SZRSB v Minister for Immigration
[2013] FCCA 129
•24 April 2013
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 information he gave at an airport interview to the effect that his father was shot outside a mosque by “Al Qaeda people”
(b)Failure to ensure, as far as was reasonably practicable, that the applicant understood why information that he gave at the airport interview, to the effect that his father was shot outside a mosque by “Al Qaeda people”, was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review;
(c)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 information he gave at an airport interview to the effect that his grandfather had promised his sister to the grandson of a friend.
(d)Failure to ensure, as far as was reasonably practicable, that the applicant understood why information that he gave at the airport interview, to the effect that his grandfather had promised his sister to the grandson of a friend, was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.”
During the course of the hearing the applicant withdrew the grounds 1(c) and 1(d).
Section 424A of the Act is in the following form:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.”
Section 424AA of the Act is in the following form:
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant 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) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
The “information” which the applicant is alleged to have given is found at [CB 4] being the written up airport entry interview. In response to the question:
“Why did you come to Australia”
The applicant says relevantly:
“[M]y father was sitting with his friends outside a Mosque and Al-Queda people came and started shotting and my father got shot in the stomach. He was operated and got better but later he started complaining and doctors suggested another operation, but he died during his 2nd operation.”
Because that statement was given by the applicant orally to the department it forms an exception to the exception found in sub-s.424A(3) by virtue of sub-s.424A(3)(ba). The question the court has to decide is whether the statement constituted information that the Tribunal considered that the reason or a part of the reason for affirming the decision that was under review.
The Tribunal questioned the applicant at [T40]:
“Member:At the interview at the airport you claim that your father was shot by Al-Queda people.
Applicant:No I didn’t say that because I’ve got some documents, evidence it shows about the death of my father.”
The Tribunal dealt with the matter in its Findings and Reasons at [158 CB 406]:
“His account of the death of his father is a confused and uncertain one, even making allowance for the fact that he was not present at the time. In his arrival interview he said his father was shot outside a mosque in Pakistan by “Al Qaeda people’ and that he died some time later after an operation. In his protection visa application he claims to be unsure who was responsible for the shooting, which occurred outside a mosque and which killed many innocent people. In his Departmental interview he said his father was shot by Wahabis in an incident outside a mosque, and that ‘these people’ concerned with his sister’s marriage were responsible. He repeats this claim in the submission of 16 January 2012. At the Tribunal hearing on 23 January 2012 he claimed the shooting was carried out by an un-named Hazara from his tribe and that nobody knew if this person was acting on the orders of the “R” family. He denied having claimed in his arrival that it was carried out by Al Queda people. Having considered this information I am prepared to accept, on the basis of the medical and hospital documents submitted by the Applicant, that his father died in 2011 from complications following a gunshot wound. However, given the marked inconsistencies evidence in the various statements the Applicant has made about the incident I am unable to be satisfied that his father was shot as a result of specific targeting by members of the ‘R’ family or anyone else.”
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).”
Mr Karp claims support for his argument from the decision of the High Court in SAAP v Minister for Immigration & Anor (2005) 228 CLR 294[3] and a decision of Federal Magistrate Barnes, as she then was, in SZOSE v Minister for Immigration & Anor [2011] FMCA 640[4] where at [119] and [121] her Honour opined:
“[119]As counsel for the applicant acknowledged, there is clear authority to the effect that inconsistencies in an applicant’s evidence do not have to be put to the applicant pursuant to s.424A of the Act (see SZBYR). However in SZBYR the asserted “information” consisted of the content of the applicant’s own statutory declaration which, as the High Court stated at [17], may have been thought to have been a reason for rejecting rather than affirming the decision under review. In other words, what was in issue in SZBYR was an inconsistency between the applicant’s oral evidence and his written claims, not a discrepancy between something somebody else had said and that of the applicant.
[121]While the Tribunal reasons in this case were expressed in terms of concern about inconsistencies between the evidence of the applicant and his daughter, the daughter’s oral evidence was “information” in the sense considered in SAAP and can be distinguished from the notion of a mere inconsistency in the applicant’s own evidence as considered in SZBYR. The Tribunal obtained information from the oral evidence of the applicant’s daughter about religious activities in China given after his evidence on the same issue. “
But there was an important difference between both of those cases and the instant one and SZBYR. In each of those cases the information was constituted by statements given by witnesses that contradicted the evidence of the applicant. In the instant case and in SZBYR the impugned information was given by the applicant. In both SAAP and SZOSE the court found that the information was the reason or part of the reason for the decision of the Tribunal whereas in SZBYR it did not. It now seems clear from the High Court’s decision in SZLFX v Minister for Immigration & Anor (2009) 238 CLR 507[5] at [24 – 26] that the court can be assisted in its investigation of whether the Tribunal considered that the information would be the reason or part of the reason for affirming the decision by considering its reasons. In that case the High Court concluded:
“The RRT’s reasons show that what counted against the first respondent were internal inconsistencies in his evidence.”
[3] “SAAP”
[4] “SZOSE”
[5] “SZLFX”
The extracted finding from [CB 406] commences with the statement at [158] [CB 404]:
“[158]The Applicant’s account of this aspect of his claims is marked by considerable vagueness and inconsistency.”
There are several dot points of which the extracted is the final one.
At [161] [CB 407]:
“[161]Taking these concerns together I am unable to be satisfied as to the credibility of the Applicant’s claims to fear harm in Afghanistan because of a blood feud directed against his family. I am not satisfied that his sister was, in fact, promised in marriage to a member of a family named “R” when she was young. I am not satisfied that the marriage was called off or that the “R” family have targeted the Applicant’s family in consequence. I do not accept that this family disrupted the Applicant’s sister’s wedding ceremony, that it was responsible for the death of the Applicant’s father or that it threatened to kill the Applicant. Nor do I accept that a blood feud exists between this family and that of the Applicant or that he is at risk of harm for such a reason. This being the case I am not satisfied that he Applicant is a member of either of the two particular social groups claimed, or that there is a real chance he would suffer serious harm in Afghanistan for such a reason.”
If one looks at the reasons in the instant case one can see that the reasoning in SZLFX applies. It was not the fact that the applicant’s father was shot by Al Queda that caused, at least in part, the Tribunal to come to the conclusion it did that he was not a person to whom this country owed protection obligations, it was the fact that his evidence was inconsistent and the existence of inconsistencies are not matters that need to be put. For the sake of completeness I would note that the respondent argued that this information was not an undermining of his claims but I prefer the submission of Mr Karp on that point that it did undermine his claim for complementary protection on the grounds of a fear arising out of a blood feud. But in the circumstances this will not avail him.
Whilst the submissions were, as always, well put by Mr Karp, they have failed to convince me. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $6,646.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 24 April 2013
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