VWRT v Minister for Immigration
[2006] FMCA 1455
•2 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWRT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1455 |
| MIGRATION – Refugee Review Tribunal – exercise of jurisdiction – section 424a – application dismissed. |
| Migration Act 1958 (Cth), s.424a |
| Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 Re: Minister for Immigration; ex parte ‘A’ (2001) 185 ALR 489 SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 VWRT v Minister For Immigration & Anor [2005] FMCA 1816 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 |
| Applicant: | VWRT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 604 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 6 October 2006 |
| Date of Last Submission: | 6 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr Truong |
| Solicitors for the Applicant: | Brand Partners |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 9 May 2006, as amended, is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 604 of 2006
| VWRT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 9 May 2006 seeking judicial review of a decision of the Refugee Review Tribunal refusing to grant the applicant a protection visa.
The applicant is a 31 year old male citizen of India. He entered Australia on 9 January 2002 on a temporary business visa. In early 2004, the applicant’s business visa was cancelled and he was placed in immigration detention on 22 March 2004.
On 6 April 2004 the applicant applied for a protection visa. In his protection visa application, the applicant claimed that he could not return to India because he had formed a relationship with a Hindu woman. He claimed that her family did not approve of the relationship because he was a Muslim and that they had threatened to kill him.
He claimed that the woman’s family were rich and politically powerful and that the Indian authorities could not afford him protection.
On 21 April 2004, a delegate of the Minister refused to grant the applicant a protection visa. On 30 April 2004, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. After three hearing dates were postponed on medical grounds, the applicant gave oral evidence before the Tribunal on 26 July 2004. On 17 September 2004, the Tribunal handed down its decision which affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa.
On 14 October 2004, the applicant applied to the Federal Court for judicial review of the Tribunal’s decision. On 28 October 2004, the matter was transferred by Marshall J to the Federal Magistrates Court. After a hearing in the Federal Magistrates Court, it was ordered that the decision of the Tribunal dated 30 August 2006 be set aside and the matter be remitted to the Tribunal to be redetermined according to law.
On 20 January 2006, the Tribunal wrote to the applicant and invited him to attend a hearing on 17 February 2006. On 17 February 2006, the applicant gave oral evidence before the Tribunal with the assistance of a legal representative. On 14 March 2006, the Tribunal handed down its decision dated 1 March 2006 which affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa.
On 9 May 2006, the applicant filed an application seeking judicial review. On 30 August 2006, the applicant filed an amended application, and on 12 September 2006, the applicant filed a re-amended application. On 6 September 2006, the applicant filed contentions of fact and law and on 12 September 2006, the applicant filed re-amended contentions of fact and law. On 26 September 2006, the first respondent filed contentions of fact and law. The applicant handed up further amended contentions of fact and law at the hearing on
6 October 2006.
Initial claims
In his protection visa application, the applicant claimed that although he came to Australia in 2002 on a business visa, the only reason he left India was because he had been threatened. Prior to coming to Australia, the applicant stated that he had been living in a majority Hindu community where only five to six percent of the families were Muslim. The applicant claimed that in 1999 he had fallen in love with a Hindu girl who lived close to his house. The applicant claimed that because of their differing religions, he was only able to meet the girl in a different suburb or speak to her on the telephone. The applicant claims that he and his girlfriend had decided to run away and get married until her brother found out about their relationship. He claims that the brother of the girl then came around to his house and tried to kill him.
The applicant claimed that his girlfriend’s family is rich and politically powerful. He claimed that the girlfriend’s brother is a very bad man who is harassing Muslim families within his community, and who is also a convicted criminal who is involved in ‘drugs and stuff.’
The applicant claimed that his girlfriend had told him not to return and that if he returns to India, he will be killed. He claimed that if he were to return to India, the authorities would be unable to protect him because there is a lot of corruption and his girlfriend’s family are wealthy and have political connections.
Original proceedings in the Tribunal
In his application for review made on 3 April 2004, the applicant reiterated his claim that the only reason he came to Australia was that he was being threatened by the family of his Hindu girlfriend.
He stated that the family had threatened that they would kill him if he did not stop loving the girl. The applicant claimed that every time his girlfriend’s brother is convicted and jailed for an offence, the family uses its political influence and bribes officials to obtain his release. The applicant also claimed that his older brother was killed in religious riots in the early 1990’s and that his family is in a poor financial position in India and that they live in fear. The applicant also submitted a statutory declaration sworn on 19 June 2004 in which he provided extensive detail about his relationship with his girlfriend, including the claim that she had disappeared.
At the hearing before the Tribunal, the applicant reiterated his claim that he could not return to India because his girlfriend’s family would kill him. He claimed that his girlfriend’s family would now be interested in him because they would think he was involved in her disappearance. Further, the applicant submitted that he could not go to any other part of India because his girlfriend’s family was very influential. Notably, the applicant claimed that a family business had been burned in conflict between Hindus and Muslims, although the business was still operating.
Submissions made by the applicant’s legal adviser were also noted in the Tribunal decision. The adviser submitted that the applicant’s fear of violence should he return to India was based on his religion and imputed political opinion in light of the death of his brother and his brother’s political role. The adviser also submitted that the applicant was persecuted because of his ethnicity and because of his membership of a particular social group, claiming with respect to the latter that the applicant would be persecuted should he return to India for being involved in an inter-caste relationship.
In its finding and reasons, the Tribunal accepted the applicant’s claims with respect to his family’s business being burnt down. It accepted that the applicant’s brother may have been murdered, but was unable to accept that the murder was during Muslim riots or because the applicant’s brother had been a member of a political party as claimed. The Tribunal did not accept that the political activities of his brother would impinge upon the treatment of the applicant or his family in the reasonably foreseeable future and that if animosity had existed it would have manifested itself during the several years between his brother’s death and when the applicant met his girlfriend. On this basis, the Tribunal found that the applicant would not face a real chance of persecution because of his religion or imputed political opinion if he were to return to India.
With respect to the applicant’s claims that he fears harm from a non-state agent, namely the family of his Hindu girlfriend, the Tribunal found that the applicant would have adequate protection from the authorities should he return to India.
Lastly, the Tribunal considered whether with respect to the claim that the applicant would be persecuted for “… belonging to a particular social group consisting of persons involved in inter-caste relationships who are seen as a threat to [the] … caste system.” The Tribunal stated that it was unable to find any evidence that there is any such particular social group in India. On the basis that neither the applicant nor his adviser were able to describe his ethnicity, the Tribunal found that it could not be satisfied that the applicant’s ethnicity had a Convention nexus with the harm he claimed to fear on this ground. The Tribunal affirmed the decision of the Minister’s delegate.
On review, McInnis FM said in VWRT v Minister For Immigration & Anor [2005] FMCA 1816 at [39]-[43]:
39 In my view there is clearly confusion in the manner in which the particular social group was raised by the Applicant's representative before the Tribunal. The introduction of the concept of "ethnicity" was clearly both inaccurate and irrelevant. A proper reading of the transcript reveals in my view that once that term "ethnicity" was introduced, the Tribunal then not surprisingly explored that issue and drew the conclusion which it was almost bound to conclude that this was not an issue of ethnicity.
40 Indeed the phrase that a relationship had been formed with a woman "of an opposite ethnicity, religion" is itself a sufficient indicator that the language used by the representative was imprecise. It is difficult to conceive of a person having an "opposite ethnicity".
41 However, a proper reading of the claim, statutory declaration, and the example given of the particular social group before the tribunal in my view fairly raises and in the alternative, by inference raises sufficient identification of a particular social group to be characterised as a person involved in an inter-religious relationship, being a Muslim involved in a relationship with a Hindu.
42 That particular social group is clearly capable of identification sufficient in my view to justify the Tribunal exploring that group rather than discounting or being dismissive of an alternative suggestion regarding ethnicity. It clearly is not a case where it could be suggested in any manner that this claim was based on what might otherwise be described as persons being involved in inter-caste relationships who are seen as a threat to such a caste system as characterised by the Tribunal.
43 In my view the failure of the Tribunal to address the particular social group which has been raised squarely in the material and/or in the alternative at least arises by implication from the material is sufficient to constitute jurisdictional error. Accordingly, on this ground it is my conclusion that the application should succeed.
The Federal Magistrates Court, on that basis, remitted the matter to the Tribunal to be reheard.
Claims before the second Tribunal
In anticipation of the further hearing before the Tribunal, the applicant’s legal adviser forwarded further submissions to the Tribunal by letter dated 16 February 2006. It was submitted that the applicant feared persecution because of his membership of a particular social group of ‘persons in mixed Hindu/Muslim relationships in India.’
In the submissions, it was claimed that should the applicant return to India, he would be unable to secure effective protection from the Indian authorities because they would view the applicant’s problems with his girlfriend’s family as a private matter. It was further argued that while relocation was possible, his girlfriend’s brother would go to great lengths to punish him in order to protect his family’s honour.
In its decision, the Tribunal considered in extensive detail the written claims of the applicant in his protection visa application, the applicant’s statutory declaration made on 19 June 2004, the findings of the first Tribunal hearing and the pre-hearing submissions from the applicant’s adviser.
At page 11 of its reasons for decision, the Tribunal recounted the information given by the applicant orally at the hearing. The Tribunal asked the applicant if he had sought police protection after being assaulted by his girlfriend’s brother. The applicant replied that he had reported it to the police and was kept at the station for 12 hours.
When the Tribunal put to the applicant that he had made no reference to having reported the assault in his earlier claims, the applicant said that he had mentioned it at the previous Tribunal hearing. The Tribunal then put to the applicant that he had said at the previous Tribunal that he had not wished to go to the police because they would “finish” him, they were mainly Hindus and they would not protect him against his girlfriend’s family. In reply, the applicant said that he had mentioned it at the earlier hearing, but he did not remember exactly what he had said as the hearing had happened a long time ago, had lasted for more than three hours, and he had been tired.
The Tribunal asked the applicant why he did not seek protection immediately on arrival, instead of waiting for two years until he was in immigration detention. The applicant said that as he was on a business visa and intending to apply for permanent residency, he did not think that he needed to apply for protection. However, when he lost his sponsorship and his business visa was cancelled, he was forced to apply for a protection visa. The Tribunal then put to the applicant that “this history could give the impression that his claims to fear persecution were not genuine and that the only reason for them was that he wanted to stay on in Australia.”
The Tribunal also put to the applicant that he was young, very well-educated, possessed high order language skills which were in demand, spoke English, Urdu and other Indian languages and had demonstrated the ability to live and work in a completely foreign society such as Australia. It was suggested by the Tribunal that because of this, the applicant would have little difficulty relocating within India.
In response, the applicant claimed that living in a different state would not assist as his girlfriend’s family could easily locate him by putting an advertisement in a national newspaper offering a reward for finding him.
The Tribunal questioned the applicant about his claim, made to his adviser the day before the hearing, that his girlfriend’s family attempted to kidnap his younger brother. The applicant also claimed that his family had been troubled by their neighbours and others in their local community who were mostly Hindus. He said that these people were harassing his family by shouting out and making complaints about him, making comments about his Hindu girlfriend and throwing rocks at the windows of his family’s house. When asked by the Tribunal when he had heard about this from his family, the applicant said that he had received that information about four times, in May 2002, 2003 and 2004. When asked by the Tribunal why he made no reference to the incidents in 2002 and 2003 in his earlier statutory declaration, the applicant said that the question had not come up and he did not think it was necessary to explain what had happened. It was put to the applicant that the failure to mention the incidents previously could give the impression that they did not occur and were only being mentioned to strengthen his case.
In its finding and reasons, the differently constituted Tribunal, as with the earlier Tribunal, accepted that the applicant’s family had suffered the loss of a shop owned by them caused by religious rioting in 1990. The Tribunal also accepted that the applicant’s brother died as a result of his involvement with a political party during rioting in 1993. However, the Tribunal found on the basis of the applicant’s own claims that it did not appear that the applicant had suffered any harm or discrimination in Hyderabad because he was a Muslim. The Tribunal found that the applicant had lived with his parents, had been the recipient of a reasonably good education culminating in a Bachelor of Science degree in 1995 and that he had been able to secure work for some time in the information technology industry. Furthermore, on the applicant’s own account, he had had never been a member of or involved in a political party, with his sole connection to politics being his brother’s involvement in the past. Given that 13 years had elapsed since his brother’s death, the Tribunal found that it was satisfied that there was no real chance that the applicant would suffer harm for reason of his religion or political opinion if he were to return to India.
The Tribunal was also not satisfied that should the applicant return to India, he would be persecuted for reason of his membership of a particular social group consisting of persons in a mixed Hindu-Muslim relationship. In rejecting his claim, the Tribunal noted that the applicant had lost contact with his former girlfriend and was not satisfied that the applicant would resume his relationship with her.
The Tribunal did not accept that the applicant would be at risk because of his previous relationship, because nothing had happened to the applicant in the six months before he left India. The Tribunal also considered the applicant’s claims that members of his family had been harassed because of his relationship with his girlfriend. The Tribunal concluded that no weight could be placed on those claims because the applicant had only made these claims at the second Tribunal hearing and had not mentioned them in earlier submissions to the Tribunal.
The Tribunal also found that the applicant’s actions did not reflect a significant fear of serious harm. The Tribunal found that despite several explanations advanced by the applicant as to why he did not leave India until six months after the assault by his girlfriend’s brother, he was not prevented from leaving immediately. Further, the Tribunal noted that both of the explanations advanced at the hearing for not leaving immediately were different to the reason the applicant gave for not leaving at the first Tribunal hearing, namely that his parents did not want him to go. In addition, it was found that the applicant’s actions, in failing to claim protection immediately after coming to Australia, and by waiting over two years until he was in immigration detention to apply for protection, were not the actions of a person who genuinely feared that he would be subjected to serious harm if he were to return to India.
Grounds of application
At the hearing, the applicant withdrew grounds 4 and 5 of his
re-amended application. The applicant’s remaining grounds, as set out in his re-amended application for judicial review, are as follows:
1.The Refugee Review Tribunal (“the Tribunal”) acted without or in excess of jurisdiction in failing to accord the applicant procedural fairness.
Particulars
1.1The Tribunal took into account and relied on claims made by the applicant as part of his protection visa application.
1.2The Tribunal found and placed weight on the fact (at page 20) of the applicant’s educational and vocational background as set out in his protection visa application.
1.3In breach of its statutory obligation under s.424A of the Migration Act 1958 (Cth) (“the Act”), compliance with which was a precondition to the proper exercise of its powers, the Tribunal failed to provide in writing to the applicant particulars of relevant information relied on by the Tribunal which formed the reason or part of the reason for affirming the decision under review.
2.The Tribunal acted without or in excess of jurisdiction in failing to accord the applicant procedural fairness.
Particulars
2.1The Tribunal took into account and relied on claims made by the applicant in his protection visa application.
2.2The Tribunal found and placed weight on the fact (at page 22) that a claim made by the applicant was not included in the applicant’s protection visa.
2.3In breach of its statutory obligation under s.424A of the Act, compliance with which was a precondition to the proper exercise of its powers, the Tribunal failed to provide in writing to the applicant particulars of relevant information relied on by the Tribunal which formed the reason or part of the reason for affirming the decision under review.
3.The Tribunal acted without or in excess of jurisdiction in failing to accord the applicant procedural fairness.
Particulars
3.1The Tribunal took into account and relied on claims made by the applicant in his protection visa.
3.2The Tribunal found and placed weight on the fact (at page 23) that the applicant entered Australia on a business Visa and did not apply for a Protection Visa until two years after entry.
3.3In breach of its statutory obligation under s.424A of the Act, compliance with which was a precondition to the proper exercise of its powers, the Tribunal failed to provide in writing to the applicant particulars of relevant information relied on by the Tribunal which formed the reason or part of the reason for affirming the decision under review.
…
6.The Tribunal acted without or in excess of jurisdiction in failing to accord the applicant procedural fairness.
Particulars
6.1The Tribunal took into account and relied upon independent country information (at page 18) relating to the outcome of the Andhra Pradesh Assembly election in India (“election information”)
6.2The Tribunal found and placed weight on the election information in finding that there was “no reason to believe that a lower priority will be given to maintaining law and order preventing communal conflict in Hyderbad and elsewhere in the state” (at page 20) and it was “not satisfied that in this political climate the Applicant’s girlfriend’s brother or other family members would be able to wield any influence they may have with the BJP in order to harm him.” (at page 22).
6.3In breach of its statutory obligation under s.424A of the Act, compliance with which was a precondition to the proper exercise of its powers, the Tribunal failed to provide in writing to the applicant particulars of the election information relied on by the Tribunal which formed the reason or part of the reason for affirming the decision under review.
In the applicant’s written contentions that were last filed, these grounds were resolved into four alleged breaches of s.424a of the Migration Act 1958 (“the Act”) based on four corresponding sets of information which the Tribunal did not provide to the applicant. Those sets of information were described in the applicant’s last filed written submissions as follows:
The applicant did not receive, prior to the Tribunal hearing and/or the Tribunal decision, written particulars of:
a)The independent country information concerning the 2004 elections in India referred to by the Tribunal at CB 222 and in the Tribunal’s findings and reasons at CB 223 and CB 226 (election information)
b)Information concerning his educational qualifications and work experience within the IT industry referred to by the Tribunal at CB 219 and in the Tribunal’s findings and reasons at CB 224 (education/vocation information)
c)Information concerning the omission and/or discrepancy from his visa protection application about claims of his family being attacked, harassed and rocks being thrown at their windows and his brother being kidnapped from 2002 referred to by the Tribunal at CB 219 and in the Tribunal’s findings and reasons at CB 226 (new harassment claims information)
d)Information concerning his entry into Australia on a business visa and not claiming protection for over two years, after being placed in immigration detention referred to by the Tribunal at CB 218 and in the Tribunal’s findings and reasons at CB 227 (entry information)
The relevant law
Section 424a of the Act provides as follows:
Applicant must be given certain information
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(c)invite the applicant to comment on 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.
(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; or
(c)that is non‑disclosable information.
A summary of the principal features of the law relating to s.424a of the Act is set out in the applicant’s last filed written contentions.
That summary is as follows:Pursuant to section 424A, the Tribunal must provide information (in the form of written particulars) to an applicant prior to the hearing if the information would form at least a part of the reason for its decision to affirm the decision under review, to enable the applicant to respond to it, provided the information does not fall within one of the specified exceptions under s.424A(3): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; SAAP v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 215 ALR 162.
Information is knowledge communicated concerning some particular fact, subject or event and in the context of section 424A is knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal and is not limited to circumstances in which the information imports some positive finding: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Allsop J. Information is that which one has been told or apprised, or informed but does not include the Tribunal’s subjective appraisals, thought processes or determinations although the distinction is fine: SZEEU per Allsop J at [206].
In assessing whether information was a part of the reason for affirming the decision under review, there is a need to analyse and interpret the whole of the written reasons in their context to assess why it was that the Tribunal acted as it did (and therefore to assess what would be, prior to making the decision, the reason or a part of the reason). Any information that is part of the reasoning process to explain the decision enlivens the operation of section 424A: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Allsop J.
The causal connection must be real, but need not be great to establish that information formed a part of the reason for the decision to affirm the decision under review: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Weinberg J.
The grounds
It is common ground that the Tribunal did not provide any information to the applicant under s.424a of the Act.
Ground 1: The election information
This ground concerns the following passage from the Tribunal’s reasons for decision:
While the Tribunal does not make light of the seriousness of religion-based conflict in India, or its potential for generating violence which can lead to loss of life, injury and other abuses of human rights, the independent country information makes it clear that most citizens of India do not live in fear of communal violence and manage to coexist in at least reasonable harmony with fellow citizens of other religions. Most governments, at least at State level, are committed to maintaining law and order and to protecting minorities. In the State of Andhra Pradesh, where the Applicant lives, the previous government led by the Telugu Desam Party was strongly secular and supportive of religious minorities, moderating the nationalist Hindu agenda of the BJP with which it was in alliance. Following the overwhelming defeat of that government by the Congress Party at elections in 2004 (in which the BJP was reduced to two seats) there is no reason to believe that a lower priority will be given to maintaining law and order and preventing communal conflict in Hyderabad and elsewhere in the State. Moreover, in Hyderabad itself the proportion of Muslims to Hindus is far higher than elsewhere in India, at approximately 41 percent, indicating that Muslims are not a small minority easily able to be oppressed by the Hindu majority.
It is common ground that the information about the 2004 Andhra Pradesh Assembly elections was part of the Tribunal’s reasons for decision.
The applicant noted that s.424a(3)(a) of the Act provides that the requirements of s.424a of the Act to give the applicant notice of information does not apply to 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.
The applicant noted that in Re: Minister for Immigration; ex parte ‘A’ [2001] 185 ALR 489, Kirby J said at [48]:
One possible argument available to the applicant … might be that the restriction in s.424a(3)(a) of the Act would be strictly construed and confined to information about a "class of persons" and not extended to information which, as such, referred to the social and political conditions of the country concerned, including any alleged change in the conditions in that country said to disentitle an applicant for refugee status.
The applicant also referred to a passage in the decision of Gummow J in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [117] where his Honour said:
In the original jurisdiction of this Court, Kirby J has referred to the possibility that par (a) does not extend to information referring to the social and political conditions of the country concerned, including changes said to disentitle the applicant for refugee status. But this is not the occasion further to consider that issue.
Neither Applicant A nor SAAP expressed the concluded view of either Kirby J or Gummow J on this issue. The applicant was unable to point to any other High Court authority in support of his argument that s.424a(3) of the Act does not apply to general country information but only to information that is just about a class of persons not being the applicant or another specific person.
However, the first respondent in her submissions pointed to the unanimous decision of the Full Federal Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [13] and [14] where Gyles and Conti JJ said the following:
13. It is argued for the appellant that this prescribes two criteria that must be met, namely, that the information:
(1) is not specifically about the applicant; and
(2) is just about a class of persons
It is submitted that the information in question was general in nature, covering more than one class of persons, and so did not satisfy the second criterion.
14. In our opinion that argument must be rejected. The 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. This construction of the subsection is consistent with the decisions in NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree. The opinion of Ryan and Finkelstein JJ on this point in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 at [30]–[31] seems to be contrary to those authorities (whilst seeking to distinguish them) but, in any event, would not affect the conclusion of Finkelstein J in this case even if correct.
At paragraph [21] of VHAP, Allsop J said the following:
As to s 424A, and in particular s 424A(3)(a), I am of the view that the construction favoured by Gyles J and Conti J is clearly correct.
The first respondent also referred the court to the decision of another Full Federal Court in QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20]-[30] where Lander J, with whom Dowsett and Hely JJ agreed, said the following:
[20] In VHAP of 2002, Gyles and Conti JJ held that the proper construction of s 424A(3)(a) of the Act was that the words ‘just about a class of persons of which the applicant or other person is a member’ were included to underline the specificity required and to preclude any argument that reference to a class would be taken as reference to all individuals falling within it. Allsop J agreed with the construction arrived at by Gyles and Conti JJ.
[21] This Court would follow a decision of a previous Full Court unless this Court was convinced that the decision was plainly wrong.
[22] The decision in VHAP of 2002 has been followed by another Full Court which arrived at the same construction: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (‘NAMW’). After a consideration of the section, the members of that Full Court independently reached the same view as the members of the Full Court in VHAP of 2002. A further Full Court in WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 (‘WAJW’), as recently as December 2004, was invited to conclude that the decisions in VHAP of 2002 and NAMW were wrong and should not be followed. That Full Court declined to do so.
[23] On this appeal, counsel for the appellant raised, yet again, another argument as to why the decisions in VHAP of 2002, NAMW and WAJW were wrong.
[24] On this appeal, it was contended, that s 424A(3)(a) of the Act regulated the admissible evidence which may be adduced before the Tribunal and was there to protect the applicant against any irrelevant material coming before the Tribunal.
[25] It was submitted that the section had the effect of requiring the Tribunal to provide to the applicant the irrelevant material which the Tribunal had identified, so that the applicant could comment upon that irrelevant material. The proposition only has to be stated to reject it.
[26] In my opinion, this Court has authoritatively and finally determined the true construction of s 424A(3)(a).
[27] Two Full Courts have arrived at the same construction. A third Full Court has refused to say that the previous two Full Courts were plainly wrong.
[28] In those circumstances, it would simply be inappropriate for a fourth Full Court to accede to a submission that the first two Full Courts were plainly wrong and the third Full Court was wrong not to conclude that the first two Full Courts were plainly wrong.
[29] There comes a time when the Full Court of this Court must decline to enter into a consideration of the correctness of its previous decisions and that time has been reached in relation to the construction of this subsection of s 424A.
[30] If another construction of s 424A(3)(a) is to be arrived at, it must be after consideration by the High Court of Australia.
This court is clearly bound by the construction of s.424a(3)(a) of the Act set out in VHAP, NANW, WAJW and QAAC. In the circumstances, this court is bound to conclude that the election information fell within s.424a(3)(a) of the Act. The applicant’s ground relating to that information must be rejected.
Ground 2: The education/vocation information
This ground relates to a passage in the Tribunal’s reasons for decision as follows:
On the basis of his own account, the Applicant himself does not appear to have suffered any harm or discrimination in Hyderabad as a result of his Muslim religion. He lived with his parents, was able to receive a good education leading to a Bachelor of Science degree in 1995, and was able to work for some time in the IT industry.
That passage was in the section of the Tribunal’s reasons under the heading “Findings and Reasons”. It is common ground that it formed part of the Tribunal’s reason for affirming the delegate’s decision. However, the applicant also referred to another passage in the Tribunal’s reasons at court book 219. In that passage, the Tribunal set out what transpired at the hearing. The passage reads:
The Tribunal put to the Applicant that he was young, very well-educated, possessed high order skills which were in demand, spoke English, Urdu and other Indian languages, had demonstrated the ability to live and work in a completely foreign society such as Australia. All this seemed to indicate that if he relocated to somewhere other than Hyderabad he would not have problems in adjusting, finding a job and living successfully.
This second passage was not a part of the reasons for decision but is simply a part of the Tribunal’s summary of the evidence that was before it. Accordingly, this passage, in itself, is not relevant for present purposes.
In relation to the education/vocation information, the question turns on whether the information falls within s.424a(3)(b) which provides that s.424a does not apply to information, “that the applicant gave for the purposes of the application.” The Full Federal Court established in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 that the information referred to in s.359a(3)(b) of the Act, and, by analogy, in s.424a(3)(b) of the Act, is information given to the Tribunal for the purposes of the application for review and not information given to the Minister in relation to the original application for a visa or, indeed, information given by the applicant to the Minister in any other context. However, an applicant may give information to the Minister in the context of a visa application or otherwise and give the same information to the Tribunal for the purposes of the review. In that situation, the information will have been given to the Tribunal and the exception in s.424a(3)(b) will apply.
Having said that, there is some dispute in the authorities as to when an applicant may be taken to have given information to the Tribunal.
It has been held that an applicant does not give information to the Tribunal if the applicant tells the Tribunal in an oral hearing that he confirms all of the matters in his protection visa application: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. There is also authority to the effect that information that was given to the Tribunal otherwise than “in chief” would not fall within the exception: NAZY at [37].
On the other hand, there is authority to the effect that if an applicant gives to the Tribunal a specific piece of information in response to a specific question, that would constitute information within the exception in s.424a(3)(b) of the Act. For example, in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [32]-[36], Kenny J said the following:
[32] At the hearing before the Tribunal, the Tribunal member asked questions regarding the appellant’s educational and employment history. In response to the question "You came as a student did you?" the appellant explained that he had been studying business management at Sydney International College and that he had completed his studies there. He was then asked what he was studying at the time of the hearing. The appellant answered that he was studying commercial cookery at the Australian College of Hospitality.
[33] Upon the basis of the information appearing in his protection visa application, the Tribunal member also asked him about his employment in India. For example, she asked, "because in your application it says that from September ’96 to August ’97 you worked as a sales executive for SR Traders, is that right?" The appellant affirmed that it was.
[34] Later, the Tribunal member and the appellant discussed the appellant’s schooling in India. The appellant confirmed, in response to a direct question on the matter, that he had attended high school and had graduated in 1996. He also confirmed that he had attended the National Institute of Sales and Marketing for one and a half years. The appellant explained that the institute was like a college.
[35] It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
"While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source."
Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant’s visa application in discussing some aspects of his history with him.
[36] I reject the appellant’s submission that at the Tribunal hearing he merely adopted the education information in his visa application. This was not a case where an applicant merely adopted the contents of a document as a whole and in so doing was said to have conceded the correctness of items of information within it: contrast SZEEU at [15] and [17] per Moore J. It may be recalled that in SZEEU the Full Court held that the applicant’s global adoption of an earlier statement (which contained the ‘flight information’) did not bring the flight information before the Tribunal for the purposes of s 424A(3)(b) of the Act. The present case is entirely different from the ‘flight information’ in SZEEU. It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal. It was open to the Tribunal on the basis of this information, which clearly fell within s 424A(3)(b), to find that the appellant was well-educated and resourceful so as to make relocation reasonable. Accordingly, the appellant’s proposed new ground, which asserts breach of s 424A(1) of the Act, is untenable.
The first respondent submits that this matter unfolded in a similar way. The first respondent provided to the court a copy of part of the transcript of the proceedings before the Tribunal. At pages 15 and 16 of the transcript, the following exchanges appear.
MEMBER:Right, well, let us go back, then. You – in 1990, you began living in a house in Hyderabad, which was owned by your parents, is that right?
INTERPRETER: Yes.
MEMBER:And you lived in that house up until the time you left India?
INTERPRETER: Yes.
MEMBER:Right, and that house was owned by your father, or your father and mother?
INTERPRETER: Yes.
…
MEMBER:Alright. Okay. And I understand that you were educated in Hyderabad, and you gained a Bachelor of Science degree in Computer Studies in 1995, is that correct?
INTERPRETER: Yes.
MEMBER:After you graduated in 1995, what employment did you have?
INTERPRETER: I was working temporarily for local company in overseas.
MEMBER:How long was that for?
INTERPRETER: I was work for 3 years, for that company.
MEMBER:All right. What sort of work was that?
INTERPRETER: I – it is to be a programmer.
The first respondent also notes that this information was elicited by the Tribunal in the same order that it appears in the Tribunal’s reasons for decision. The information, in order, was that the applicant lived with his parents, obtained a Bachelor of Science degree and worked in the information technology industry. Accordingly, the first respondent submits that it is clear that the Tribunal relied on the information as it was given to the Tribunal rather than information to the same effect that was given to the Minister in the original application for a protection visa or to the Minister’s delegate on review.
That conclusion appears to me to be inescapable. Nevertheless, the applicant argues that the present case is distinguishable from SZDPY on the basis that more information was elicited in that case than in the present case. That submission does not appear to me to be factually correct. That is, it does not appear to me that more information was provided on the relevant issue in SZDPY than in the present case.
In any event, I do not regard the degree of detail in this context as a relevant point of distinction. That is, SZDPY is relevantly indistinguishable from the present case. SZDPY and SZEEU are binding upon me. Accordingly, I am bound to conclude that the exception in s.424a(3)(b) of the Act applies to the “education/vocation information”.
The first respondent also argues that the Tribunal’s decision in relation to this ground is sustainable on an alternative and independent basis, namely, that the Indian authorities would provide the applicant with adequate state protection against harm on religious grounds. In view of my conclusions mentioned above, it is unnecessary for me to consider that argument.
Ground 3: The new harassment claims information
This ground concerns the following paragraph from the Tribunal’s reasons for decision:
In reaching this conclusion the Tribunal has considered the Applicant’s claims that his family members have been subjected to harm as a result of his relationship with his girlfriend. He claims they have been attacked, harassed and rocks have been thrown at their windows. He also claims that an attempt was made to kidnap his younger brother. The Tribunal is not satisfied that any weight can be placed on these claims. They were advanced for the first time at the Tribunal hearing on 17 February 2006. They were not mentioned in the Applicant’s submissions to the Tribunal of 29 June 2004, 16 February 2006 or 17 February 2006. This is despite the Applicant’s claims that he learned of the incidents in 2002, 2003 and 2004. Whether or not the Applicant mentioned the claims to his advisor on the day before the Tribunal hearing as he and the advisor assert, the Tribunal is not satisfied that they are more than inventions designed to strengthen his claim to be at continuing risk of harm. The Tribunal is not satisfied that any weight can be placed on them as evidence that the Applicant’s girlfriend’s family is looking for him in order to do him harm.
The applicant argues in his written submissions that:
The new harassment claims information constitutes “information” for the purposes of section 424A in that the omission of these claims from the original protection visa application is capable of being characterized as information in the initial claim, being a representation of the completeness of (sic) fullness of the material put forward: SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 per Rares J; SZEEU v Minister for Immigration [2006] FCAFC 2.
On its face and in its proper context, the Tribunal relied on the fact that the applicant did not advance the new harassment claims in his protection visa application as well as before the Tribunal in regarding the claims as a recent invention designed to bolster his prospects of being granted a protection visa. It is implicit in the Tribunal’s decision that had the applicant mentioned this matter before the delegate, it would not have used the omission in materials before the Tribunal as evidence of a recent fabrication.
The first respondent argues that the Tribunal did not rely on any information provided or not provided to the delegate. Rather, the first respondent argues that the Tribunal expressly relied on the fact that the claim was “not mentioned in the applicant’s submission to the Tribunal of 25 June 2004, 16 February 2006 or 17 February 2006.” It is argued that the Tribunal relied on what the applicant had omitted to say in information given to the Tribunal, such that the information fell within the terms of paragraph s.424a(3)(b) of the Act.
It is clear that the Tribunal expressly relied upon the fact that the new harassment claims were not mentioned in the applicant’s submissions to the Tribunal. Those submissions were identified in its reason for decision by their dates.
In SZEEU at [221]-[223] Allsop J said the following:
[221] I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1138 [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).
[222] In my view, it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not:
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.
[223] Their Honours referred to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29] in support of that proposition. Reference to those paragraphs of WAGP makes clear what was being decided in that case. The argument that was rejected in WAGP was that "information" encompassed what was not mentioned to the Tribunal as a matter of evidence. This was a clear application of the distinction between information and mental processes. The argument sought to manufacture "information" out of the consideration and assessment by the Tribunal of the applicant’s oral evidence to the Tribunal. I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.
Applying these principles to the present case, if the Tribunal had in fact relied on the absence of the new harassment claims information from the statements provided by the applicant in his original protection visa application and in his statement to the Minister’s delegate, the exception in s.424a(3)(b) of the Act would not have applied. However, the Tribunal expressly stated that it based its reasoning on the absence of the new harassment claims information in the submissions that were made to the Tribunal on particular dates. In view of that express statement, there is no basis for a conclusion that the Tribunal was implicitly relying upon the absence of information in other documents. Accordingly, this ground is not made out.
Ground 4: The entry information
This ground concerns the following passage from the findings and reasons of the Tribunal:
When the Applicant arrived in Australia he did not claim protection immediately but instead waited for over two years before doing so, after he had been placed in immigration detention. The Tribunal is not satisfied that these actions are compatible with those of a person who genuinely feared that he would be subjected to serious harm if he returned to India and wished to gain protection in Australia in order to save his life.
The applicant says that the Tribunal derived this information from the applicant’s protection visa application and the delegate’s decision.
The applicant says that the Tribunal relied on this information but failed to advise the applicant of it in accordance with s.424a of the Act.
The first respondent says that this information fell within the exception in s.424a(3)(b) of the Act in that all of the information contained in the paragraph set out above was provided by the applicant directly to the Tribunal. More particularly, the first respondent refers to the following six matters. Firstly, in section (d) of the applicant’s application to the Tribunal received on 30 April 2004, the applicant said “I came to Australia in 2002 on 457 business visa.” Secondly, in a statutory declaration made by the applicant on 29 June 2004 and lodged with the Tribunal, the applicant said in paragraph 1, “I made an application for a protection visa on 6 April 2004 after my business visa was cancelled.” Thirdly, at the hearing before the Tribunal as originally constituted on 11 August 2004, the applicant was asked how long he had been in immigration detention, and he replied “approximately four months.” Fourthly, he also told the Tribunal on that occasion that he came here on a business visa. Fifthly, the applicant told the Tribunal on
11 August 2004 that he had applied for a protection visa after he was detained. Sixthly, the applicant told the Tribunal at the second hearing, on 17 February 2006, that he had applied for a protection visa while he was in detention.
The applicant also said in his statutory declaration made on 29 June 2004 and provided to the Tribunal that he came to Australia on
9 January 2002. The Tribunal’s finding that
When the Applicant arrived in Australia he did not claim protection immediately but instead waited for over two years before doing so, after he had been placed in immigration detention
was clearly a fair summary of the information given by the applicant directly to the Tribunal in relation to this topic. Similarly, the Tribunal’s observation that the applicant came to Australia on a business visa was clearly based on information provided directly by the applicant to the Tribunal.
For these reasons, it is clear that the applicant provided the entry information to the Tribunal such that the exception in s.424a(3)(b) of the Act applies to the entry information. Accordingly, this ground is not made out.
Conclusion
None of the applicant’s grounds has been made out. Moreover, I am unable to discern any error in the Tribunal’s reasons. Accordingly, the application must be dismissed with costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
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