FEDERAL COURT OF AUSTRALIA SZFFC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1447 MIGRATION – no attendance at Tribunal hearing – information in s424A(1) does not extend to an observation that the appellant did not refer to a particular matter in his evidence - Tribunal's decision based on absence of information to support claim of psychological fear – claim in both visa application and application to Tribunal – SAAPand Al Shamry have no application Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 110 FCR 27 MZWPK v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1256 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 SZFFC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 796 OF 2005 BENNETT J 29 SEPTEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 796 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFFC APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 29 SEPTEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be joined as the second respondent to these proceedings. 2. The appeal is dismissed. 3. The appellant is to pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 796 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFFC APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: BENNETT J DATE: 29 SEPTEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In the information provided in his application to the Refugee Review Tribunal the appellant refers to what he says is discrimination and conflict in Indonesia amongst Muslims, Christians and ethnic Chinese Indonesians. He refers to a number of areas of tension within that country. He says that he left Indonesia because he can no longer live in fear of harm and threat to his life. In particular, in his application he said to the Tribunal that all his past experiences had accumulated into psychological fear so that he no longer wished to return to Indonesia. Similarly, in support of his original visa application he had said that his past experiences had accumulated into psychological fear so that he no longer wished to return to Indonesia. To that extent, the application to the Tribunal mirrored the information in the visa application, as did the general references to the tensions within Indonesia on which he relies. 2 The appellant was invited to attend a hearing before the Tribunal. He did not attend. Correspondence notifying him of that hearing was extensive and included the return of notification sent to various addresses. There is no complaint by the appellant of any failure by the Tribunal to comply with its statutory obligations notification. I am satisfied the Tribunal did so comply and that it was entitled to proceed in the absence of the appellant. The Tribunal affirmed the decision of the delegate to refuse the appellant's application and I will return to that decision. 3 The appellant then appealed to the Federal Magistrates Court. Federal Magistrate Scarlett dismissed the application. There would not seem to be any complaint of error on the part of the Federal Magistrate. 4 In his application to Scarlett FM, the appellant did not state any proper grounds of review but merely repeated his claim as to why he said he was a refugee. The appellant had been directed to file and serve an amended application giving particulars in that court but did not do so. 5 At the hearing before the Federal Magistrate, the appellant apparently asserted that the Tribunal did not consider the material which was in his favour. I can see no error in the way his Honour dealt with the case that was before him and, as I have said, none was indicated in the amended notice of appeal. 6 The amended notice of appeal simply asserts that the decision, which I take to be the decision of the Tribunal, involved an error of law in that; '(a) The decision involved an exercise of the power conferred by the Migration Act and Regulations (b) The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.' 7 This is distinctly unhelpful. 8 The appellant has appeared in person with the assistance of an interpreter. When asked what he wished to say in support of his appeal the appellant simply said that the Federal Magistrate did not fulfil his wish to review the Tribunal decision and that he just wished to have his case reviewed. That does not raise a jurisdictional error. 9 The reasons of the Tribunal are short. Relevantly, the findings and reasons of the Tribunal are set out in the following paragraph; 'The [appellant's] evidence is very vague. While he says that the hotel in which he worked was looted and burnt, he does not say when this occurred. He also says, however, that he was employed as a duty manager at the Agas International Hotel in Jakarta from 1998 until 2003. This hotel currently advertises on the internet (http://www.indo-vacation.com/hotel/yogakarta/agassolo.htm) which would indicate that it is still operational. The [appellant] does not claim to have suffered any physical harm in the past, although he refers to accumulated 'psychological fear'. On the evidence before it, the Tribunal is not satisfied that the [appellant] has suffered Convention-related persecution in the past.' 10 There was an additional reason based upon independent information but it is apparent and not disputed by Mr Potts, who appears for the Minister, that the above paragraph represents the reason or part of the reasons for the Tribunal's decision. 11 There remains a matter for consideration that was not dealt with by the Federal Magistrate and which arises from the decision of the Tribunal. It is a matter that was properly raised in this court by Mr Potts. In looking to the reason or part of the reasons for the Tribunal's decision and "unbundling" those reasons, the question is whether the reference to the hotel and the appellant's position as duty manager of a hotel in Jakarta comes within section 424A(1)(a) of the Migration Act 1958 (Cth). If it does, being information that was supplied only in the visa application, the Tribunal was obliged to provide particulars of that information to the appellant in writing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 110 FCR 27), which it did not do. 12 "Information" does not encompass the Tribunal's subjective appraisals, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal by reference to gaps in the evidence (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]). Information does not encompass a failure to mention a matter to the Tribunal; information does not extend to an observation that the appellant did not refer to a particular matter in his evidence: WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26]. As Heerey J said in MZWPK v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1256 at [14]: 'The word "information" in section 424A(1) imports at least some positive factual material.' 13 As its reason for decision, the Tribunal pointed to the appellant's claim of accumulated psychological fear. That was the substance of the claim. The appellant did not provide sufficient information in support of that claim to satisfy the Tribunal that he had suffered Convention related persecution. In my view, the Tribunal's observation about the hotel is a reference to that absence of information to demonstrate that what may have occurred at the hotel was sufficient to ground the appellant's fear of persecution. The claim of psychological fear was made in the application to the Tribunal and therefore was information within section 424A(3)(b) of the Act, of which particulars did not need to be provided. 14 Accordingly, the appellant has failed to establish jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate. It follows that the appeal should be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 12 October 2005 The appellant appeared in person assisted by an interpreter. Counsel for the Respondent: JA Potts Solicitor for the Respondent: Phillips Fox Date of Hearing: 29 September 2005 Date of Judgment: 29 September 2005