SZUXO v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1811

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal failed to comply with s.424AA – whether Tribunal failed to comply with s.424A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424A, 476

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190

Applicant:

SZUXO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2262 of 2014

Judgment of:

Judge Nicholls

Hearing date:

9 June 2016

Date of Last Submission:

9 June 2016

Delivered at:

Sydney

Delivered on:

18 July 2016

REPRESENTATION

Solicitors for the Applicant:

Mr N Dobbie of Dobbie and Devine Immigration Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Piper

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 12 August 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2662 of 2014

SZUXO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 August 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 16 July 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Ma Rosario Xiella Devine, solicitor, affirmed on 20 October 2014, annexing a copy of the transcript (“T”) of the hearing before the Tribunal.

Background

The applicant is a citizen of India. He arrived in Australia on 5 April 2009 as the holder of student visa (CB 14 to CB 15 and CB 67.1). He applied for a protection visa on 6 August 2013 (CB 1 to CB 29).
The applicant’s claim to protection was based on a religious ground, as a Sikh who had married a Hindu. He claimed to fear harm from his wife’s family because of this religious difference. He also claimed that the Indian authorities would not protect him. Further, that as a particular caste of Sikh, Mazbi Sikh, he would face harm.
Relevant to the grounds of the application before the Court, the applicant had also made a number of applications for other visas after his arrival in Australia.
The applicant had applied for review of the decision to cancel his student visa. This was the subject of review by the then Migration Review Tribunal which, on 4 July 2011, affirmed the decision to cancel that visa (“the Delofksi decision”). This was also the subject of judicial review (CB 45).
The applicant had also applied for a medical treatment visa which was refused on 23 March 2013 and this decision was also the subject by review of the then Migration Review Tribunal (CB 37) (“the Barnetson decision”).
The delegate refused the application for the protection visa on 3 February 2014 (CB 61 to CB 78). The delegate found that the applicant’s claims to fear harm on return to India were not credible (see in particular at CB 73.5).
The applicant applied for a review to the Tribunal on 26 February 2014 (CB 79). He attended a hearing before the Tribunal on 10 July 2014 (CB 121 to CB 123).
The Tribunal found that the applicant was not a credible witness and that his claims were “opportunistic and made so as to prolong his stay in Australia” ([27] at CB 146). The Tribunal found that the applicant had not been threatened by his wife’s family as he had claimed ([27] at CB 146). It did not accept that his wife was estranged from her family ([25] at CB 146). It did not accept the applicant’s explanation as to why the wedding occurred in Amritsar, India, where his wife’s family lived ([26] at CB 146). The Tribunal also did not accept that the applicant would face any form of harm as a Mazbi Sikh, with reference to country information ([28] at CB 146 to CB 147). The Tribunal affirmed the delegate’s decision.

Application Before the Court

The grounds of the application are in the following terms:
“1. The Tribunal failed to comply with s424A of the Migration Act 1958
Particulars:
(A) The Tribunal failed to comply with s424A of the Migration Act 1958 (‘the Act’).
(i) Section 424A relevantly provided:
Section 424A. Information and invitation given in writing by Tribunal
424A. (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.
(ii) The Tribunal relied on the following information, as a reason or part of the reason for affirming the delegate's decision:
(a) The decision record of Member Delofski, made on 4 July 2011, relating to a student visa application made by the Applicant.
(b) The decision record of Member Diane Barnetson made on 17 July 2013, relating to a medical treatment visa application made by the Applicant.
(c) Records of the Department of Immigration and Border Protection, relating to the Applicant's initial student visa application and (alleged) 'fake' financial documents.
(d) PRISMS records relating to the Applicant.
(e) Comments and claims made by the Applicant in his visa applications lodged with the Department of Immigration and Border Protection before the lodgment of his Protection visa application.
(f) Comments and claims made by the Applicant in his application for review at the Migration Review Tribunal in relation to a student visa application that he made and which was refused by a delegate of the Minister and subsequently affirmed by that tribunal.
(g) Comments and claims made by the Applicant in his application for review at the Migration Review Tribunal in relation to a medical treatment visa application that he made and which was refused by a delegate of the Minister and subsequently affirmed by that tribunal.
(iii) The Tribunal relied any or all of the information at Particular (ii) above to find that the Applicant was not a credible witness.
(iv) It then concluded, based on these credibility findings, that it was not satisfied that either there was a real risk that the Applicant would suffer significant harm should the Applicant be returned to India, or that there was a real chance of serious harm for a Refugees Convention reason, should the Applicant be returned to India.
(v) Subsections 424A(1)(b) and 424A(1)(c) required the Tribunal to ensure, as far as was reasonably practicable, that the Applicant understood why the information at Particular (ii) was relevant to the review, the consequences of it being relied on in affirming the decision that is under review, and to invite him to comment on or respond to the information. The Tribunal failed to do so, thereby committing jurisdictional error.
2. The Tribunal failed to comply with s424AA of the Migration Act 1958
Particulars:
(A) The Tribunal failed to comply with s424AA of the Migration Act 1958 (‘the Act’).
(i) Section 424AA relevantly provided:
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so-the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(ii) In the event that the Tribunal is found to have provided the information contained in particular (ii) of Ground 1 above, the Tribunal failed to advise the Applicant that he or she may seek additional time to comment on or respond to the information, despite its obligation to do so by virtue of s424AA(b)(iii). That failure constitutes jurisdictional error.”

Consideration

The applicant’s ground one and the submissions in support are predicated on the belief that all the matters listed at ground 1(A)(ii)(a) – (g) are “information” for the purposes of s.424A(1)(a) of the Act. The ground asserts jurisdictional error because the Tribunal failed to comply with s.424A(1)(b) and (c) of the Act.
The Minister’s response is that none of the matters listed are “information” for the purposes of s.424A of the Act, and therefore consideration of whether there has been jurisdictional error in relation to s.424A(1)(b) and (c) of the Act is not appropriate.
In his written submissions, the applicant referred in large part to the fact that the Tribunal referred to the Delofski decision, the Barnetson decision and matters from the Minister’s Departmental records dealing with other applications made by the applicant. He also relied on parts of what was discussed at the hearing with the Tribunal, particularly in relation to the applicant having provided fake financial documents in an earlier visa application.
I agree with the Minister that the applicant has not satisfactorily explained how these items on which he relies can be said to be “information” for the purposes of s.424A of the Act. Nor has the applicant provided any satisfactory response to the Minister’s submissions that they are not.
As the Minister submitted, none of the items on which the applicant relies can be said to meet the requirement, as explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) at [17], that to be constituted as information for the purposes of s.424A of the Act the items in question must constitute in their terms a rejection, denial or undermining of an applicant’s claim to protection (see Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 (“SZTJF”) at [30] – [32]).
Before the Court, in oral submissions, the applicant sought to explain the proposition that the items at (a) and (b) of particular (A)(ii) to ground one were “information” for the purposes of s.424A(1)(a), as follows.
In its decision record, the Tribunal referred to the whole of the Delofski and Barnetson decisions. In this regard, the applicant referred to [24] (at CB 146) of the Tribunal’s decision record. The applicant’s oral submissions before the Court focussed on the Barnetson decision, but I understood that he intended the same arguments to apply to the Delofski decision.
The Barnetson decision related to the applicant’s application for a medical visa. In that decision, the Tribunal member found that the applicant did not need to remain in Australia for medical, or any related, purposes (see [16] at CB 39).
In MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 (“MZZZW”), the Full Court had before it a Tribunal decision where the question raised was whether the Tribunal member had “copied” or adopted substantial parts of a previous Tribunal decision. The Full Court found that (MZZZW at [94]):
“…In a review where some use is sought to be made of findings of a previous tribunal in respect of the same review applicant, falling short of an abdication of the tribunal’s task (and assuming such a technique could be lawfully adopted) we consider that compliance with s 424A is required.”
The applicant submitted that similarly in the current case the Tribunal’s reliance on the whole of the decision meant that the Tribunal’s decision and the findings in it, required compliance with s.424A(1) of the Act.
There are a number of significant difficulties with the applicant’s submissions in this regard. These include the proposition that the Tribunal relied on the “whole” of the Barnetson decision, and whether, in any event, that decision said anything that would be said to deny or undermine the applicant’s claim to protection in Australia (see further below).
In relation to all the items at particular (A)(ii) to ground one, the applicant’s submissions were as follows. At the hearing with the applicant the Tribunal made reference to information that it said would be the reason or a part of the reason for affirming the delegate’s decision. This was said by the Tribunal to be the Delofski decision and the Barnetson decision records (items (a) and (b)) some departmental and PRISMS record (items (c) and (d)) and comments made by the applicant ( items(e), (f) and (g), see T25 to T26).
The applicant submitted before the Court that the Tribunal purported to use the facility at s.424AA of the Act to discharge the obligation at s.424A(1) of the Act. In that context, the Tribunal’s finding that the material (as referred to in the particulars to the ground) undermined the applicant’s claim to protection “changed” this material to “information” for the purposes of s.424A of the Act.
For the following reasons none of the matters raised in the particulars to ground one can be said to be “information” for the purposes of s.424A(1) of the Act.
As set out above, the applicant’s claim to fear harm was centred on his inter-religious marriage, and claimed fear of harm from his wife’s family. Having regard to relevant authorities, none of the matters listed in the applicant’s ground come within the meaning of “information” for the purposes of s.424A of the Act.
It is the case that the High Court in SZBYR referred to the temporal focus of the wording of s.424(1) of the Act. That is, information that “would be” the reason or a part of the reason for affirming the delegate’s decision. The phrase “would be” contemplates a time antecedent to the drafting of the decision record.
The applicant’s submissions did point to such a time, that is, what was said at the Tribunal hearing. However, that is not sufficient to establish the relevant statutory test. Not everything that is discussed at a hearing can be immediately said to be information that would be the reason or a part of the reason for affirming the delegate’s decision. As was said in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 (“SZTGV”) at [18]:
“…the information must be information that ‘would’, not ‘could’ or ‘might’, be the reason or part of the reason for affirming the decision under review…”
In that light, the matters discussed at the hearing may fall within what “could” or “might” be the reason, but without a connection to any involvement in the rejection, denial or undermining of the applicant’s claims dependent on his inter-religious marriage and his spouse’s family’s opposition to it, it cannot be said that such items would be the reason or a part of the reason.
Notwithstanding the temporal focus of “information” for the purposes of s.424A of the Act, the applicant’s submissions rely on the Tribunal’s decision record to submit that the Tribunal based its adverse credibility finding on these items. Therefore, what is implicit in his argument is that s.424A of the Act was engaged.
However, as was said by the High Court in SZBYR at [18] and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”), and made clear by the Full Court in SZTGV at [18], the Tribunal’s “prospective reasoning process” does not come within the meaning of “information” in s.424A of the Act. In the current circumstances, therefore, the Tribunal’s adverse credibility findings were not information for the purposes of s.424A of the Act.
Each item set out in the applicant’s ground does not contain “in their terms a rejection, denial or undermining” (SZBYR at [17]) of the applicant’s claims. The items also do not survive scrutiny that any of them were “the reason or a part of the reason for affirming the delegate’s decision”. As was made clear in SZBYR at [19], s.424A of the Act is not “engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence”.
Further, material that goes to an applicant’s credit is not of itself “information” that constitutes a rejection, denial or undermining of an applicant’s claims (MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [27], SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [35] – [36] and SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 (“SZTNL”) at [52]).
As stated above, the applicant’s ground and submissions make reference to all of the decision record of the Delofski and Barnetson decisions. However, the only significant reference made by the Tribunal to these decision records is that the Tribunal raised with the applicant at the hearing that in those earlier matters he had made “no mention” of any concerns about returning to India as he was now making before the Tribunal. As the Minister submitted, an absence of information is not “information” for the purposes of s.424A of the Act (SZTGV at [103] and [134]). Items (e), (f) and (g) of the particular to the ground cannot, in this light, be said to fall within s.424A of the Act.

It is the case that at the hearing the Tribunal raised with the applicant that he had allegedly given false documentation to the Minister’s department in relation to an earlier visa application. The Tribunal acknowledged in its decision record that this was discussed at the hearing when it set out its account of what occurred at the hearing (see [16] at CB 144).
However, the Tribunal’s reasons for affirming the delegate’s decision can be fairly understood as set out at [24] (at CB 146) to [35] (at CB 147) under the hearing “Consideration of Claims and Evidence”. This item in the applicant’s particulars on its face may be initially seen as a reason or a part of the reason for affirming the delegate’s decision. However, given the absence of any reference to the matter of false documents in this analysis by the Tribunal, it can not be said that it “would be” the reason or a part of the reason for affirming the delegate’s decision.
Similarly, the “PRISMS records” are not mentioned anywhere in the decision record and again are not “information” within the meaning of that term in s.424A of the Act.
In all, none of the items set out at particular (A)(ii) to ground one come within the meaning of “information” for the purposes of s.424A of the Act. As s.424A is not engaged, then the applicant’s reliance on s.424A(1)(b) and (c) of the Act cannot succeed. Ground one does not reveal jurisdictional error on the part of the Tribunal.
Ground two asserts that the Tribunal failed to comply with s.424AA of the Act. As the Minister submitted, such an allegation is only relevant if the obligation in s.424A(1) of the Act was engaged. Any perceived breaches of s.424AA of the Act cannot be seen as an independent basis to jurisdictional error separate to s.424A of the Act (SZTGV at [49] and [57] and SZTJF at [27] – [29]). Section 424AA of the Act is a facility to discharge the Tribunal’s obligation under s.424A of the Act once that obligation arises (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
The applicant’s submissions appear to assert that because the Tribunal attempted to put those matters set out at ground one to the applicant at the hearing, the Tribunal considered that these items were information for the purposes of s.424A of the Act, and it attempted to utilise s.424AA to discharge the relevant obligation.
The applicant’s argument that the Tribunal’s conduct at the hearing in relation to purporting to use s.424AA of the Act can be taken to have enlivened s.424A(1) of the Act must be rejected (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30], SZTJF at [32] and SZTNL at [49]). Ground two is not made out.

Conclusion

Neither ground in the application is made out. The application should be dismissed. I will make an order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 18 July 2016

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established