SZVCZ v Minister for Immigration
[2016] FCCA 2840
•4 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2840 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether particular information was relied on by the Tribunal – whether such information was information” within the meaning of s.424A of the Migration Act 1958 (Cth) (Act) – whether if such information was ”information” within the meaning of the Act it was information not specifically about the applicant or another person within the meaning of s.424A(3)(a) of the Act – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(2A), 424A(3)(a), 424AA(1)(a), 441A |
| Cases cited: SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 |
| Applicant: | SZVCZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2623 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2623 of 2014
| SZVCZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question that arises on this application for judicial review is whether certain information on which the second respondent (Tribunal) relied for affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa) was “information” within the meaning of s.424A of the Act and, if so, whether such information was information of the sort referred to in s.424A(3)(a), and thus was excluded from the operation of s.424A(1) of the Act.
To see how these issues arise, it is necessary to set out the applicant’s claims for protection, the Tribunal’s reasons for affirming the delegate’s decision, and the information on which the applicant submits the Tribunal relied and which the applicant submits was “information” within the meaning of and to which s.424A(1) applied.
Background
The applicant is a national of Pakistan, and a Sunni Muslim. He claimed that, although the applicant’s family are Muslim, the applicant’s grandfather, most of his grandfather’s children, and the applicant himself attended Christian schools. The applicant’s grandfather “developed close associations with the staff of the Christian educators and donated land to the organisation to expand their operations”.[1] Because of the applicant’s family association with Christians, “all three generations have suffered persecution from fundamentalist Muslim groups”, and the applicant, therefore, “has been seriously harmed and fears returning to Pakistan as he believes he would face further persecution”.[2]
[1] CB33
[2] CB34. The applicant set out his claims in a statutory declaration – CB58-62
Before the Tribunal, the applicant said his maternal grandfather donated five acres of land to the Baptist mission in 1982. The applicant also claimed that his mother donated land, as did the applicant’s mother’s cousin.[3] After these donations, the Muslim community turned against the applicant’s family. The applicant claimed his uncle went missing; in 1988, religious extremists burned down a dairy farm shed on land owned by his maternal grandfather; in 1994, fundamentalists laid siege to a house in which the applicant, his mother, and sister were staying during a holiday; in 2004 the applicant was attacked by people with long beards who looked like extremists, and that a few days later the extremists defaced the gate of his family’s house by painting a cross on it and they shouted they wanted to kill the applicant; in 2008 his neighbour and other extremists went to the applicant’s house and beat and injured all of his family members “saying that they had converted to Christianity”; in 2009 extremists broke into the applicant’s house and stole a mobile phone, jewellery and money; and in February 2011 the applicant and his mother were beaten by people who said the applicant and his mother were American spies. The applicant further claimed that, after he visited Australia and returned to Pakistan, he was not able to leave the house during the day and that, when he went out at night, people verbally abused him and beat him.[4]
[3] CB243, [4]
[4] CB244-245, [6]-[10]
The Tribunal did not accept the applicant’s claims for a number of reasons. One set of reasons on which it relied are those contained in the following passage from the Tribunal’s reasons for decision (Relevant Passage):[5]
As I put to [the applicant], I consider it relevant that Christian schools are considered among the best in Pakistan and are extremely popular with Muslim families, that Pakistan’s most prominent leaders including the current Prime Minister, Nawaz Sharif, attended Christian schools, that Forman Christian College, which he has said that his maternal grandfather attended, celebrated its 150th anniversary last year and that among the more than 2,000 guests were two of Pakistan’s five provincial governors . . . . [A]s I put to him, I consider that this information makes it difficult to accept that his family had the problems he claims because they donated land to a Christian mission in 1982.
[5] CB247, [19]
This passage is a reference to the following exchange that took place between the Tribunal and the applicant:[6]
[6] Affidavit of M R X Devine, 12.11.14, pages 21-22
MEMBER: Christian schools are extremely popular with Muslim families.
[THE APPLICANT] (INTERPRETER): No, the situation in Pakistan is very bad. All those incidents which have taken place in last [sic] few years with the Christians.
MEMBER: Pakistan’s most prominent leaders including the current Prime Minister Nawaz Sharif attended Christian schools.
[THE APPLICANT] (INTERPRETER): But when you look at the common man their problem because of these issues are different than a person of his status.
MEMBER: You’ve said that your maternal grandfather attended [name of school].
[THE APPLICANT] (INTERPRETER): Yes.
MEMBER: It celebrated its 150th anniversary last year.
[THE APPLICANT] (INTERPRETER): The college?
MEMBER: The college. Among the more than 2000 guests were two of Pakistan’s five provincial governors.
[THE APPLICANT] (INTERPRETER): I’m not aware of that.
Before I consider the competing submissions, it would be useful to set out the relevant provisions.
Section 424A and s.424AA of the Act
Subsection 424A(1) of the Act provides that, where there is “any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, the Tribunal must:
a)provide to the applicant “clear particulars” of “any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”;
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”,
c)“invite the applicant to comment on or respond to it”; and
d)where the applicant is not in immigration detention, give “the information and invitation” by one of the methods specified in s.441A of the Act, which means that the information and invitation must be recorded in a document that the Tribunal must give to the applicant by one of the methods specified in s.441A.
The duty to do the things required by s.424A(1) does not arise if the information is of the kind specified in s.424A(3) of the Act, namely 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.
The duty to do the things specified in s.424A(1) of the Act also does not arise in the circumstances provided for in s.424A(2A) of the Act, namely, if, when the applicant is appearing before the Tribunal because of an invitation under s.425 of the Act, the Tribunal orally gives 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” pursuant to s.424AA(1)(a) of the Act. In those circumstances, however, the Tribunal will be relieved of its duty to do the things specified in s.424A(1) of the Act only if the Tribunal does what is required by s.424AA(1)(b) of the Act; that is to say, only if the Tribunal:
a)ensures, “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
b)orally invites “the applicant to comment on or respond to the information” and
c)advises “the applicant that he or she may seek additional time to comment on or respond to the information”; and
d)if “the applicant seeks additional time to comment on or respond to the information”, the Tribunal adjourn “the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information”.
Submissions
The applicant submits that two items of information in the Relevant Passage constituted “information” to which s.424A(1) of the Act applies. These are “the current Prime Minister, Nawaz Sharif, attended Christian schools” and “that among the more than 2,000 guests” who had attended the 150th anniversary “were two of Pakistan’s five provincial governors” (Asserted Information). The applicant submits that, being “information” to which s.424A(1) of the Act applied, then, unless the Tribunal dealt with the Asserted Information in the manner required by s.424AA of the Act, the Tribunal was required to comply with s.424A(1) of the Act. The Tribunal, however, did not comply with s.424AA of the Act and it did not comply with s.424A(1) of the Act.
The Minister accepts the Tribunal did not do in relation to the Asserted Information that which s.424A of the Act requires or s.424AA of the Act permits the Tribunal to do in relation to information to which s.424A(1) applies. The Minister, however, makes two submissions. The first is that the Asserted Information is not “information” within the meaning of s.424A(1) of the Act because the Asserted Information did not constitute “in [its] terms a rejection, denial [or] undermining of the applicant’s claims”. The Minister submits that the Asserted Information was “part of the Tribunal’s reasoning process in its finding that Christian schools were prominent and well-respected in Pakistan”, and that “[c]onsidered discretely”, the Asserted Information did not have “any bearing on the applicant’s claims to have been targeted by extremists because his mother and grandfather donated land to the Christian mission”.[7]
[7] Submissions of First Respondent, [17]
The Minister’s second submission is that, if the Asserted Information is “information” within the meaning of s.424A of the Act, s.424A(1) of the Act does not apply to it because the Asserted Information is information that falls within s.424(3)(a). That is, the Minister submits the Asserted Information is information 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”.
Is the Asserted Information “information”?
For information to be “information” within the meaning of s.424A(1) of the Act, it must be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. In SZQQA v Minister for Immigration & Anor I made the following observations about this expression:[8]
a)The “information” to which s.424A(1) applies must be information the Tribunal has in its mind.
b)The “information” must be in the Tribunal’s mind as part of a chain of reasoning – as a premise in an argument – the conclusion of which is the affirmation of the decision under review.
c)The Tribunal must have in its mind the chain of reasoning of which the information forms part in advance of the Tribunal’s determination of the application for review before it.
d)The Tribunal intends to affirm the decision under review on the basis of the chain of reasoning of which the information forms part. It is that intention that triggers the obligations imposed by s.424A(1) of the Act.
e)The Tribunal’s intention is conditional. Before the Tribunal can act on its intention, and assuming the information does not fall within the category of information described in s.424A(3) of the Act, the Tribunal must do that which s.424A(1) requires the Tribunal to do. That is, the Tribunal must give the applicant particulars of the information, it must ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of its being relied on in affirming the decision under review, and invite the applicant to comment or respond.
f)If the applicant comments or responds to the invitation, the Tribunal must consider the comments and response, before it considers whether to carry through with its intention to rely on the information.
[8] [2014] FCCA 1923 at [8]
Thus, s.424A(1) requires the Tribunal to disclose to the applicant for the applicant’s comment full particulars of the information on which the Tribunal intends to rely as a premise or premises in a chain of reasoning, the conclusion of which will be the affirmation of the delegate’s decision, and to also disclose to the applicant for the applicant’s comment the chain of reasoning itself, that is, how the Tribunal intends, subject to submissions the applicant may make, to employ the information in reasoning which has as its conclusion the affirmation of the decision under review.
The meaning of the word “information”, as used in s.424A of the Act, has been considered in a number of cases. It has been held that the “information” to which s.424A(1) applies “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”.[9] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[10]
[9] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 (Finn and Stone JJ) quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).
[10] SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18])
A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) of the Act applies – being the formulation on which the Minister in the case before me relies - is that given by the High Court in SZBYR v Minister for Immigration and Citizenship.[11] In SZBYR the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”.[12] And in Minister for Immigration and Citizenship v SZLFX, the High Court said that for s.424A(1)(a) of the Act 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”.[13]
[11] (2007) 235 ALR 609
[12] (2007) 235 ALR 609 at page 615 ([17])
[13] (2009) 238 CLR 507 at page 513 ([22])
As I have noted elsewhere,[14] the presence of the words “in their terms” in the High Court’s formulation suggests that to fall within s.424A of the Act the information must on its face disclose a rejection, denial or undermining of a claim. Taken literally, that formulation implies that the information itself must contain some reasoning which links the information to the applicant’s claim. But that cannot be what the High Court intended the expression to cover. As I have concluded elsewhere,[15] the information that is caught by s.424A of the Act is “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. Thus, it must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or is evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection. In short, the information must be an evidentiary premise on the basis of which, or partly on the basis of which, the Tribunal intends to rely to affirm the decision under review.
[14] SZQQA v Minister for Immigration & Anor [2014] FCCA 1923 at [13]
[15] SZQQA v Minister for Immigration & Anor [2014] FCCA 1923 at [14]
The first question, then, is whether the Asserted Information constitutes an evidentiary premise or premises the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision. That question is to be determined by reference to what the Tribunal said to the applicant during the hearing about the Asserted Information, and what the Tribunal said in its reasons for decision.
Turning first to the hearing, the Tribunal first referred to “Pakistan’s most prominent leaders” attending Christian schools, giving as an example the current prime minister. The Tribunal then referred to two provincial governors being present at the 150th anniversary of a particular school. In my opinion, the Tribunal specified the individuals as examples of a class of persons. The relevant information the Tribunal had in mind, therefore, was a class of persons, namely, “Pakistan’s most prominent leaders”. That is the information the Tribunal considered would be the reason, or part of the reason for affirming the decision under review. The information was not the three individuals the Tribunal identified. The Tribunal referred to these individuals as examples of members of the class of “Pakistan’s most prominent leaders”.
The same conclusion follows when one turns to what the Tribunal said in its reasons for decision. The Tribunal said it considered it relevant that, among other things, “that Pakistan’s most prominent leaders including the current Prime Minister, Nawaz Sharif, attended Christian schools”, and that two of Pakistan’s five provincial governors attended a 150 year anniversary of a Christian school. Again, the relevant information the Tribunal had in mind was “Pakistan’s most prominent leaders”. The Tribunal referred to the current prime minister and the two provincial governors who attended the anniversary as examples of members of the class of “Pakistan’s most prominent leaders”.
It follows, therefore, that the Asserted Information was not “information” within the meaning of s.424A(1) of the Act. If there was any information which the Tribunal considered would be the reason or part of the reason for affirming the decision, it was that that a particular class of persons, namely, Pakistan’s most prominent leaders, attended a Christian school.
Did the Asserted Information fall within s.424A(3)(a)?
Given my conclusion that the Asserted Information is not “information” within the meaning of s.424A of the Act, it is not necessary for me to consider whether it falls within s.424A(3)(a). In this section of my reasons, however, I will assume that the Asserted Information is “information” within the meaning of s.424A of the Act, and will consider whether the information falls within s.424A(3)(a) of the Act. That is, I will consider whether the Asserted Information 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”.
The proper construction of s.424A(3)(a) has been considered by the Federal Court on a number of occasions. In VJAF v Minister for Immigration and Multicultural and Indigenous Affairs, the Full Federal Court did not accept a submission to the effect that s.424A(3)(a) contains two criteria that must be satisfied before the Tribunal is relieved of its obligation to comply with s.424A(1) of the Act. The Full Court said:[16]
The major premise of the second contention, as the appellant accepted, is that s 424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation. Such a construction of the paragraph has been rejected by previous Full Courts. The true construction of the paragraph is one whereby:
reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
That was the view of the unanimous Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since.
[16] [2005] FCAFC 178 at [15] (Black CJ, Sundberg and Bennett JJ)
Further, in Minister for Immigration and Citizenship v SZHXF the Full Federal Court said:[17]
In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member””.[18]
[17] [2008] FCAFC 36 at [19] (Tamberlin, Gyles, and Stone JJ) (emphasis in original)
[18] Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 at [19] (Tamberlin, Gyles, and Stone JJ) (emphasis in original)
The question, therefore, is whether the Asserted Information – namely, the current Prime Minister attended Christian schools and two of Pakistan’s five provincial governors – is “specifically about an applicant or another person”. Mr Dobbie, who appeared for the applicant, submitted that the Asserted Information was about the three individuals – the current prime minister and the two provincial governors. Counsel for the Minister, on the other hand, submitted that the Tribunal referred to these three individuals as members of a class. In my opinion, the Asserted Information was not specifically about the current prime minister or the two governors. The Asserted Information was about the class of which the Tribunal identified these persons to be members, namely, “Pakistan’s most prominent leaders”. That is so because the purpose for which the Tribunal mentioned these three persons was to provide an example of members of the class of “Pakistan’s most prominent leaders”. This conclusion is reinforced by the fact that, although the Tribunal named the current prime minister, the Tribunal did not name or otherwise identify the two provincial governors. Their precise identity was irrelevant to the Tribunal. What was relevant to the Tribunal was their membership of the class of “Pakistan’s most prominent leaders”.
Conclusions and disposition
The Asserted Information is not “information” within the meaning of s.424A of the Act. Even if it were, the Asserted Information was not information specifically about the applicant or another person; it was about the class of persons - “Pakistan’s most prominent leaders” - of whom the three individuals referred to by the Asserted Information were considered by the Tribunal to be members. If the Asserted Information, therefore, was “information” within the meaning of s.424A(1) of the Act, it fell within s.424A(3)(a) of the Act, which means the Tribunal was not obliged to do in relation to the Asserted Information that which s.424A of the Act requires it to do to information to which s.424A(1) otherwise applies.
It follows, therefore, that the application will be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 4 November 2016
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