SZRZX v Minister for Immigration
[2013] FCCA 54
•16 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRZX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 54 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in Pakistan – applicants not believed in important respects – rejection of documents relied upon by the applicants – whether the Tribunal should have disclosed information about the doctor named in those documents considered. |
| Legislation: Migration Act 1958 (Cth), ss.424, 424A, 424AA |
| Cases cited: SZBYR v Minister for Immigration [2007] HCA 26; (2007) 96 ALD 1; (2007) 235 ALR 609; (2007) 81 ALJR 1190 Tin v Minister for Immigration [2000] FCA 1109 WAJW v Minister for Immigration [2004] FCAFC 330 |
| First Applicant: | SZRZX |
| Second Applicant: | SZRZY |
| Third Applicant: | SZRZW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2288 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 15 October 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2288 of 2012
| SZRZX |
First Applicant
SZRZY
Second Applicant
SZRZW
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 13 September 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, a father, his partner and their child. The third applicant is a minor and the first applicant is his litigation guardian. Any references in this judgment to “the applicant” are intended to be references to the first applicant.
In this case I have rejected a claim by the applicants that the Tribunal breached its statutory obligation to disclose adverse material to them, which the Tribunal obtained when checking the authenticity of documents they provided in support of their claims for protection.
The applicants are from Pakistan. The first applicant claimed to fear political persecution in that country. The second applicant (the partner of the first applicant) claimed to fear persecution in Pakistan as a member of a particular social group.
The following statement of background facts is derived from the submissions of the parties.
On 29 April 2011 the first and second applicants applied for protection visas [1].
[1] Court Book (CB) 1-76
On 21 July 2011 the third applicant was born and was included in his parents' application by operation of Migration Regulation 2.08[2].
[2] CB 124-127
On 19 December 2011 a delegate of the Minister refused the application for protection visas[3].
[3] CB 280-310
On 11 January 2012 the applicants applied to the Tribunal for review of the delegate's decision[4].
[4] CB 311-325
The Tribunal conducted a hearing with the first and second applicants on 8 August 2012[5].
[5] transcript filed with affidavit of Susan Archer on 4 January 2013
On 13 September 2012 the Tribunal affirmed the decision of the delegate[6].
[6] CB 388-423
The judicial review application
The applicants rely upon their judicial review application filed on 15 October 2012 which contains a single ground of review:
The Tribunal fell into jurisdictional error by failing to comply with s.424A or s.424AA of the Migration Act 1958.
Particulars
The Tribunal had before it information about a particular person, a Dr Nazir Bhatti, which it considered to be part of the reason for affirming the decision under review. The Tribunal was required to comply with the provisions of s.424A or 424AA in respect of that information, but it failed to do so.
I have before me as evidence the court book filed on 3 December 2012 and the affidavit of Susan Archer made on 27 November 2012 (filed on 4 January 2013) to which is annexed a transcript of the hearing conducted by the Tribunal on 8 August 2012.
The parties made written and oral submissions.
Consideration
The applicants’ submissions helpfully traverse the relevant legal principles. I adopt those submissions. The applicants rely on the sole ground that the Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth) (Migration Act), either in writing or through the alternative mechanism set out in s.424AA. Failure to comply with those obligations is, of itself, jurisdictional error.[7] It is not necessary to take into account any consideration as to whether there was an actual denial of procedural fairness.[8]
[7] SAAP v Minister for Immigration [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; 83 ALD 545; (2005) 215 ALR 162, per McHugh J at [77], Kirby J at [173], Hayne J at [208]
[8] SZEEU v Minister for Immigration [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 per Weinberg J at [182], Allsop J at [214]-[215]
The Tribunal is required to give clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review, either in writing, pursuant to s.424A, or orally at a hearing, pursuant to s.424AA. In either case, the Tribunal must 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 invite the applicant to comment on or respond to it. In the case of oral notification under s.424AA, the Tribunal must advise the applicant that he or she may seek additional time to comment on or respond to the information, and if the applicant seeks additional time, and the Tribunal considers that he or she reasonably needs such time, adjourn the review.
Information is knowledge that the Tribunal has received about relevant facts or circumstances,[9] as opposed to subjective appraisal or thought processes.[10]
[9] VAF v Minister for Immigration [2004] FCAFC 123; (2004) 206 ALR 471 at [24]; Tin v Minister for Immigration [2000] FCA 1109 at [54]; Paul v Minister for Immigration [2001] FCA 1196; (2001) 113 FCR 396; (2001) 64 ALD 289 at [95]; SZEEU at [205]
[10] SZBYR v Minister for Immigration [2007] HCA 26; (2007) 96 ALD 1; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [18]
In the case of a protection visa application, information that would be the reason or a part of the reason for affirming the decision under review is, at least, information that would amount to a rejection, denial or undermining of the applicant's claim to be a person to whom Australia owes protection obligations.[11]
[11] Ibid., at [17]
Certain information is excluded from the obligation by s.424A(3).
The information which the applicants in this case say should have been given to them in the prescribed way is the information referred to in the Tribunal's reasons at [99][12] relating to a certain Dr Nazir Bhatti and a hospital purportedly named after him. The applicants submit that the Tribunal considered that the information undermined the Applicants' credibility. The applicants contend that it was information that was specifically about another person, had not been given to the Tribunal or the Minister by the applicants, and was not “non-disclosable information” within the meaning of s.5 of the Migration Act. It was therefore not excluded by s.424A(3).
[12] CB 415
I accept that the Tribunal did not at any time give this information to the applicants in writing.
The transcript of the Tribunal hearing on 8 August 2012 shows that the Tribunal referred to information that it had about Dr Nazir Bhatti (spelled “Nasir Baki”) during the hearing[13], while only the first applicant was present.[14] The Tribunal did not, however, seek to ensure that the first applicant understood why the information about this person was relevant to the review (if indeed it was), or the consequences of it being relied on, and did not advise him that he might seek additional time to comment on or respond to the information.
[13] Transcript (T) 27.4 –28.24
[14] The second applicant was asked to leave the hearing room at T 9.36 and called back in at T 35.8
It should be noted that in this case claims to fear persecution had been made separately by both the first and second applicants. The information about Dr Bhatti was not given to the second applicant either orally or in writing.
In support of the protection visa application, the applicants submitted four “discharge slips” dated variously in the second half of 2010 from what was claimed to be the “Nazir Bhatti Memorial Hospital” and allegedly signed by a Dr Bhatti[15]. These documents were said to support the first applicant’s claims to have experienced violence in Pakistan[16].
[15] CB 141 to 144 and noting CB 141 and CB 144 appear to be the same slip
[16] CB 65 [12] and [13]
During the hearing, the Tribunal put to the first applicant for his comment the following two pieces of information:
a)the Tribunal had searched the internet without success for any reference to the alleged “Nazir Bhatti Memorial Hospital”; and,
b)while a Dr Bhatti could be found in those searches, he was connected to the Ayub Medical College in Abbottabad[17].
[17] CB 404 [56]
The Tribunal set out the results of the searches it had undertaken at [76][18].
[18] CB 409
After having rejected the first applicant’s credibility, the Tribunal then dealt with this issue as follows in its findings and reasons[19]:
[99] I have reached these conclusions having taken into account the four medical ‘discharge slips’ said to have been issued by the Nazir Bhatti Memorial Hospital in Abbottabad. As put to the first-named Applicant at the hearing, independent country information available to the Tribunal indicates that false or fraudulent documents are readily available in Pakistan and are often used to the purposes of visa fraud. As put to him, a search of the internet and the Tribunal’s country advice reports has produced no references to such a hospital in Abbottabad, although there are references to Dr Bhatti as a neurologist who teaches at the Ayub Medical College, attached to the Ayub Teaching Hospital, as well as to a range of other hospitals and clinics in Abbottabad. I find it implausible that if such a hospital, led by an established medical specialist and able to treat such presumably significant injuries as gunshot wounds, did in fact exist it would go completely unrecorded on the internet. The Applicant himself was unable to shed any light on the matter beyond stating that it was up to patients where they went and that the Nazir Bhatti Memorial Hospital was superior to the Ayub Teaching Hospital. He also suggested that I could contact the former, on the number contained in the ‘discharge slips’ to verify his claims but, as I explained to him, I do not accept that it would be possible in these circumstances to know who was answering the call.
[100] Taking these considerations together, I am not satisfied that any weight can be placed on the four documents as evidence that the Applicant, his mother or his nephew ever suffered harm in Pakistan. (emphasis added)
[19] CB 415
Notably, the Tribunal’s reasons turn on the non-existence of the Nazir Bhatti Memorial Hospital and are only expressed to result in the conclusion that the Tribunal would not accord the ‘discharge slips’ any weight. The applicants do not challenge the Tribunal’s use of the information about that alleged hospital. The applicants only allege that the information about Dr Bhatti was information “specifically” about another person.
I prefer the Minister’s submissions in relation to the issue of the compliance by the Tribunal with its disclosure obligations. As the Minister notes, in those submissions, the applicants face two apparently insurmountable difficulties in relation to the ground of review:
a)the mere fact that there was information about a Dr Bhatti who was a neurologist at the Ayub Teaching Hospital is, on its face, entirely neutral information in relation to the applicants’ claims and thus cannot be “information” to which s.424A(1) applies[20]. In other words, if the Tribunal’s searches had revealed that the Nazir Bhatti Memorial Hospital did exist, then the fact those searches conducted in 2012 also revealed that a Dr Bhatti was located at the Ayub Teaching Hospital could not undermine that in 2010 a Dr Bhatti may have been at the Nazir Bhatti Memorial Hospital; and
b)the only information which could possibly have been considered to undermine the applicants’ claims and thus fall within the ambit of s.424A(1) was the fact there is no record of any “Nazir Bhatti Memorial Hospital”. However even if this was “information” for the purpose of s.424A(1) (which is doubtful given the Tribunal’s finding only related to the weight to be accorded to allegedly corroborative evidence), such information clearly falls within the exemption in s.424(3)(a) of the Migration Act[21].
[20] SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26
[21] Minister for Immigration v NAMW (2004) 140 FCR 572 at [64]–[74] and at [112]–[138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [44]–[46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]–[30]; and VJAF v Minister for Immigration [2005] FCAFC 178 at [11]–[16].
The documents in issue before the Tribunal are reproduced at CB 141-144. As the Tribunal recounts in its decision, it searched for information about the Nazir Bhatti Memorial Hospital but could not find any. This detracted from the applicants’ credibility which led to the Tribunal placing no weight on the documents. The Tribunal did find a reference to Dr Nazir Bhatti at a different hospital. While the applicants contend that that was information about an individual (other than the applicants) it was, in reality, simply an element in the country information about the hospital relied upon by the Tribunal. While, under the general law, procedural fairness may well have required the disclosure of the hospital information to the applicants, given the significant adverse bearing it had upon their credibility, it was not information requiring disclosure pursuant to s.424(1) because of the operation of s.424(3)(a) of the Migration Act in relation to that information.
Conclusion
I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 May 2013
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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