privilege communication. However, I am satisfied that has not occurred in the matter before this Court and there would be no requirement for the Tribunal to give a warning. I am satisfied that the second ground cannot be sustained and should be dismissed.
Conclusion
I am satisfied that neither of the grounds in the amended application can be sustained and the application should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 7 February 2011
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