SZVSP v Minister for Immigration

[2016] FCCA 1339

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1339

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – whether the Tribunal breached s.424A of the Migration Act by failing to disclose certain oral information the applicant gave to the Minister’s department considered.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 441A

Cases cited:

Minister for Immigration v SZFLX [2009] HCA 31

Minister for Immigration v SZLFX (2009) 238 CLR 507

MZXBQ v Minister for Immigration [2008] FCA 319

SAAP v Minister for Immigration [2005] HCA 24; 228 CLR 294

SZBYR v Minister for Immigration [2007] HCA 26; 81 ALJR 1190

SZQDR v Minister for Immigration [2016] FCA 543

SZSOG v Minister for Immigration [2014] FCA 1053

SZUMS v Minister Immigration [2016] FCA 542

SZVGQ v Minister for Immigration & Anor [2016] FCCA 73; 304 FLR 273

SZVJY v Minister for Immigration & Anor [2016] FCCA 81

SZVJY v Minister for Immigration [2016] FCA 618

Applicant: SZVSP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3288 of 2014

Judgment of: Judge Driver

Hearing date:	2 June 2016
Date of Final submissions:	29 June 2016

Delivered at: Sydney

Delivered on: 1 August 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Law

Counsel for the Respondents: Mr B O'Donnell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 26 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3288 of 2014

SZVSP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 31 October 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. In summary, the applicant claimed to fear harm as a ship deserter if he were to return to his native Egypt.  The delegate found that the treatment the applicant claimed to have received did not amount to persecution[1]. The applicant elaborated on these claims before the Tribunal, but these elaborated claims were disbelieved by the Tribunal on credibility grounds[2]. 

   [1] Court Book (CB) 122-123.

   [2] CB 157.

4. On 18 October 2013 the applicant had applied for a Class XA (Protection) visa[3].

   [3] CB 1-46.

5. On 10 February 2014 the applicant was invited to attend an interview with a delegate of the Minister to take place on 6 March 2014[4].

   [4] CB 63-65.

6. On 17 March 2014 the delegate decided to refuse the application[5].

   [5] CB 107-127.

7. On 1 April 2014 the applicant applied to the Tribunal for review of the delegate's decision[6].

   [6] CB 128-129.

8. On 30 October 2014 the Tribunal conducted a hearing of the application for review[7].

   [7] affidavit of Winnie David.

9. On 31 October 2014 the Tribunal decided to affirm the delegate's decision[8].

   [8] CB 148-164.

The present application

1. These proceedings began with a show cause application filed on 26 November 2014.  The applicant continues to rely upon that application, which raises the following single ground of review:

   The Tribunal failed to comply with the exhaustive statement of the natural justice hearing rule in Division 4 of Part 7 of the Act by not complying with the requirements of s 424A or otherwise s 424AA of the Act.

   Particulars

   The Tribunal considered that information given orally by the Applicant to the Minister's Department would be the reason or a part of the reason for affirming the decision under review. The Tribunal failed to give the Applicant clear particulars of that information in a way that conformed s 424A and the manner in which the Tribunal referred to the information at the hearing did not comply with the requirements of s 424AA.

2. In addition to the court book filed on 19 June 2015, I have before me as evidence the affidavit of Winnie David made on 31 March 2015, to which is annexed a transcript of the Tribunal hearing conducted on 30 October 2014. 

3. Both the applicant and the Minister made both written and oral submissions. 

4. As a result of oral argument, I invited further submissions from the parties following the trial in respect of two authorities which had not previously been considered by the parties.  Further submissions were received on 16 June 2016 from the applicant and on 29 June 2016 from the Minister.   

Consideration

1. The Tribunal’s adverse credibility findings appear at [60]-[62] of its decision record[9]:

   In this instance, the Tribunal has a number of concerns about the applicant’s credibility. While the Tribunal accepts that the applicant was dissatisfied with conditions on his ship and for that reason deserted, the Tribunal formed the view that other matters advanced by the applicant have been embellished and developed subsequently.

   The Tribunal is satisfied that the applicant has fabricated or substantially embellished the question of any specific threats against him.  The Tribunal accepts that after the applicant left the ship, his sister in Egypt was contacted, warned that the applicant should not make trouble for the company, and was obliged to honour the undated cheques previously provided as surety for good behaviour.  The Tribunal is not satisfied that there have been any further contacts or threats or demands for additional money.

   In his original application and statutory declaration the applicant stated that Hassan Vito had contacted his sister in Egypt in April and September 2013, in April 2013 to threaten that the applicant should not make complaints and in September 2013 to demand (and receive) payment of money.  At the subsequent interview with the delegate the applicant now insisted that it was in September 2013, when Hassan Vito returned to Egypt, that he first approached the applicant’s sister and threatened her that the applicant should not make any complaints.  At the hearing before the Tribunal, the applicant now stated that when Vito returned to Egypt in September 2013 he had not made any threats because although he tried to contact the applicant’s sister he could not do so as she had changed her address.

   [9] CB 157.

2. Essentially, the Tribunal was concerned that the applicant’s material evidence in relation to threats made to his sister had changed over time.  In his written claims, the applicant said that there were two threats.  Before the delegate he claimed that there was only one.  At the Tribunal hearing, the applicant stated that there were no threats.

Applicant’s contentions

1. Section 424A(1) of the Migration Act 1958 (Cth) (Migration Act) requires the Tribunal to give to an 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. Although certain information given by the applicant during the process leading to the decision under review is exempt under s.424A(3)(ba), the exemption does not extend to information that was provided orally to the Minister's Department. The information which the Tribunal said was given at an interview with the delegate did not come within the exemption.

2. The information must either be provided in writing (s.424A(2), by reference to s.441A), or may be given orally at the hearing pursuant to s.424AA. There was no written notification given to the applicant under s.424A(2).

3. Section 424AA(1)(b) sets out requirements that must be complied with if the Tribunal chooses to give the information to an applicant orally at a hearing. The relevant information in this case was mentioned by the Tribunal at the hearing[10] but none of the requirements of s.424AA(1)(b) were complied with.

   [10] Transcript, page 4, lines 24-36.

4. The information as understood by the Tribunal undermined the applicant's claims to be a person to whom Australia owed protection obligations, and therefore was information of the kind to which s.424A applied[11].

   [11] SZBYR v Minister for Immigration [2007] HCA 26; 81 ALJR 1190 at [17] (SZBYR).

5. It is common ground that, by reference to the transcript, there was no disclosure of the asserted “information” orally at the Tribunal hearing pursuant to s.424AA of the Migration Act.

6. By relying on the information that the applicant had made different claims to the delegate at the interview without complying with the provisions of the Migration Act, the Tribunal failed to comply with a required statutory procedure and therefore constructively failed to exercise its jurisdiction to review the delegate's decision.

7. In SAAP v Minister for Immigration[12] Kirby J at [171] made it clear that a finding on “a complaint of procedural fairness under the general law” was unnecessary once a breach of the statutory duty had been made out. Hayne J made a similar point at [208]. McHugh J at [77] expressly disapproved of “the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act”, and at [80] His Honour limited the circumstances in which the discretion to refuse relief may be exercised despite a finding of jurisdictional error to two types of cases: where “the conduct of the party is inconsistent with the application for relief”, for example where there is delay, waiver, or acquiescence, or the party does not have clean hands; or where “the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome”. Neither of those circumstances apply here.

   [12] SAAP v Minister for Immigration [2005] HCA 24; 228 CLR 294.

8. Pursuant to orders made by the Court on 2 June 2016, the applicant makes the following further submissions in respect of these authorities:

   a)SZVGQ v Minister for Immigration & Anor [2016] FCCA 73; 304 FLR 273 (SZVGQ)

   b)SZVJY v Minister for Immigration & Anor [2016] FCCA 81 (SZVJY(1))

   c)SZVJY v Minister for Immigration & Anor [2016] FCA 618 (SZVJY(2))

9. In SZVGQ an applicant before the Tribunal claimed to fear persecution as a homosexual. He gave evidence at the hearing that he had been living alone for some time. At the same hearing, a witness called by the applicant gave evidence that the applicant was living with a married couple from the same country of origin as the applicant. The Tribunal brought the discrepancy to the applicant’s attention and asked him to comment, but did not do so in the manner prescribed by s.424AA of the Act. The Tribunal found that the applicant had been untruthful in his evidence and that this fact undermined his credibility.

10. The Minister argued that the information provided by the witness did not contain, it its terms, a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations, in reliance on SZBYR v Minister for Immigration  (SZBYR).[13]

    [13] [2007] HCA 26; 81 ALJR 1190.

11. The FCCA said at [29]:

    I cannot accept that the direct contradiction of the applicant’s evidence by his witness on an issue the Tribunal plainly regarded as material to the applicant’s credibility was not a “rejection, denial or undermining” of the applicant’s evidence. The witness did not say directly that the applicant was a liar but that was plainly the conclusion the Tribunal drew from the witness’s evidence.

12. The applicant submitted that this is a correct application of the interpretation given by the High Court in SZBYR. Information takes meaning from its context. A particular piece of information may be neutral in isolation, but to the extent that it contradicts a claim made by the applicant it undermines the applicant’s claims, and thus becomes a part of the reason for affirming the decision under review.

13. In SZVJY(1) the applicant before the Tribunal had referred to certain establishments which he claimed to be familiar with as evidence of his familiarity with homosexual culture in Sydney. The Tribunal obtained evidence of the type of business carried on by one of the establishments which it said contradicted the applicant’s claims. It did not put the information to the applicant in the manner prescribed by s.424AA.

14. The FCCA held that the information was not relied on by the Tribunal and did not come within s.424A(1), and in any event it was information that was excluded from the operation of the section by s.424(3)(a).

15. On appeal in SZVYJ(2), North J said at [20]:

    In my view, the Federal Circuit Court was in error in holding that the evidence concerning The Toolshed was not information within s 434A(1). The existence of The Toolshed as a gay venue was information which the Tribunal considered would be part of the reason for affirming the decision under review. It is not information reflecting the Tribunal’s thinking process, and it was adverse to the appellant. It was not, therefore, excluded from the concept of information by the judgments in SZBYR or SZLFX. Further, as the Tribunal had regard to the information, contrary to the view of the Federal Circuit Court the circumstances were quite different form the circumstances in SZLFX. This analysis is not altered if the evidence in question is characterised, as the Federal Circuit Court did, as the appellant’s knowledge of The Toolshed venue.

16. Again, the undermining effect of the information arises from its context, as information which undermines the applicant’s claims by bringing his credibility into question.

17. In respect of the matter currently before the Court, the applicant submitted that the information given by the applicant at the interview with the delegate, which is not excluded from the operation of s.434A because it was given orally, was information that, in context, the Tribunal considered to have an undermining effect of the applicant’s credibility and was therefore information that the Tribunal considered would be part of the reason for affirming the decision under review.

18. The information in this case is “indistinguishable in its nature” from the information found to be covered by s.424A(1) in SZVGQ and SZVJY(2). Unlike the information in SZVJY(2), it was not covered by any of the exclusions in s.242A(3). The Tribunal should have dealt with it in accordance with s.242AA. Its failure to do so constituted jurisdictional error.

The Minister’s contentions

1. As discussed in the Minister’s earlier written submissions and in oral submissions at the hearing, in SZBYR the High Court established a distinction between two types of material for the purposes of the concept of “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” in s.424A of the Migration Act (“s 424A information”).[14] For convenience these two types of material can be labelled as follows:

   a)Claims material: The obligations in s.424A apply to material that directly and in its terms constitutes or contains a rejection, denial or undermining of the applicant’s claims to meet the relevant visa criteria.[15]

   b)Credibility material: The obligations in s.424A do not apply to material that would not, if believed, directly and in its terms contain a rejection, denial or undermining of the applicant’s claims to meet the relevant visa criteria but instead only harms the applicant’s case because of doubts, inconsistencies with other evidence or the absence of evidence.[16]

   [14] SZBYR at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), followed in Minister for Immigration v SZLFX (2009) 238 CLR 507 at [21]-[26] (French CJ, Heydon, Crennan, Kiefel and Bell JJ), SZUMS v Minister Immigration [2016] FCA 542 and SZQDR v Minister for Immigration [2016] FCA 543.

   [15] see SZBYR at [17].

   [16] see SZBYR at [18].

2. The foundation for the High Court making this distinction is the terms used in s.424A(1)(a) itself: “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”.[17] As a result, the High Court held that the evidence in question must in its own terms be information that would be, in the Tribunal’s view, information which would so undermine a claim or claims for protection such that it would become a reason for the decision under review. Conversely, if the evidence in question merely produces an inconsistency or doubt which may or could result in the applicant being disbelieved, those doubts and inconsistencies cannot amount to s.424A information, because if they did 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”.[18] The High Court envisaged a circumstance where an explanation for an inconsistency produced another inconsistency and noted that if the Tribunal was obliged to issue new notices for so long as the applicant’s evidence lacked credibility, this would lead to “such a circulus inextricabilis, it is a likely indication the construction is in error”.[19]

   [17] SZBYR at [17].

   [18] SZBYR at [18].

   [19] SZBYR at [20].

3. The subsequent authorities have endorsed the position that whether s.424A is engaged depends on whether the Tribunal considered that certain information would be the reason or part of the reason for affirming the decision under review or went merely to credibility.[20] In SZSOG v Minister for Immigration,[21] for example, in which the Tribunal did not accept the applicant husband and wife were credible due to inconsistencies in their evidence, Rares J held at [29]:

   It was open to the Tribunal to accept or not accept both accounts. It chose to evaluate the evidence of each spouse on the issue based on the fact that their accounts were not consistent. When it came to evaluate whether it would accept the evidence of each spouse, it considered whether there were inconsistencies or gaps between their various accounts for the purpose of deciding whether, and to what extent, it could accept the respective account. The lack of consistency between the accounts did not entail that, on the present facts, either account contained a rejection, denial or undermining of the other. The Tribunal could have found that the accounts either were sufficiently consistent or corroborative or, as it did, lacked consistency or corroboration of each other. But, that conclusion was an evaluation by the Tribunal of the effect of the evidence of two witnesses that, in itself, was neutral as to the veracity or reliability of the other spouse’s evidence. Neither spouse had said that the subject matter of the evidence of the other had not occurred so as to deny or reject or undermine the other’s account.

   [20] see MZXBQ v Minister for Immigration [2008] FCA 319, at [27]-[29]; Minister for Immigration v SZFLX [2009] HCA 31 at [21]-[26]; SZSOG v Minister for Immigration [2014] FCA 1053 at [27]-[29]; SZUMS v Minister for Immigration [2016] FCA 542; SZQDR v Minister for Immigration [2016] FCA 543.

   [21] [2014] FCA 1053.

4. A useful test for distinguishing the claims material from mere credibility material is to ask whether, if the information were believed and looked at in isolation (i.e. apart from any inconsistencies or comparisons with other material), would it harm the applicant’s case? If the answer is no, it is not “s 424A information”.[22] Indeed credibility material to which s.424A does not apply is often, as was the case in SZBYR itself, material that, if believed and looked at in isolation, would have helped rather than hurt the applicant’s case.[23]

   [22] see SZBYR at [17].

   [23] Ibid.

1. In SZVGQ the applicant claimed to fear harm if he returned to India because he was a homosexual who had, among other things, been living as an open homosexual in Australia. He had earlier claimed that he had lived alone in Australia. The material at issue was evidence that, rather than live alone, he had lived with an Indian man and later with that man and his Indian wife.

2. As the High Court noted in Minister for Immigration v SZLFX (SZLFX)[24] at [24], it is the Tribunal’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review that is crucial to enlivening the obligation in s.424A. It seems that the material in SZVGQ was used by the Tribunal merely as credibility material – that is, evidence used by the Tribunal only to assess the applicant’s credibility and which only affected his credibility because of its inconsistency with other evidence (i.e. it was not considered by the Tribunal to directly reject, deny or undermine his claims).[25] Used in this way, the evidence is not “s 424A information” because that legislative concept does not include “the existence of doubts, inconsistencies or the absence of evidence”.[26] Given that the material was used only as credibility material (and not as claims material), the Minister submits that SZVGQ was wrongly decided.

   [24] (2009) 238 CLR.

   [25] see SZVGQ at [2]-[3] and [29].

   [26] see SZBYR at [18].

3. The “Tool Shed” material in SZVJY(2) was an example of the sort of claims material to which, under the distinction established in SZBYR, s.424A of the Migration Act applied. In SZVJY(2) an element or integer of the applicant’s claims to refugee status was that he was a gay man active in the Darlinghurst gay community, including an assertion that that he had frequented a “gay bar” called “The Tool Shed”. Information that the Tool Shed was not in fact a bar was material that the Tribunal in this matter considered, in its terms, directly undermined the applicant’s claim to have engaged in homosexual activity in Australia and was, therefore, the reason or part of the reason for affirming the decision under review.[27] As such, SZVJY(2) was an orthodox application of SZBYR.

   [27] SZVJY at [20], [6].

4. The material at issue in the present matter, referred to as “statement 2” in the Minister’s previous submissions, is not “claims material” in that it does not contain a direct rejection, denial or undermining of the applicant’s claims. Believed in isolation, it would help the applicant’s claim to be a refugee, not harm it. It was only harmful to the Applicant’s case because it was inconsistent with statements 1 and 3. Mere inconsistency between the statements is not “s 424A information” and neither is statement 2 by itself. The application should thus be dismissed with costs.

Resolution

1. I prefer generally the Minister’s submissions in relation to the issue raised. I have not found it necessary to revisit my earlier decision in SZVGQ. In my opinion, the relevant information in that case was that the applicant lived with a heterosexual couple, which tended to undermine his claim to be homosexual.

The alleged “information”

1. As the applicant notes in his submissions, part of the Tribunal’s reason for affirming the delegate’s decision was that it was not satisfied that there had been “any further contacts or threats or demands for additional money” from his former employers or persons associated with them[28].  The applicant goes on to submit that this credibility finding was based on contradictions between three statements made by the applicant:

   a)Statement 1: “In his original application and statutory declaration the applicant stated that Hassan Vito [the chief steward of the applicant’s former ship] had contacted his sister in Egypt in April and September 2013, in April 2013 to threaten that the applicant should not make complaints and in September 2013 to demand (and receive) payment of money”[29];

   b)Statement 2: “At the subsequent interview with the delegate the applicant now insisted that it was in September 2013, when Hassan Vito returned to Egypt, that he first approached the applicant's sister and threatened her that the applicant should not make any complaints”[30];

   c)Statement 3: “At hearing before the Tribunal, the applicant now stated that when Vito returned to Egypt in September 2013 he had not made any threats because although he tried to contact the applicant’s sister he could not do so as she had changed her address”[31].

   [28] CB 157 at [61].

   [29] CB 157 at [62], referring to CB 21 and CB 69 at [5].

   [30] CB 157 at [62], referring to CB 116.4.

   [31] CB 157 at [62], referring back to [41].

Only Statement 2 falls outside the exemptions

1. As the applicant appears to concede in his submissions, only Statement 2 falls outside the exemptions in s.424A(3). Statement 1 falls within the exemption in paragraph (ba) as material 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”. Statement 3 falls within the exemption in paragraph (b) as material the applicant “gave for the purpose of the application for review”. By contrast, while, the applicant gave Statement 2 during the decision-making process before the delegate, he gave it orally[32]. 

   [32] see s.424(3)(ba).

Statement 2 is not “s.424A information”

1. However, Statement 2 was information that, if believed, would have strengthened rather than undermined the applicant’s case; it was an assertion that the applicant’s sister had been threatened.  In the words of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR at [17], Statement 2 “did not contain in their terms a rejection, denial or undermining of the [Applicant’s] claims to be [a person] to whom Australia owed protection obligations.” It thus cannot be said to be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” for the purposes of ss.424AA and 424A of the Migration Act (“s.424A information”)[33]. 

   [33] see SZBYR at [17].

2. Of course, the applicant submits that it is the inconsistency of Statement 2 with Statements 1 and 3 that constituted “s.424A information”[34].  The same argument was attempted (though eventually abandoned) in SZBYR, and was rejected by the High Court for the reasons given at [18] (footnotes omitted):

   [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 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 [2004] FCAFC 123 at [24]] that the word “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”.

   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. 

   [34] see applicant’s submissions at [9] and [14].

3. Any inconsistencies between Statements 1-3 are not “s.424A information” and neither is Statement 2 by itself. 

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 1 August 2016