SZSOG v Minister for Immigration
[2014] FCCA 769
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSOG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 769 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – whether more recent decision of a single judge of the Federal Court on appeal from this Court is inconsistent with earlier Full Court decision on appeal from this Court – proper approach to be taken by this Court – application of s.424A of the Act to inconsistent evidence of co-applicants. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424, 424A, 424AA, 430 |
| Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110 |
| First Applicant: | SZSOG |
| Second Applicant: | SZSOH |
| Third Applicant: | SZSOI |
| Fourth Applicant: | SZSOJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 214 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 25 June & 27 August 2013 |
| Date of Last Submission: | 10 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr Karp |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr G Johnson SC |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 214 of 2013
| SZSOG |
First Applicant
| SZSOH |
Second Applicant
| SZSOI |
Third Applicant
| SZSOJ |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal dated 11 January 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants, who are citizens of Pakistan, are a wife and a husband and their two sons, the younger of whom was born in Australia. The Tribunal recorded that the parents and their older son arrived in Australia in October 2010 as the holders of student visas. They applied for protection visas in November 2010. Their younger son was born in February 2011 and was taken to have applied for a protection visa at the time he was born under the Migration Regulations 1994 (Cth).
In the protection visa application the Applicant wife claimed to fear persecution within the Refugees Convention. Her husband and their then only child made claims as members of her family unit. In her protection visa application and accompanying statement dated 23 November 2010 the Applicant wife claimed that she and her husband were from different cultures, that her husband was a supporter and, since 2007, a member of the anti-Taliban Awami National Party (ANP) who had publicly expressed anti-Taliban views and who had married her, and that this had affected her as an educated woman who worked and who had married outside her culture and ethnic background. The wife also claimed that in Karachi it was known that she supported the Mutahida Qumi Movement (MQM) in which her mother had held a role of assistant joint secretary of the women’s wing.
The wife claimed that she and her husband had married for love in September 2003 and that while their families were happy with the marriage, people in favour of Taliban culture had started to threaten her life and the lives of her family. She claimed she received two telephone threats, in 2007 and 2008.
The Applicants first came to Australia in mid-2009 so that the wife could study further. They returned to Pakistan to visit her parents in Karachi in August 2010. The wife claimed that another threatening phone call was made to her mobile telephone number on 21 September 2010 and that on 23 September 3010 she and her husband and son were stopped at gunpoint by men who threatened them and said that her attire (jeans and t-shirt) was against Islam and that if they did not leave Pakistan they would be killed. They reported the threats to the Police and they sought protection from the government directly and through the press, but received no protection. The wife also claimed to have received a threatening letter that referred to her having “damaged the Islam” and confirmed that the threats were from the Taliban. She provided a translation of this letter to the Department together with other supporting documentation.
In addition to expressing general fears about the situation in Pakistan, the wife also claimed that in 2007 her husband had been tortured (and his toe “chopped”) while in his home area due to their marriage. She also claimed that in November 2010, after they returned to Australia, someone had written to her husband to say that his house in north-west Pakistan had been demolished by the Taliban.
The wife claimed that as a modern and educated person she feared the Taliban, that the main problem was her marriage and that it was the same for her husband. She also claimed that her husband was in danger from the MQM in Karachi because he was affiliated with the ANP.
On 16 March 2012 the application was refused by a delegate of the First Respondent. The Applicants sought review by the Tribunal. They provided further documents in support of their claims. Their adviser made written submissions. The Applicants attended a Tribunal hearing on 7 August 2012. Both the adult Applicants gave evidence. A transcript of the Tribunal hearing is in evidence before the court as an annexure to the affidavit of Alison Valerie Saunders affirmed on 19 August 2013.
In its reasons for decision the Tribunal described in detail the claims and material provided to the Department, the wife’s evidence at a departmental interview, the evidence of the wife and the husband at the Tribunal hearing and further documentary evidence and submissions provided to the Tribunal.
The Tribunal found that, notwithstanding that a psychologist’s report indicated that the wife was experiencing symptoms of anxiety, depression and post-traumatic stress disorder, she was able to participate effectively in the Tribunal hearing. The Tribunal considered, but rejected, the representative’s submissions about the adequacy of the interpretation at the Tribunal hearing. It did not accept that either the wife or her husband had been denied a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal addressed the claims made by both the wife and her husband. The Tribunal considered it appropriate to assess the application on the basis that the Applicants would return to Karachi where the wife had lived all her life and where the husband had been living and working since 1992.
It recorded that, as it had put to the Applicants at the hearing, it had great difficulty in accepting their claims about problems they claimed they faced in Karachi to do with their marriage and the fact that they were from different cultural backgrounds and parts of Pakistan. The Tribunal found that even if it were to accept all of their evidence, such evidence did not suggest that the adult Applicants had experienced problems because of their marriage in 2003. While the representative’s post-hearing submission suggested that they had received substantial hostility from the broader community as a result of their marriage, the Tribunal had regard to the fact that in her original application the wife had said that she received a warm welcome, even in her husband’s village where she had stayed for a month.
Insofar as the wife had originally claimed that a 2007 attack on her husband in his home village was due to their marriage, the Tribunal found that even if this event had occurred, it would suggest that they had had no problems after their 2003 marriage, even in the husband’s village, until the husband joined the ANP in 2007. The Tribunal found, in any event, that the evidence the Applicants had subsequently produced suggested that the cause of this claimed attack was political enmity rather than their marriage.
The Tribunal then considered the extent to which the Applicants claimed that the husband had experienced past harm based on his political activity. It stated at [105]:
The applicant’s husband said at the hearing before me that they had been receiving threatening letters and telephone calls all the time from the Taliban and that he had had problems with the Taliban because he had joined the ANP in 2007 and he had been speaking openly against the Taliban on the roads and in other places. However, as I put to him, the applicant herself in her original application did not suggest that they had been receiving threatening letters and telephone calls all the time from the Taliban. She said that she had received one telephone call in 2007 and one telephone call in 2008. She said that after they had returned to Pakistan in 2010 they had received one further telephone call and that they had also received one threatening letter. Moreover by the applicant’s account the threatening telephone calls made no mention of her husband’s political activity nor does the threatening letter which she produced mention her husband’s political activity.
In assessing such evidence the Tribunal had regard to the wife’s claim that she had prepared her protection visa application at a time she was suffering from stress and tension and was pregnant and to the fact that she had said (and her husband agreed) that everything in the statement accompanying the original application was correct. The Tribunal found that this would indicate that there had been no threats that referred to the husband or to his political activity.
The Tribunal addressed the claim by the wife that her husband was attacked in his home village in 2007 and their claims at the hearing that the husband had also been attacked by four people in Karachi in 2008 and had suffered an injury to his finger that had required stitches. It stated:
The applicant said that the four people who had attacked her husband had belonged to the MQM but her husband was more equivocal, saying that they could have been from the MQM or the Taliban. Both the applicant and her husband said that the MQM had been asking for donations and they both referred to the fact that he had refused to give them the skins of animals which had been sacrificed at festivals.
The Tribunal had regard to the wife’s oral evidence that, despite their claimed problems with the Taliban and the MQM in Karachi, they had thought that everything would settle down and they would go back to Pakistan after she had completed her studies in Australia. However the Tribunal found that “if the applicant and her husband were telling the truth about the problems they had had before leaving Pakistan in 2009, it [wa]s difficult to accept that they could have thought that with the passage of time people would not know about them and that they would be able to restart their life” in Pakistan. It found that the Applicant wife and her husband had been living happily in Karachi until an incident in which she claimed that she, her husband and her older son were threatened on 23 September 2010.
The Tribunal considered the claim that on 23 September 2010 the Applicants were confronted by two bearded men with guns who had attempted to kill them, but that they had escaped because firing had started nearby. The Tribunal was of the view that on the Applicants’ account of this incident, the men “clearly had the opportunity to kill them if this had been what they had wanted to do”. It found that the Applicants’ evidence that these men took issue with the wife wearing jeans and T-shirt as being against Islam suggested they were given a warning, rather than that this was an attempt to kill them.
The Tribunal did not accept the husband’s claim that a bomb blast at the market in his home village (where he was a part owner of a CD or video shop) was directed against him. It found that his claim that the bomb had been put exactly in front of his property did not accord with photographs produced to the Department and that it was notorious that the Taliban had destroyed CD shops all over that part of Pakistan.
The Tribunal did not accept that the fact the wife was pregnant when she made the original protection visa application explained the fact that the application was based entirely on claims made by her or the fact that her husband signed a form stating that he did not have any claims to be a refugee. It observed that insofar as this might reflect the wife’s understanding of English, she had sufficient English to have completed an educational qualification in Australia. The Tribunal found that the issue was not whether the wife knew how to make an application, but whether what she said in the statement accompanying the application was true. It reiterated that if, as both adult Applicants said, everything in the wife’s statement was true, then the threats they claimed to have received had made no mention at all of the husband’s political activities.
The Tribunal did not find the Applicants to be credible witnesses. It stated at [112]:
…I consider that the applicant and her husband have sought to change the nature of their claims significantly in the course of the processing of their application by shifting the focus to the applicant’s husband’s political involvement. Having regard to the shift in their evidence I do not accept that they are credible witnesses. While I accept parts of the evidence given by the applicant and her husband I consider that they have changed some incidents and invented other incidents in an attempt to provide a basis for their application.
Based on medical evidence, the Tribunal accepted that the husband had suffered a crush injury to one of his toes in 2007 and that as a result his toe was amputated. However it did not accept that the toe was “chopped” by the Taliban or that it was “a usual Taliban method of taking revenge [against those] suspected of being against Taliban” or who had engaged in activities against Taliban ideology. The Tribunal gave greater weight to evidence about the nature of the injury from the outpatients department of a hospital in Pakistan than to an affidavit produced at the hearing and an undated press report from an unidentified newspaper which suggested that the husband’s brother had claimed in a press release that “unknown Taliban” had attacked the husband’s home in 2007 due to his political attachment and anti-Taliban views. The Tribunal was of the view that the wife and her husband had attempted to pass off an incident in which the husband had suffered a crush injury to his toe as an attack by the Taliban. It did not accept that the husband was attacked by the Taliban in February 2007 due to his marriage or due to his having joined the ANP in Karachi in 2007 and having spoken out openly against the Taliban.
Similarly, while the Tribunal accepted that the husband had at some time suffered an injury to his hand which required stitches, it did not accept that he suffered this injury in a 2008 attack by people from the MQM or the Taliban in Karachi. It concluded that the Applicants had “attempted to pass off an incident in which the applicant’s husband suffered an injury as a politically-motivated attack”. The Tribunal did not accept that the husband had been asked for donations or for the skins of animals by the MQM in Karachi, being of the view that if this were true the wife would have made some reference to such matters in the statement accompanying her protection visa application. It did not accept that such omission was explained by the fact of her pregnancy or the fact that she was suffering symptoms of anxiety, depression and post-traumatic stress disorder at the time of the hearing.
Nor did the Tribunal accept that the wife had received two threatening phone calls from the Taliban (in 2007 and 2008) or that when the Applicants returned to Pakistan to visit her parents in 2010 they received another threatening telephone call and a threatening letter. The Tribunal did not accept the Applicants’ claims about being threatened by two bearded men with guns on 23 September 2010, and found that even if it were to accept that the Applicants were telling the truth about this incident, it did not accept that this was an attempt to kill them.
The Tribunal considered the evidence provided in support of the claims. It did not regard a letter about admission of the wife to hospital for stress on 24 September 2010 as corroboration of the claims about an incident on 23 September 2010. Nor did it accept that letters that the Applicants had written to the President of Pakistan, the Prime Minister and an Inspector-General provided independent corroboration of the Applicants’ claims. In relation to alleged newspaper reports in apparently identical terms said to have appeared in newspapers of September 2010 reporting that the Applicants had been threatened, the Tribunal considered it relevant that it was possible to have false stories published in newspapers in Pakistan for a fee. It did “not consider that any weight [it] could give to these newspaper reports would outweigh the doubts [it had] about the credibility of the claims being made by the applicant and her husband”.
The Tribunal accepted that the Taliban had been accused of killing people in Karachi, but found that the evidence available suggested the Taliban was responsible for very little violence in Karachi. It rejected the wife’s claims that her situation was analogous to that of a particular person who had been fighting for gender equity and women’s empowerment, as the wife had not claimed she had engaged in such campaigning. It did not accept that it was credible that the wife would have been targeted by the Taliban in Karachi because of her actual or imputed political opinion based on her mother’s involvement in the MQM women’s wing, given that the wife had not claimed she had joined the MQM.
The Tribunal continued at [118]:
The applicant’s husband suggested that the applicant had been targeted by the Taliban because of his political activity but, as I put to him, this is not the case which the applicant put forward. Her statement does not suggest that any reference was made to her husband’s political activities in any of the telephone calls or when she and her husband supposedly encountered the two bearded men with guns on 23 September 2010 nor does the threatening letter which she produced make any reference to her husband’s political activities.
The Tribunal did not accept that the fact that the wife was a working woman rendered her susceptible to threats or that she was singled out and targeted by the Taliban in the way claimed.
The Tribunal concluded that it did not accept that if the wife and her family returned to their home in Karachi now or in the reasonably foreseeable future there was a real chance she would be persecuted by the Taliban for reasons of her real or imputed political opinion based on her mother’s involvement in the MQM, her husband’s involvement in the ANP, the fact that she was working, the way she dressed or the fact that she had been living in a Western country.
While the Tribunal accepted that the wife and her husband were from different backgrounds (the wife being from an Urdu-speaking background from one area, and the husband a Pashto-speaking Pathan from a different area), it did not accept that they had received substantial hostility from the broader community as a result of their marriage or that there was a real chance that if they returned to Karachi either of them would be persecuted because they had a love marriage or because they came from different cultures.
In relation to the husband’s claims about his anti-Taliban views, the Tribunal found at [121]:
I accept that the applicant’s husband joined the ANP in Karachi in 2007 but for the reasons given above I do not accept the applicant’s husband was attacked by the Taliban in his village February 2007 nor that he was attacked by the Taliban or the MQM in 2008. The applicant’s husband said that if you spoke out against the Taliban even once in Karachi they would kill you but I consider that this suggests that the applicant’s husband was not in fact speaking out against the Taliban in Karachi or elsewhere as he claims. I note that the letter which the applicant produced from Abdur Raziq Khan, the president of the ANP in Union Council No.1, Kemari Town, in Karachi, refers to the law and order situation in Karachi rather than any specific threat to the applicant’s husband because of his membership of the ANP or his claimed involvement in speaking out against the Taliban.
The Tribunal reiterated that for the reasons given it did not accept that the bomb blast in the market was directed against the husband, that his house was destroyed in 2007 or 2010, that he had ever been attacked by the Taliban or the MQM for reason of his involvement in the ANP or for speaking up openly against the Taliban, that he was involved in speaking out against the Taliban, or prevented from speaking out openly against the Taliban by his fear of being persecuted if he did so.
The Tribunal did not accept that if the wife and her family returned to Karachi there was a real chance the husband would be persecuted by the Taliban or the MQM for reason of his real or imputed political opinion in support of the ANP, opposition to the Taliban or the MQM, or in support of modernisation, women’s education and freedom, or that he would be prevented from travelling to his home village because of his claimed fear of being persecuted by the Taliban.
The Tribunal accepted that the husband was a Pathan, but found that there was only a remote chance that either the husband or the wife, or either of the children, would fall victim to the acknowledged political and ethnic violence in Karachi. It did not accept that there was a real chance that any of the family would be harmed or killed or otherwise persecuted in the context of the political and ethnic violence in Karachi.
The Tribunal concluded that for the reasons given it did not accept there was a real chance the wife, her husband, or either of the children, would be persecuted for reasons of race, actual or imputed political opinion or membership of any particular social group, including the family or women working outside the home, or for any other Convention reason.
The Tribunal addressed the issue of complementary protection and the representative’s post-hearing submission that the Applicants genuinely feared for the safety of their lives if they returned to Pakistan and that it was highly likely they would be targeted and subjected to severe harm at the hands of the Taliban or their political opponents. Having regard to its earlier findings of fact, the Tribunal did not accept there was a real risk the Applicants would suffer significant harm at the hands of the Taliban or their political opponents on return to Pakistan.
The Tribunal accepted there was violence in Karachi between ethnic groups and parties like the ANP and MQM, but considered it relevant that there were reportedly 18 million people in Karachi. Having regard to the overall number of people involved, the Tribunal concluded there was “only a remote risk” that the wife, her husband or either of the children would fall victim to this political and ethnic violence. It did not accept that there was a real risk the wife, her husband, or either of the children would suffer significant harm in the context of the political and ethnic violence in Karachi. Having regard to its findings of fact, the Tribunal did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the wife, her husband or either of the children being removed from Australia to Pakistan there was a real risk they would be arbitrarily deprived of their lives, that the death penalty would be carried out on them, that they would be subjected to torture, to cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Migration Act 1958 (Cth). On the evidence before it the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of removal, there was a real risk that any of the Applicants would suffer significant harm as defined in s.36(2A) of the Migration Act. The Tribunal affirmed the decision not to grant the Applicants protection visas.
The Applicants sought review by application filed in this Court on 6 February 2013. At that time they were self-represented. The matter came before the court for hearing on 25 June 2013. Several issues emerged in the course of the hearing. The parties were given the opportunity to file further written submissions. The matter was listed for further hearing on 27 August 2013.
The Applicants obtained legal representation. On 19 August 2013 they filed an outline of submissions in which they sought leave to rely on an amended application pleading a ground of review that had not been raised previously. At the hearing of 25 June 2013 counsel for the Applicants confirmed that the Applicants no longer sought to rely on any of the grounds raised in the original application or in the First Respondent submissions filed on 19 July 2013. A further hearing was held in relation to the new ground of review.
The Applicants subsequently filed a further amended application which wholly replaced the grounds previously relied on with the following:
The Tribunal breached section 424A(1) of the Migration Act.
Particulars:
(a) The Tribunal did not comply with s.424AA(b)(iii) in disclosing to the second applicant (the husband) information given by the first applicant (the wife).
Further particulars:
(i) Information given by the wife, in her statement to the effect that she had received one threatening telephone call in 2007, one in 2008 and a further threatening call in 2010.
(ii) Information given by the wife at hearing that people who attacked her husband in Karachi in 2008 belong to the MQM
(iii) Information that neither the wife’s statement as to the threatening calls nor a “threatening letter” that she produced make any reference to the husband’s political activities.
(b) The Tribunal did not comply with s.424A(1) in that it did not disclose to the wife information given at hearing by the husband.
Further Particulars
(i) Failure to disclose, and disclose in a way required by s.424A, that the husband’s oral evidence was that the couple had been receiving threatening letters and telephone calls, “all the time”.
(ii) Failure to disclose, and disclose in a way required by s.424A, that the husband’s oral evidence was that an attack upon him in Karachi in 2008 could have been from the MQM or the Taliban.
(iii) Failure to disclose, and disclose in a way required by s.424A, that the husband’s oral evidence was that the husband suggested that he had been targeted by the Taliban because of his political activity.
Section 424A is of central relevance in these proceedings. It is as follows:
(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 also relevant. It provides for particulars of information to be given orally during a Tribunal hearing in accordance with a specified procedure. If the Tribunal complies with the obligations in s.424AA, it is not obliged to give particulars of information in writing as provided for in s.424A of the Act (see s.424A(2A) and SZNKX v Minister for Immigration and Citizenship [2009] FCA 1407 at [20] per Lander J).
Counsel for the Applicants referred to the fact that the word “information” in s.424A(1)(a) was said by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24] to refer to “knowledge of relevant facts or circumstances communicated to or received by the tribunal.” It was submitted that assertions as to events which were said to have occurred and evidence given at a hearing were plainly within the meaning of “information” as knowledge of relevant facts or circumstances communicated to or received by the Tribunal.
The Applicants also contended that insofar as the Tribunal had in part relied on inconsistent oral evidence to affirm the decision under review, the facts were very similar to those in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 in which there had been a failure to comply with s.424A of the Act. It was submitted that the fact that the inconsistent evidence in this case was given by a co-applicant rather than by a witness was legally irrelevant (see SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110 at [51] per Marshall J with whom Moore J and Finn J agreed).
The Applicants acknowledged that in VAF Finn and Stone JJ had also stated at [24] that the concept of information:
…does not encompass the tribunal’s subjective appraisals, thought processes or determinations…; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
This part of the reasoning in VAF was adopted by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]. Their Honours went on to state in SZBYR (at [18]):
… If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …
In addition, the majority judgment in SZBYR at [17] considered the concept of “the reason, or a part of the reason, for affirming the decision that is under review” in s.424A(1). Counsel for the Applicants submitted that what was in issue was what the High Court meant by its reference in SZBYR at [17] to whether material contained “in its terms a rejection, denial or undermining” of an applicant’s claim to be a person to whom Australia owed protection obligations. Reliance was placed on the construction adopted by Gray J in MZYIA v Minister for Immigration and Citizenship and Another (2011) 121 ALD 291; [2011] FCA 642 at [25] – [26].
The Applicants submitted that if the Tribunal used factual material given by one person to undermine or weaken the case presented by another, then the High Court’s test in SZBYR at [17] was satisfied. MZYIA was said to illustrate that in determining whether information was “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” it was relevant to have regard not only to the terms of the information in question, but also to how the Tribunal proposed to use the information in its reasoning process (MZYIA at [25]). Gray J had pointed out that in most cases the only possible source of evidence that the Tribunal had formed such a state of mind was the Tribunal reasons for decision and stated that that thus it was only by examining the Tribunal’s “disclosed process of reasoning” that it could be determined that “at some antecedent time, the tribunal must have reached the state of mind that it considered that the information would be reason, or part of the reason, for affirming the decision under review” (MZYIA at [26]).
Counsel for the Applicants submitted that MZYIA made it clear that regard should be had not only to the terms of the information in question but also to the Tribunal’s understanding of the information and how the Tribunal proposed to use it and that until the reasons for decision were available it would not be apparent how the Tribunal actually proposed to use the information. It was submitted that MZYIA was distinguishable from the authorities of Minister for Immigration and Citizenship v SZHXF and Another (2008) 166 FCR 298; [2008] FCAFC 36 and SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 relied on by the First Respondent.
It was also submitted that in the context in which the majority of the High Court had used the word “undermine” in SZBYR at [17], this notion referred to weakening an applicant’s case. This was said to be the normal meaning of the word “undermine”. It was submitted that in each of the instances relied on in the particulars to the ground in the further amended application the Tribunal had actually used the factual material presented by one Applicant to weaken (and hence undermine) the case made by the other. Thus it was said that it was necessary for the Tribunal to comply with s.424A of the Act in relation to each of the particularised matters.
The Applicants submitted that during the hearing the husband gave certain facts to the Tribunal as part of his evidence and that those facts constituted information within the meaning of s.424A(1) of the Act that had to be put to the Applicant wife, either in the manner prescribed by s.424A or by s.424AA of the Act. In addition, it was said that there was certain oral evidence from the wife and information in written documents provided by her in support of the protection visa application that had to be put to the husband as information within s.424A(1) of the Act.
It was pointed out that in not accepting that the events claimed by the Applicants had occurred, the Tribunal had reasoned that the wife had sought to change the nature of her claims by shifting the focus to her husband’s political involvement and that having regard to this shift the Tribunal did not consider either the husband or the wife to be a credible witness. It was submitted that significant aspects of the Tribunal’s reasons rested on a comparison of the evidence given by the husband at hearing with that of the wife given both orally and in writing.
Counsel for the Applicants explained that while there were six particulars, there were three issues in relation to which a s.424A(1) obligation was said to arise in relation to different information given by each of the wife and the husband.
The first issue (in particulars (a)(i) and (b)(i)), relates to the evidence of each of the adult Applicants in relation to the frequency with which they had been receiving threats from the Taliban. The Tribunal noted at [105] that the husband’s oral evidence was that they had been receiving threats from the Taliban “all the time”, whereas in her written statement the wife did not suggest that that they had been receiving threats “all the time” from the Taliban and gave evidence of only three threatening telephone calls to her (in 2007, 2008 and 2010). It was submitted that the wife’s written evidence in this respect had to be put to the husband and that the husband’s oral evidence had to be put to the wife under s.424A of the Act.
The second asserted category of “information” (in particulars (a)(ii) and (b)(ii)) relates to the identity of the persons who attacked the husband in Karachi in 2008. The Tribunal recorded (at [107]) that while the wife had claimed at the hearing that her husband had been attacked by the MQM in Karachi in 2008, the husband had been “more equivocal”, stating that it could have been the MQM or the Taliban. The Applicants submitted that both the wife’s evidence that the attackers belonged to the MQM and the husband’s evidence that the attackers could have been from the MQM or the Taliban amounted to “information” within s.424A(1) that had to be put to the other Applicant.
The third issue, (in particulars (a)(iii) and (b)(iii)) relates to claims made about targeting of the husband by the Taliban because of his political activity. The Tribunal recorded (at [118]) that the husband had claimed that his wife had been targeted by the Taliban because of his political activity, but that was not the case that the wife put forward. The Tribunal referred to the fact that the wife’s written statement in support of her protection visa application did not suggest that any reference was made to her husband’s political activities in the threatening telephone calls and that the threatening letter she produced also made no such reference. The Applicants submitted that the husband’s evidence that he had been targeted by the Taliban because of his political activity had to be put to the wife and that “information” that neither the wife’s written statement nor the threatening letter she produced referred to the husband’s political activities had to be put to the husband as “information” within s.424A(1) of the Act.
It is not in dispute that the Tribunal did not put any information to either of the adult Applicants in writing in accordance with s.424A of the Act. In oral submissions the First Respondent did not maintain an initial contention (in written submissions) that s.424AA had been complied with at the hearing in the manner in which the Tribunal raised issues with the husband in relation to his wife’s claims and evidence. Nor did the First Respondent dispute that if any of the items referred to in the six “further particulars” to this ground constituted “…information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” then the Tribunal would have been obliged to put such matters to the respective Applicants, either orally in accordance with s.424AA of the Act or in writing in accordance with s.424A of the Act. Hence the only issue for consideration is whether any of the items referred to in the further particulars constitute “information” within s.424A(1) of the Act.
The First Respondent acknowledged that the main point in issue between the parties was whether or not deficiencies or gaps in evidence and particularised inconsistencies comprised information that “the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within s.424A(1)(a) of the Act. It was submitted that none of the items referred to in the ground of review comprised information to which the obligation in s.424A(1) of the Act applied, because these matters were not “in their terms a rejection, denial or undermining of the [other Applicant’s] claims to be [a] perso[n] to whom Australia owed protection obligations” as discussed in SZBYR at [17] (and see Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31at [22] per French CJ, Heydon, Crennan, Kiefel and Bell JJ).
The First Respondent submitted that when regard was had to all of what was said in the majority judgment in SZBYR at [17] it was apparent that their Honours were indicating that the answer to the issue in this case would not depend upon the Tribunal’s actual process of reasoning. It was pointed out that their Honours had stated that the statutory criterion did not turn on “the reasoning process of the Tribunal” or “the Tribunal’s published reasons” and had suggested that the use of the future conditional tense strongly suggested that the operation of s. 424A(1)(a) was “to be determined in advance and independently” of the Tribunal’s reasoning on the facts of the case. Their Honours’ statement in SZBYR that to attract the operation of s.424A the material in itself must be a rejection, denial or undermining of an applicant’s claims was said to be an indication that this was an objective matter to be determined in the absence of what would be the future reasons of the Tribunal. Thus it was said to be plain from SZBYR at [17] that the High Court did not regard the question as one to be answered from the Tribunal’s reasons for decision, that is, the use the Tribunal subsequently made of the information.
The First Respondent submitted that the matters particularised in the Applicants’ ground of review were not in themselves matters which, looked at objectively, constituted a rejection, denial or undermining of either Applicant’s claim to be a person to whom Australia owed protection obligations. Rather, it was contended that these matters were differences in detail that were relied upon to ground findings of inconsistency and that the inconsistencies that ultimately grounded the decision were not matters that had to be the subject of a s.424A invitation. Insofar as one of the particulars referred to the absence of reference to the husband’s political activities in the wife’s account of telephone calls or in the threatening letter she received this was said to be outside s.424A(1) as a gap in evidence of the type considered in SZBYR at [18].
The First Respondent placed particular reliance on the statement by Buchanan J (with whom Perram J) agreed in SZJBD at [104] as follows:
I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant’s answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.
The First Respondent relied on what Buchanan J said about the factual statements themselves in SZJBD in support of the proposition that the items in the particulars to the ground in the further amended application were neutral and had no feature or attribute which made them disclosable under s.424A of the Act.
The material in issue in this case is of a different nature to the material considered in SZJBD, which was factual material about the Falun Gong movement. However, the First Respondent submitted that the evidence of the wife and the husband respectively did not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. Rather, it was said that each item of material “only ha[d] that significance when matched with answers given by the [other] applicant” (see SZJBD at [104]). On this basis it was submitted that (consistent with SZJBD and also SZHXF to which Buchanan J had referred in SZJBD) the matters complained of by the Applicants did not constitute “information that would be the reason, or a part of the reason, for affirming the decision that is under review” within s.424(1) as understood in light of SZBYR.
Counsel for the First Respondent accepted that this reasoning did not necessarily mean that one could not have regard to the Tribunal’s reasons to see how the Tribunal had dealt with items said to constitute “information” (see SZJBD). Rather, it was said that the objective nature of the information, shorn of the analytical aspect, as referred to at [104] in SZJBD would determine whether the evidence constituted “information” within s.424A(1). In any event, it was submitted that if regard was had to the Tribunal’s reasons this in fact supported the First Respondent’s contentions that none of the items constituted disclosable information.
In oral submissions Counsel for the First Respondent suggested that it appeared that MZYIA, which was relied on by the Applicants, had not considered the earlier judgments of the Full Court of the Federal Court in SZJBD and SZHXF (which was followed in SZJBD) and that there was an inconsistency between the approach taken by the Full Court of the Federal Court in SZJBD and the subsequent approach taken by Gray J in MZYIA.
The parties were given the opportunity to make post-hearing submissions in relation to whether there was a conflict in the approach taken in MZYIA and SZJBD and, if so, whether this Court should follow a later decision of a single judge of the Federal Court in preference to an earlier decision of the Full Court of the Federal Court in circumstances where both cases were on appeal from this Court. Ultimately, however, both parties contended that MZYIA was not to be read as inconsistent with SZJBD. The First Respondent submitted that MZYIA and earlier Federal Court judgments to which it referred could and should be read as consistent with the effect of SZBYR and with the Full Court consideration of the effect of SZBYR in SZHXF and SZJBD and that the Court should follow SZJBD (ultimately at [104]). The Applicants contended that MZYIA made it clear that factual information that was perceived by the Tribunal as being contrary to the Applicant’s claims was within s.424A(1) and should be followed and that the authorities relied on by the Minister, such as SZHXF and SZJBD, were not to the contrary insofar as they established that factual material which was not in itself contrary to the Applicant’s claims (or perceived by the Tribunal as such) was not within s.424A(1) of the Act.
Consideration
Apart from the Tribunal’s obligation to raise dispositive issues with an applicant under s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63), it is not in dispute that where there are two (or more) applicants for review, the Tribunal is obliged to provide “clear particulars” of “information” obtained from one applicant to the other applicant under s.424A of the Act “if the relevant information has the characteristics enlivening the duty created by [s.424A(1)]” (see SZGSI at [2] per Moore J and see Marshall J at [51]). The only issue in this case is whether the duty under s.424A(1) was enlivened.
The hearing proceeded on the basis that if the wife’s evidence gave rise to a s.424A(1) obligation in relation to the husband, what occurred at the Tribunal hearing did not obviate the need to comply with s.424A(1) of the Act. A contention that the matters in particular (a) were put to the husband in accordance with s.424AA of the Act was not pressed by the First Respondent. There was no suggestion that the husband’s evidence in particular (b) was put to the wife at the hearing in accordance with s.424AA of the Act.
Hence the issue is whether any of the particularised matters constitutes “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within s.424A(1) of the Act in the sense explained in the authorities relied on by the parties.
In SAAP McHugh, Kirby and Hayne JJ (Gleeson CJ and Gummow J dissenting) had held that s.424A required the Tribunal to give an applicant for a protection visa particulars of information obtained from oral evidence given by her eldest daughter during the Tribunal hearing at the request of the Tribunal. The daughter had previously been granted a protection visa. The daughter’s evidence related to the date the applicant’s husband had lost the sight of his eye, the circumstances of claimed attempts to abduct the daughter and the attendance of the applicant’s children at school. These were incidents the applicant had relied on to support her claim. In particular the applicant had claimed that her children had been refused admission to school. The daughter’s evidence was to the contrary (SAAP at [37]).
However the majority of the High Court in SAAP proceeded on the basis that the Tribunal considered that information obtained from the evidence given by the daughter would be the reason or part of the reason for affirming the decision under review (see McHugh J at [37] – [38], Kirby J at [144] and [152] and Hayne J at [184] and also see Gleeson CJ at [10]). Insofar as the Applicant relied on the fact that SAAP related to factual information perceived by the Tribunal as contrary to an applicant’s claim because it was inconsistent with those claims, in SAAP the High Court did not consider the extent to which s.424A(1) would apply to evidence that was treated as inconsistent with an applicant’s claims or whether there was a distinction between “information” and inconsistencies. Rather, what was in issue in SAAP was whether s.424A operated throughout the review (or only before the hearing), the effect of a failure to comply with s.424A of the Act and whether relief should be refused on discretionary grounds. The majority saw no basis to exercise the discretion to refuse to grant relief.
In SZBYR the majority (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) addressed the application of s.424A(1) of the Act in circumstances in which the Tribunal had perceived inconsistencies between the primary appellant’s statutory declaration in support of his application and his later oral evidence. Initially, the appellants had appeared to suggest that inconsistencies amounted to information. Subsequently they had focused on the relevant passages in the statutory declaration from which the inconsistencies were later said to arise.
It was in that context (and prior to the introduction of the exception in s.424A(3)(ba) of the Act) that the majority considered whether passages in the appellant’s statutory declaration from which inconsistencies with his oral evidence were later said to arise, constituted “information” that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review within s.424A(1) of the Act (SZBYR at [15]). Their Honours referred to a number of issues in relation to the Applicant’s submissions, making the point that s.424A did not require notice to be given “of every matter the Tribunal might think relevant to the decision under review” (at [15]). Relevantly, their Honours stated at [17] – [18]:
… 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.
Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Their Honours firmly rejected the contention that s.424A was engaged by “any” material that contained or tended to reveal inconsistencies in an applicant’s evidence (at [19] – [20]), before concluding (at [21]) that “on the facts of this case, s 424A was not engaged at all: the relevant parts of the … statutory declaration were not “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review””. In reaching this conclusion their Honours referred to the “limited scope” of s.424A (at [22]).
Subsequent cases have endeavoured to explain and apply these principles. The First Respondent relied on the majority views in SZJBD (which in turn relied on SZHXF) in support of the proposition that the application of s.424(1) to factual material was to be determined objectively and shorn of any analytical context revealed in the Tribunal reasons for decision, with consideration being given to whether the material in its terms was a rejection, denial or undermining of an applicant’s claims to protection.
In SZHXF what was in issue was whether s.424A(1) applied to two matters, first that the Tribunal regarded advice from a particular third party source as reliable and second that the visa applicant’s inadequate awareness of figures of religious significance in Ahmadi beliefs indicated that he was not a genuine Ahmadi (SZHXF at [6]). In making its findings the Tribunal had referred to a body of material about Ahmadi beliefs.
The Full Court in SZHXF held that neither of the matters in issue was within s.424A(1). Relevantly, the Court referred at [11] to the need identified in SZBYR “to identify the “information” and consider its relationship to the reasons for affirming the decision under review”. Their Honours stated that the “views of the Tribunal as to the reliability of certain information or sources of information are not generally material which in itself goes to affirming the decision under review” but “are part of the evaluation or appraisal of the evidence itself and are properly characterised as part of the Tribunal’s reasoning or thought processes” and not “information” within s.424A(1) (SZHXF at [12] referring to SZBYR at [18]).
Nor, according to SZHXF at [13], could the process of assessment of an applicant’s evidence in light of reliable information itself properly be characterised as materially undermining the applicant’s claims. In that context their Honours made the point that while information derived from reliable sources was used as part of the Tribunal’s process of consideration of the Applicant’s evidence, it was not of itself “information” within s.424A(1) of the Act (at [13]).
Their Honours also rejected the proposition that the visa applicant’s inadequate familiarity with the Ahmadi faith was within s.424A and found that material setting out basic religious beliefs was not information directed to a determination of an application, but rather “a tool which may be used to test and evaluate the credibility of evidence” (at [16]). However the factual material considered in SZHXF was of such a nature that it could be seen as inherently neutral.
Similarly, in SZJBD what was in issue was inherently neutral independent evidence about the history of Falun Gong. It had been argued that such evidence undermined the applicant’s claim to have a well-founded fear of persecution as a Falun Gong practitioner because it rendered her answers to questions about Falun Gong false and suggested that her knowledge of Falun Gong was erroneous or lacking. Spender J was of the view that the evidence said to falsify the applicant’s answers attracted the s.424A(1) obligation of disclosure. However Buchanan J (with whom Perram J agreed) rejected the view that such independent evidence was information subject to the s.424A(1) obligation. Nor did the majority accept that the fabrication of the applicant’s answers by reference to external material or the “intermediate” finding that she showed a lack of knowledge of Falun Gong by her answers constituted “information” with s.424A(1).
Buchanan J admitted to an initial attraction to the analysis suggested by the applicant in SZJBD and to the view that (at [94]):
both the falsification of the applicant’s answer by reference to external material and the more general intermediate finding, that she showed a lack of knowledge of Falun Gong by her answers, were each “information” required to be disclosed in accordance with s 424A.
However a number of factors led his Honour to the opposite conclusion and to the view that the elements in the process of reasoning of the Tribunal should be seen as part of its subjective appraisal of the applicant’s claims, and not information.
His Honour referred (at [95]) to “structural indications in the Act to support the view that “information”, as the term is used in s.424A of the Act, must refer to actual or potential evidentiary material from which analysis, fact finding and conclusions all, in due course, proceed” (see in particular s.430 of the Act) and also to the limits on the concept of “information” referred to in the majority judgment in SZBYR at [18] by way of approval of the remarks of Finn and Stone JJ in VAF. In that context Buchanan J cited the then very recent decision of the High Court in SZLFX.
Buchanan J addressed (at [100]) what was said to be the explicit consideration by the Full Court in SZHXF of the question of “whether a finding by the RRT, that lack of expected knowledge was inconsistent with claimed religious affiliation, was information was which required to be disclosed under s 424A”. His Honour referred to the findings in SZHXF (at [15] – [16]) that material gathered from questioning the applicant about his familiarity with a particular faith was not of itself the reason or part of the reason for affirming the decision that a protection visa should not be granted, but rather a body of material used by the Tribunal as part of its evaluation exercise to weigh and consider the visa applicant’s claim. In other words, such material was said to have been used by the Tribunal in a process of reasoning which allowed it to reach a conclusion that the visa applicant’s beliefs were not genuine. Buchanan J could see “no adequate basis for distinguishing SZHXF” from the case before him (at [103]) and hence felt “obliged” to exclude from the concept of “information” under s.424A the intermediate finding of fact that the applicant showed a lack of knowledge of Falun Gong by her answers and the process of comparison between the applicant’s answers and the factual statements with which those answers were compared. After having made such finding in relation to the analytical context of the Tribunal’s decision Buchanan J then made the point that:
The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.
It is this aspect of the decision in SZJBD on which the First Respondent placed particular reliance. However both SZHXF and SZJBD dealt with a body of factual material about a religious faith or movement and notable people involved in such organisations in the context of considering whether s.424A applied to a lack of expected knowledge of a faith or movement assessed by reference to such a body of independent material. SZJBD also considered whether s.424A applied to the comparison between an applicant’s answers and the independent material. In both cases reference was made to the relationship between matters which had been claimed to be “information” within s.424A and the Tribunal’s reasons, albeit to make the point that the Tribunal’s reasoning or thought processes underpinning the decision were not required to be disclosed to an applicant (see SZBYR at [18]).
In contrast, the material in issue in MZYIA was not independent information of the kind considered in SZHXF and SZJBD. Nor, however, was it on all fours with the material in issue in this case. In MZYIA an element of the applicant’s claim for protection was a claim that because he had renounced Islam while in Australia he would be harmed by extremist Muslims at the direction of his devout uncle who had become aware of the applicant’s views. He claimed that this uncle controlled the family assets and farm and had interfered with the provision of money to support his study in Australia. Of its own volition the Tribunal had obtained the Applicant’s student visa file which, relevantly, contained notes of an interview in which the Applicant had advised that he was no longer enrolled in a course of study because his family had financial problems and he did not have the funds to cover tuition fees.
In considering whether the applicant’s statement to the Department was information subject to the s.424A(1) obligation, Gray J suggested (at [24]) that what was said by the majority in SZBYR at [17] was “not easy to understand”. His Honour continued at [25] – [26]:
The foundation for the obligations cast on the tribunal by s 424A(1) is the formation by the tribunal of a state of mind, namely that “the tribunal considers” that some information would be the reason, or a part of the reason, for affirming the decision under review. What was said in SZBYR at [17] cannot have been intended to substitute for this subjective (to the tribunal) test an objective test that the information contain in its terms “a rejection, denial or undermining of” the claims of the applicant in question. The subjective effect of information in relation to an applicant’s claims may not always be apparent from the terms of that information. The essential question is how the tribunal proposes to use the information in its reasoning process. For instance, it is possible for the tribunal to misunderstand information, and to consider that the information would be the reason, or part of the reason, for affirming the decision to refuse a protection visa, when in fact the information has the opposite effect. Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 was such a case. There, the tribunal mistakenly thought that an item of news refuted the applicant’s claim that he had been campaigning for a candidate in a by-election. Read in its entirety and properly, the news item supported the applicant’s claim. Nonetheless, the tribunal having reached the requisite state of mind, it was held that it was obliged to comply with s 424A(1) in relation to the news item. See [29]-[34]. It is possible that the tribunal might propose to make use of information in a particular way to refute the claims of an applicant, whereas others might regard the same information as neutral, or as capable of assisting the claims of that applicant. The important question is not the objective effect of information but the state of mind of the tribunal, as to whether it “considers” that it would use the information against the applicant.
In this respect, the question of the use of the tribunal’s reasons for decision is important. It is true that the time at which the tribunal reaches the requisite state of mind about an item of information will precede the finalisation of its reasons for decision in any particular case. In most cases, the applicant will not have any means of access to the thought processes of the tribunal in relation to information as the tribunal proceeds to make its decision. The only possible source of evidence that the tribunal has formed the requisite state of mind will be the tribunal’s reasons for decision. Only by examining the tribunal’s disclosed process of reasoning, to see how it has made use of the particular information, can it be determined that, at some antecedent time, the tribunal must have reached the state of mind that it considered that the information would be the reason, or part of the reason, for affirming the decision under review. This is why, since SZBYR, it has been recognised that, although the reasons are not the starting point, it may be appropriate to refer to them to determine whether the Tribunal had the requisite state of mind. See SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121; [2009] FCA 99 at [16]-[18] and SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [38].
Gray J then turned to consider the Tribunal’s use of the notes of interview. His Honour pointed out that having obtained the Departmental file, the Tribunal was bound by s.424(1) to have regard to information in that file in making the decision on review and expressed the view that the fact that the Tribunal made specific reference in its reasons to some of the information in the notes of interview suggested that it thought that such information was relevant to determination of the applicant’s case. His Honour inferred that it “may be assumed” that in recording in its reasons for decision the claim that there had been difficulties on the farm that had led to reduced income (and to no other information from the student visa file) the Tribunal “was complying with its obligation to refer to the evidence or other material on which its findings of fact were based” (at [29] and see s.430(1)(d) of the Migration Act).
After considering the possible sources of evidence providing the evidentiary basis for the Tribunal’s findings about a drop in income available from the family farm, Gray J concluded that there was no reason for the Tribunal to mention the information in the notes of interview if it did not rely on it in making a relevant finding of fact and that the Tribunal had made use of information it obtained from the notes of interview in “refuting an important aspect” of the applicant’s claims (at [34]). In other words his Honour had regard to the Tribunal reasons in determining whether it could be inferred that at some antecedent time the Tribunal had reached the requisite state of mind for s.424A to apply.
His Honour found that it followed that “there had been a point at which the tribunal had reached the state of mind whereby it considered that the information in the notes of interview…would be part of the reason for affirming the decision under review” at which point the s.424A(1) obligations were enlivened (at [34]). His Honour found that the notes contained information that “undermined” the applicant’s claim that the availability of funds for his education had diminished because word of his rejection and criticism of Islam had reached his uncle. Gray J stated at [35]:
In the mind of the tribunal, it became information that would be part of the reason for affirming the decision to refuse a protection visa. The Tribunal so used it … [in] its reasons for decision.
Insofar as counsel for the Applicants contended that MZYIA illustrated that in determining whether information was information the Tribunal considers would be the reason or part of the reason for affirming the decision under review it was relevant to have regard not only to the terms of the information in question but also to how the Tribunal proposed to use the information in its reasoning process (MZYIA at [25]) and that normally this required an examination of the Tribunal’s reasons for decision (MZYIA at [28]), this is to be seen in light of the actual use Gray J made of the Tribunal reasons in drawing an inference as to whether the Tribunal had considered particular material was the reason or part of the reason for affirming the decision under review.
In MZYIA, Gray J found (at [35]), that the information given by the applicant in the process leading up to cancellation of his student visa, undermined an aspect of his claims to be a refugee. There was no suggestion that this was not a necessary requirement for any finding that s.424A(1) was enlivened. In SZBYR at [17] the majority of the High Court had expressed the view that the language of the section strongly suggested that the operation of s.424A(1)(a) was to be determined in advance and independently of the Tribunal’s particular reasoning on the facts of the case. However, as pointed out in MZYIA, where the only source of evidence that the Tribunal had formed the requisite state of mind was the Tribunal reasons for decision, some reference to the reasons of the Tribunal is permissible to see whether at an antecedent time the “...tribunal has formed the requisite state of mind” being that “it considered that the information would be the reason, or part of the reason, for affirming the decision under review” (at [26]). In contrast, in SZJBD the Minister conceded that the factual statements about Falun Gong in themselves had no feature or attribute which made them disclosable under s.424A. In other words it could not be inferred that the Tribunal had considered that such independent information was the reason or part of the reason for affirming the decision under review. The regard the Court in SZJBD had to the Tribunal’s reasons (the “analytical context” to which Buchanan J referred) was not such as to support any inference of the kind considered in MZYIA.
MZYIA was ultimately concerned with whether particular evidence attracted an obligation under s.424A of the Migration Act. It did not purport to overrule or directly contradict either SZJBD or SZHXF or, indeed, any prior judgment of the Federal Court after SZBYR. Gray J did not deal directly with the propositions in SZJBD at [104]. The approach taken in MZYIA does not preclude the essential reasoning ultimately evinced by Buchanan J as part of the majority of the Full Court in SZJBD at [104] to the effect that factual statements within independent country information will not be information attracting an obligation under s.424A of the Act if “…shorn of the analytical context in which they played their part” they “are neutral” in the sense that “[t]hey do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right” but “only have that significance when matched with answers given by the applicant” (emphasis added).
However what was in issue in SZHXF and SZJBD was information which was part of a body of information about a faith or organisation to which an applicant claimed to belong. Such primary facts did not of themselves conflict with the applicant’s claims in either case. Having found that the Tribunal’s reasoning process was not within s.424A(1) and that the independent evidence was inherently neutral, it was not necessary for Buchanan J in SZJBD to go on to determine whether such material would have been within s.424A(1) if it had been other than inherently neutral and in that context to make findings about whether the Tribunal considered the information to be the reason or part of the reason for the decision for affirming the decision under review.
It is notable however that, as Gray J pointed out in MZYIA, since SZBYR it has been recognised in other cases that although the Tribunal reasons are not the starting point, it may be appropriate to refer to them to determine whether the Tribunal had the requisite state of mind. Gray J specifically referred to SZMPT v Minister for Immigration and Citizenship and Another (2009) 107 ALD 121; [2009] FCA 99 and SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 in this respect.
In SZMPT at [15], Jacobson J had accepted that “...the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal” including the need for the kind of “unbundling” that the Federal Court had previously required. His Honour nonetheless expressed the view that the High Court was not saying that “in making an assessment of whether s424A(1) was engaged, a court can never have regard to the reasons of the Tribunal” and accepted (at [18]) that in a proper case the reasons may be used to draw inferences as to whether the Tribunal considered the information to be a reason for affirming the decision. Thus, in SZMPT the absence of reference by the Tribunal to particular information was taken to support the inference that the Tribunal did not consider the information to be relevant (at [18]). In addition, Jacobson J considered the absence of any reference to the information in question at the Tribunal hearing or in any document generated by the Tribunal during the review process relevant in drawing an inference that the Tribunal did not consider the information to be relevant.
Moreover in SZMPT at [17] Jacobson J approved the statement by Siopis J in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] that “...the assessment of whether the information enlivened the obligation of the Tribunal under s424A(1) is made by reference to the time at which the Tribunal becomes aware of this information” and is “...not dependent on the use that the Tribunal subsequently made of the information”, although later use by the Tribunal “may be a relevant consideration in drawing inferences as to the proper characterisation of the information”.
In the later case of SZMNP, in considering whether the Tribunal considered information provided by a third party to be the reason or part of the reason for affirming the decision under review, Jacobson J referred at [38] to the “tension” in the authorities as to what use could be made of the Tribunal’s reasons in determining whether the duty under s.424A(1) was enlivened. His Honour made it clear that he accepted that “...as the High Court said in SZBYR at [17], the question is to be determined in advance of, and independently from, the Tribunal’s reasoning” (at [39]).
Jacobson J also referred specifically to SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578; [2007] FCAFC 198 at [33] in which the Full Court had held:
The obligation to proceed pursuant to s424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision.
Thus, as the judgments of Gray J and Jacobson J indicate, consistent with SZBYR, the reasons of the Tribunal may, in an appropriate case, shed light in an evidential sense on the question of fact of whether, at an earlier time when any duty under s.424A(1) would arise, the Tribunal did in fact consider that particular information would be the reason or part of the reason for affirming the decision under review. Indeed the First Respondent conceded that reference to the Tribunal’s reasons as showing what counted against the Applicant (see SZLFX at [26]) was not inappropriate and not inconsistent with the approach taken in SZJBD.
Ultimately however the question is not simply how the Tribunal dealt with any “information” in its reasons, but rather whether it can be inferred that it considered at an antecedent time that any statement comprising “information” was the reason or part of the reason for affirming the delegate’s decision (see SZBYR at [17] and SZMPT at [17] referred to with approval in MZYIA at [26]). In this sense the question is to be answered “...in advance” and “independently of the Tribunal’s particular reasoning on the facts of the case” as discussed in SZBYR at [17].
MZYIA (and the judgments of Jacobson J cited therein) can be read consistently with the Full Court’s consideration of the effect of SZBYR in SZJBD and SZHXF. MZYIA should not be taken to be inconsistent with any legal principle in the cases relied upon by the First Respondent, in particular what was said by SZJBD at [104]. Rather it is an example of a case in which the Tribunal reasons were relevant to a determination of what the Tribunal considered at an earlier time.
In considering the issues in the present case, it is also relevant to have regard to the subsequent explanation of what was said in SZBYR provided by French CJ, Heydon, Crennan, Kiefel and Bell JJ in 2009 in SZLFX (which was cited in SZJBD). SZLFX involved a consideration of whether the contents of a file note recording information obtained by the Tribunal by telephone from a person within Falun Dafa in Sydney was within s.424A of the Act. The applicant had claimed to practice Falun Gong at a particular place in a group led by a Mr Li. The file note recorded that the person spoken to by the Tribunal officer was not aware of Mr Li being a leader and stated that they did not have leaders at practice sites. The Tribunal did not refer to the file note or to its contents in its reasons for decision.
Their Honours stated at [21] – [26]:
In SZBYR, it was stated that:
"Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of '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'."
Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a "rejection, denial or undermining" of the review applicant's claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT's failure to mention the file note.
This approach was, with respect, flawed given the following observations in SZBYR:
"[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). ... However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence."
As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's "consideration", that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had "considered" or had any opinion about the file note.
As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which "would", not which "could" or "might", be the reason or part of the reason for affirming the decision under review.
The RRT's reasons show that what counted against the first respondent were internal inconsistencies in his evidence. The RRT disbelieved the first respondent's evidence that he was a practitioner of Falun Gong because of the inadequacy of his testimony in recollecting matters the RRT would have expected him to recall, such as the content of lectures given to him by his mentor or details of the practice of Falun Gong. It was clear from the reasons of the RRT that adverse credibility findings arose from matters which were not subject to any obligation under s 424A. The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the first respondent cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him.
(Footnotes omitted).
In other words, the Court in SZLFX stressed that s.424A depends on the Tribunal’s “consideration” and had regard to the Tribunal reasons in the context of addressing whether an inference could be drawn that the Tribunal had “considered” that the file note would be the reason or part of the reason for affirming the decision under review. It did not proceed on the basis that information of that nature was inherently neutral. Thus, while their Honours accepted that to come within s.424A material should “in its terms” contain a “rejection, denial or undermining” of the Applicant’s claim to be a refugee, it was emphasised that what was in issue was whether it could be inferred (including by reference to the Tribunal reasons) that the Tribunal considered that certain information would be the reason or part of the reason for affirming the decision under review. Notably, their Honours also reinforced the views expressed in SZBYR at [18] in relation to disbelief of an applicant because of inconsistencies in the applicant’s evidence.
Similarly, in Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 French CJ and Kiefel J pointed out at [9]:
…the existence of "inconsistencies" and "contradictions" in an applicant's testimony and written submissions to the Tribunal is not "information" of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship, the term "information" in s 424A does not extend to the Tribunal's "subjective appraisals, thought processes or determinations"… an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s.424A.
Gummow J at [77] in SZGUR also referred at SZBYR at [15] – [21] in support of the proposition that the Tribunal’s disbelief of the visa applicant’s evidence arising from inconsistencies therein could not be characterised as “information” within the meaning of s.424A of the Act.
Thus, while factual information must in itself be contrary to an applicant’s claim to be a refugee to be in its terms “the reason, or part of the reason, for affirming the decision that is under review”, the application of s.424A(1) “depends” on the Tribunal’s consideration that certain information would be such reason or part of the reason. While this is assessed in advance and independently from the Tribunal’s reasoning (see SZBYR, SZLFX and SZKLG), insofar as it is a matter of inference, in an appropriate case regard may be had to the Tribunal reasons in the sense considered in SZLFX (as was done in SZMPT and SZMNP to which Gray J referred in MZYIA). However if it is apparent that the reason the Tribunal affirmed the decision under review was its disbelief of an applicant arising from inconsistencies in the evidence before the Tribunal, such inconsistencies do not constitute information and nor does the reasoning process of the Tribunal in relation to such matters. Where the only inference available is that the (relevant) part of the reason for the Tribunal’s decision was disbelief of an applicant’s claims arising from inconsistencies and contradictions in the evidence before the Tribunal then the Tribunal is not obliged to invite comment on the evidence from which the inconsistencies arose. There would seem to be no basis, at least in this case, to distinguish inconsistencies in evidence given by co-applicants from internal inconsistencies in the evidence given personally by one applicant.
In some circumstances information may be inherently neutral (such as independent country information or the date of arrival as considered in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68) such that the principle in SZHXF and SZJBD at [104] will apply because it will be apparent from the nature of the material that in its terms it would not be “the reason, or a part of the reason” for affirming the decision that a protection visa should not be granted. An example would be a body of material used by the Tribunal as part of its evaluation process to weigh and consider an applicant’s claims (SZHXF at [102]). However if factual material is not inherently neutral it is necessary to determine whether it is information “the Tribunal considers would be the reason, or a part of the reason,” for affirming the decision under review in the sense that it can be inferred that in itself such information was perceived by the Tribunal as information that rejected, denied or undermined the applicant’s claim to be a refugee.
In any event, in this case, whether regard is had to the criteria for making the decision or the Tribunal reasons for the decision (see SZFQY v Minister for Immigration and Citizenship [2009] FCA 935 at [28] per Flick J), it has not been established that the Tribunal breached s.424A in the manner contended for by the Applicants.
The first item particularised (particular (a)(i) in the Further Amended Application) was factual information given by the wife in her written statement to the effect that she had received one threatening phone call in each of 2007, 2008 and 2010. It was submitted that this information had to be put to the husband under s.424A(1). As this information related to phone call threats to and about the wife, it is difficult to see that it would be categorised as “in its terms” rejecting, undermining or denying the claims of another person, the husband, to be a refugee. In any event, the only inference to be drawn from the manner in which the Tribunal raised issues with the husband at the hearing and from its reasons for decision is that the material itself was not part of the reason for affirming the decision under review. It is the case that the Tribunal disbelieved the husband for reasons that (relevantly) included the “inconsistency” between his claim that the couple had been receiving threatening phone calls “all the time” and his wife’s claim that she had received only three threatening calls, as well as the fact that the wife’s account of the calls made no mention of her husband’s political activities and the fact that the Applicants had sought to change the nature of their claims in the course of processing of their application. However disbelief arising from such inconsistency is not within s.424A. The Tribunal is not obliged to put its subjective appraisals, or thought processes or inconsistences to an applicant under s.424A of the Act (see SZBYR at [18] and SZGUR at [9] and [77]).
The factual information in particular (a)(ii), consisting of a statement by the wife at the Tribunal hearing that the people who attacked her husband in Karachi in 2008 belonged to the MQM is not necessarily inconsistent with or such as to weaken the husband’s evidence that the attack on him could have been from the MQM or the Taliban. To the extent that the Tribunal saw such evidence as giving rise to an inconsistency that would not amount to “information” subject to the s.424A obligation (SZBYR at [18]). In fact the Tribunal reasons do not support an inference that the Tribunal considered that this aspect of the wife’s evidence would be part of the reason for affirming the decision under review in relation to the husband. The Tribunal referred to the fact that the husband’s evidence was “more equivocal”, in that he had stated that the attackers could have been from the MQM or the Taliban. However the Tribunal in fact considered both possibilities, but rejected the claim that the husband was attacked by the Talban or by the MQM for reasons unrelated to the wife’s evidence. Rather, the Tribunal’s reason for disbelieving this claim was that the Applicants had attempted to pass off an incident in which the husband suffered injury as a politically motivated attack. The only inference available is that the Tribunal did not consider the wife’s evidence about the source of the claimed harm to the husband to be the reason or part of the reason for affirming the decision in relation to the husband’s claims for protection (see SZLFX at [26]).
The material referred to in particular (a)(iii) is described as “information that neither the wife’s statement as to the threatening telephone calls nor a threatening letter” that she produced in support of her own claims made any reference to the husband’s political activities. However a gap or absence of evidence (or the Tribunal’s view in this respect) does not amount to information (SZBYR at [18]). Conversely, this cannot be said to be factual material that “in its terms” amounted to a rejection, denial or undermining of the husband’s claims to be a refugee at least in circumstances where the wife herself made claims to be a refugee.
Nor do the matters in paragraph (b) in the ground relied on by the Applicants enliven the s.424A(1) obligation. The husband’s oral evidence that the couple had been receiving threatening letters and telephone calls “all the time” (particular (b)(i)) is not in its terms a rejection, denial or undermining of the wife’s claims to be a person to whom Australia owed protection obligations (SZBYR at [17]), but in any event the only inference to be drawn from the Tribunal’s reasons is that while the inconsistency in the evidence in relation to the frequency of threats was part of the reason for disbelief of the wife, any inconsistency found by the Tribunal between the husband’s evidence and the wife’s evidence is not information to which s.424A(1) extends.
The husband’s oral evidence that an attack on him in Karachi in 2008 could have been from the MQM or the Taliban (particular (b)(ii)) does not in its terms constitute a rejection, denial or undermining of the wife’s protection claims. As indicated, any evaluation of an inconsistency would not constitute information within s.424A(1), but moreover it is clear from the Tribunal reasons that this aspect of the husband’s evidence about who attacked him was not information that the Tribunal considered would be the reason or part of the reason for rejecting the wife’s claims to be a refugee.
Finally, the husband’s oral evidence suggesting that he had been targeted by the Taliban because of his political activity (particular (b)(iii)) does not amount to a rejection, denial or undermining of the wife’s claims to protection. Indeed it may be seen as supportive of aspects of her claim. However it is apparent that the Tribunal did not accept that the wife has been targeted by the Taliban because of the husband’s political activity because this was not the case she had initially put forward. It cannot be inferred that the husband’s evidence that he had been targeted by the Taliban for his political activity was information that the Tribunal considered would be the reason or part of the reason for rejecting the wife’s claim to be a refugee.
When regard is had to the nature of the material in each of the particulars in both paragraphs of ground one and the Tribunal reasons (and what occurred at the hearing) it is apparent that at most some aspects of the evidence particularised became significant to the Tribunal only to the extent that they were evaluated as inconsistent with the other Applicant’s evidence. The reasons do not support any inference that at an antecedent time the Tribunal considered that any of the material particularised in itself constituted the reason or part of the reason for affirming the decision under review in relation to the other Applicant’s claim to be a refugee.
It has not been established that the Tribunal breached s.424A(1) of the Migration Act. Hence the application should be dismissed.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 17 April 2014
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