SZRSB v Minister for Immigration - [2013] FCCA 129

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSB v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 129

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – where information provided by applicant at arrival interview – whether information provided was information to which provisions of ss.424A and 424AA of the Migration Act 1958 (Cth) apply – whether Tribunal fell into jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190
SAAP v Minister for Immigration & Anor (2005) 228 CLR 294
SZOSE v Minister for Immigration & Anor [2011] FMCA 640
SZLFX v Minister for Immigration & Anor (2009) 238 CLR 507

Applicant:

SZRSB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1703 of 2012

Judgment of:

Judge Raphael

Hearing date:

17 April 2013

Date of Last Submission:

17 April 2013

Delivered at:

Sydney

Delivered on:

24 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Kah Lawyers

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Minter Ellison

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1703 of 2012

SZRSB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This case involves a consideration of whether certain answers given by an applicant at what is known as an “arrival interview” should properly have been treated by the Refugee Review Tribunal as information to which the provisions of s.424A and/or 424AA of the Migration Act 1958, (Cth)[1] apply and that if one or other or both of those sections did apply then whether the Tribunal fell into jurisdictional error by not complying with it.
[1] “Act”
The applicant is an Hazara born in Afghanistan who moved into Pakistan at the age of about eight. He left Pakistan to live and work in other countries, most particularly, Austria where he made an unsuccessful application for asylum. Upon arrival in Australia he made a claim to be a person to whom this country owed protection obligations on a number of grounds, the only relevant one for the purposes of these proceedings was a fear that he would be targeted by members of the “R” family as a result of a feud between them and his family instigated by his sister and his father resiling from an arrangement for his sister to marry a member of the “R” family. It is in this context that the statements were made.
The case made on behalf of the applicant is best understood through the grounds of the Further Amended Application filed with the court on 17 April 2013. Those grounds are:
“1. The Tribunal acted in breach of section 424A(1) of the Migration Act.
Particulars
(a)Failure to give to the applicant, in the manner required by either ss.424AA(b) or 424A(2) of the Migration Act, clear particulars of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 129
Decision Date: 24 April 2013

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Refugee Review Tribunal. The applicant, SZRSB, contended that the Tribunal had fallen into jurisdictional error by failing to properly consider information provided by him at his arrival interview, specifically in relation to sections 424A and 424AA of the *Migration Act 1958* (Cth).

The central legal issue before the court was whether certain information provided by the applicant, particularly concerning his father being shot by Al Qaeda, constituted "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" within the meaning of section 424A of the *Migration Act*. The applicant argued that this information was factual, relevant to his claims, and was used by the Tribunal as a reason to affirm its decision, thereby undermining his credibility.

The court considered the principles established in *SZBYR v Minister for Immigration & Anor* [2007] 81 ALJR 1190, which clarified that section 424A applies to evidentiary material or documentation, not to the Tribunal's internal thought processes or the existence of doubts. The court noted that the applicant accepted this distinction. The applicant's argument was that the information about his father was a factual assertion, not a mere inconsistency, and that the Tribunal treated it as a deliberate falsehood that went to the veracity of his entire claim. The court was required to determine if this information, as used by the Tribunal, met the criteria for section 424A, considering the exclusions provided in subsection (3).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant accepts that for this information to be susceptible to the provisions of s.424A it must refer to evidentiary material or documentation and not to the Tribunal’s thought processes or the existence of doubts, inconsistencies or the absence of evidence; SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190[2] at [18]. He also accepts what fell from the court at [17]:“[17]Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.” [Emphasis added]And in particular the words found in bold in the extract above.[2] “SZYBR” The applicant argues that the response to the question that his father had been shot by Al Queda was both part of the reason to affirm the decision under review and amounted to an undermining of his claims to be a person to whom Australia owed protection obligations. The argument is put in the helpful written submissions of Mr Karp in the following way:“[22]These are alleged assertions of fact relevant to matters in issue in the review. Each therefore constituted information within the meaning of s.424A (see e.g. SZYBR v Minister for Immigration (2007) 81 ALJR 1190, 1196 at [18]). The Tribunal at CB 407 [160] did not consider these matters to be simple inconsistencies, but rather deliberate falsehoods which went to the veracity of his claims as a whole. This information was clearly utilised as part of the reason for affirming the decision under review within the meaning of s.424A of the Migration Act. It was specifically about other people, identified as individuals, so does not come within the exclusion in s.424A(3)(a). Nor was it given for the purposes of the review, and so does not come within the exclusion in s.424A(3)(b)). It was provided orally by the applicant to the Department, and so does not come within the exclusion in s.424A(3)(ba). And it was not non disclosable information within s.424A(3)(c).”