FEDERAL COURT OF AUSTRALIA SZHYM v Minister for Immigration and Citizenship [2007] FCA 869 SZHYM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 349 OF 2007 MANSFIELD J 13 JUNE 2007 ADELAIDE (VIA VIDEO LINK TO SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 349 OF 2007 BETWEEN: SZHYM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MANSFIELD J DATE OF ORDER: 13 JUNE 2007 WHERE MADE: ADELAIDE (VIA VIDEO LINK TO SYDNEY) THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 349 OF 2007 BETWEEN: SZHYM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MANSFIELD J DATE: 13 JUNE 2007 PLACE: ADELAIDE (VIA VIDEO LINK TO SYDNEY) REASONS FOR JUDGMENT INTRODUCTION 1 The appellant appeals from a decision of a Federal Magistrate of 16 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal handed down on 1 December 2005. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the appellant a protection visa for which he had applied on 7 July 2005 under the Migration Act 1958 (Cth) (the Act), soon after he arrived in Australia. 2 The appellant is a national of Bangladesh. He arrived in Australia on 1 July 2005, travelling on a Subclass 676 Visitor visa granted on 5 April 2005. He applied for a protection visa on 7 July 2005. He claimed to have a well-founded fear of persecution if he were to return to Bangladesh by reason of his conversion to the Ahmadi faith as Sunni Muslims would abuse and assault him by reason of his religion. The Ahmadi faith is apparently the Ahmadiyya sect of the Muslim religion. THE APPELLANT'S CLAIMS 3 He was born in 1978. He claimed that he was raised a Sunni Muslim in a Sunni Muslim family and in a Sunni Muslim area, apart from a few Hindus and Ahmadis. He developed an interest in the Ahmadiyya religion while growing up, but did not take any active steps in relation to that interest until a young man. He completed his schooling in 1993, and started working in the family business. He said he converted to the Ahmadi religion in October 2004. Since then, he claimed, he had faced social and religious discrimination from the Sunni Muslim community in his area, including verbal and physical assaults and being spat upon. In December 2004 he was threatened with death if he did not reconvert to being a Sunni Muslim. On 5 January 2005, he was assaulted by some religious extremists, and was hospitalised for two weeks with a leg injury. He then left his family home due to fear of further assaults, and moved from place to place, until he came to Australia. THE TRIBUNAL'S REASONS 4 On the basis of his own evidence, the Tribunal noted that the appellant had had only a brief involvement with the Ahmadi faith. It approached his knowledge of the faith and its beliefs on that basis. It was, however, not satisfied that the appellant had converted to the Ahmadi faith as he claimed. It said: … When asked to explain what it is that Ahmadiyyas believe he could give no clear answer, beyond saying that they believe in the founder, Mirza Ghulam Ahmad and pray the same way as Sunnis. He was unable to identify key writings of Mirza Ghulam Ahmad … [or] to name the current head of the Ahmadi faith and did not know that he is the fifth successor of Mirza Ghulam Ahmad … He produced no substantiation from the Ahmadi faith in Bangladesh to attest to his conversion … [and] produced no substantiation to indicate that he is known as an Ahmadiyya by the Ahmadi faith in Australia. … The Tribunal is not satisfied that he ever worshipped at an Ahmadi mosque in Bangladesh or in Australia, as he claims to have done. 5 The Tribunal's reasons then continued: As the Tribunal is not satisfied that the applicant has ever had any significant contact with the Ahmadi faith it is not satisfied that there is any reason to believe he would have been suspected of abandoning his Sunni faith and converting to the Ahmadi faith when he lived in Bangladesh. The Tribunal is not satisfied that he has ever been abused, threatened, or physically harmed for this reason in the past. While the Tribunal is prepared to accept the authenticity of the discharge certificate submitted by the applicant, there is nothing in that certificate to indicate that the applicant was assaulted because of any involvement with the Ahmadi faith. The Tribunal is not satisfied that the applicant had any reason to fear that he would be assaulted and killed or otherwise harmed for this reason while he was in Bangladesh. It was that conclusion which was reinforced by his delay in leaving Bangladesh. 6 The reference to the discharge certificate is a reference to a certificate apparently provided by a medical clinic indicating that the appellant had been admitted to that clinic between 5 and 19 January 2005 with multiple abrasions and extensive bruising to his legs by reason of an assault. The Tribunal did not accept that the assault was related to the appellant's practise of the Ahmadi faith. 7 The Tribunal was reinforced in its view by the period between the appellant obtaining his visa to enter Australia on 5 April 2005 and his departure from Bangladesh almost some three months later on 30 June 2005. It did not accept as credible his explanation that his delay in departure was due to his fear of travelling to Dhaka from his home or his lack of money to do so. It said that if the appellant genuinely feared harm from the Sunni Muslims, or from his brother or anyone else, he would not have remained in Bangladesh for such a lengthy period "when he had the means at hand to avoid it by escaping to Australia." 8 As the Tribunal did not think that the applicant had ever had any significant involvement in the Ahmadi faith, it did not think that he had ever suffered harm for that reason in the past or that he had a well-founded fear of persecution by reason of his religious interest in the Ahmadi faith if he were to return to Bangladesh. THE FEDERAL MAGISTRATE'S DECISION 9 The appellant in the Federal Magistrates Court asserted that the Tribunal, in reaching its conclusion, had committed jurisdictional error in two respects. Each was rejected. The first was that the Tribunal had failed to comply with s 424A of the Act, by failing to give him notice of information which it considered would be the reason, or a part of the reason, for affirming the decision under review and the opportunity to comment upon it. So far as relevant to this appeal, the information about which he contended he should have been given a notice in writing under s 424A(1) of the Act was the fact that he had told the Tribunal about threats from his family, including one of his brothers who had threatened to catch him and to beat him, but he had made no reference to those threats in his protection visa application. (There were other matters which, before the Federal Magistrate, it was said should have attracted the operation of s 424A(1) of the Act, but they were not pursued on the appeal and so it is not necessary to refer to them.) The second ground of alleged jurisdictional error argued before the Federal Magistrate was that the Tribunal denied the appellant natural justice when making its findings and reasons. That ground was also unsuccessful. It was not pursued on appeal. 10 The appellant maintained on appeal the contention of jurisdictional error for failure to follow the procedure enclosed by s 424A(1) in respect of the appellant's failure to mention the threat from his brother in his protection visa application. As to that matter, the Federal Magistrate said: [The appellant] alleges that the Tribunal had regard to the difference between information in the [appellant's] statement of claim to the Department and his protection visa application. However, there are no particulars provided as to those differences and none are apparent on the face of the Tribunal's decision. The Tribunal does refer to a claim by the [appellant] at the hearing that his brother beat him because of his conversion to Ahmadi and noted that such an allegation was not contained in his protection visa application. However, a fair reading of the decision would lead to the conclusion that the Tribunal accepted the [appellant's] explanation provided to the Tribunal and the inconsistency was not part of the Tribunal's reason for affirming the decision under review. 11 It is that part of the decision of the Federal Magistrate, and of the decision of the Tribunal, which has been the subject of this appeal. There are no other parts of the decision of the Federal Magistrate to which it is necessary to refer. The only other jurisdictional error now sought to be argued on behalf of the appellant was not raised before the Federal Magistrate. CONSIDERATION 12 The appellant contended that in the passage from the Federal Magistrate's reasons referred to, her Honour erred because, in the circumstances, she could not reasonably find that on a fair reading the Tribunal "accepted" the appellant's explanation for the inconsistency when the Tribunal expressly put to the appellant that he had failed to mention such "an important issue" and cynically (an editorial comment in the submission) noted the appellant's explanation that "somehow" it had not been written down. He also contended that there was error on the part of the Federal Magistrate in finding that the inconsistency was not part of the Tribunal's reasons for affirming the delegate's decision as the Tribunal considered the inconsistency was an important issue and sufficiently significant to warrant specific mention. 13 Reliance was placed upon the observations of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [164]. In that case, and in the context of those facts, Weinberg J said: Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play 'a part' in its reasons for decision. It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person's claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. 14 The first respondent contended that, upon a proper reading of the Tribunal's reasons, the fact that the complaint of threatened harm from his family and brothers had not earlier been made it simply did not form part of its reasons for decision. 15 The occasion on which the issue arose as to what the appellant had put in his protection visa application about any threat from his family or his brother arose during the hearing on 3 November 2005 before the Tribunal. The appellant had described in a little detail the persons who had threatened him. He said that "some people with beards and caps had threatened him and warned him against associating with Ahmadiyyas." He also said that his family had threatened him and told him he could no longer live at home, so he had left and stayed with a friend. He also said at the hearing that one of his brothers had threatened to catch him and beat him. The Tribunal then asked the appellant why he had failed to mention that "important issue" in his protection visa application, and noted that the appellant then said that "somehow" it had not been written down. The Tribunal then passed onto another topic. Those exchanges are recorded in that part of the Tribunal's reasons where it was noting the information given at the hearing. 16 In the Tribunal's "Findings and Reasons" section of its decision, the Tribunal did not advert to that inconsistency or omission. It rejected the appellant's claim to have been involved significantly with the Ahmadi faith because of his lack of knowledge of that faith. It rejected his claim to have suffered harm in the past because, not having had significant contact with that faith, there was no reason why the appellant would have been abused, threatened or physically harmed in connection with that faith. Obviously, the issue argued turns upon whether, in the circumstances, the so-called inconsistency, more accurately the fact of the omission of such a complaint from an earlier statement, was information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. 17 The information provided in an application for a protection visa is not per se information given for the purpose of the application for review to the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, followed in SZEEU 150 FCR 214. Consequently, assuming the information was part of the reasons for the Tribunal affirming the decision under review, unless s 424A(3)(b) applied, the Tribunal failed to give notice under s 424A(1) and so committed jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. 18 SZEEU 150 FCR 214 concerned five appeals in which various features of the application of s 424A were addressed. They include what constitutes information for the purposes of s 424A(1) as distinct from merely the process of reasoning of the Tribunal, when information has the character that attracts the application of s 424A(1), and when information has been given by an applicant to the Tribunal under s 424A(3)(b). Two of those features arise in this instance. That is, the contentions raise the following: (1) Was the absence of a complaint of threatened harm from the family and the brother of the appellant (the information) information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review? As noted above, the Federal Magistrate decided this issue adversely to the appellant. (2) Was the information given by the appellant to the Tribunal for the purpose of the application? It is accepted by the first respondent that the information was capable of constituting information as referred to in s 424A(1), that is that the absence of an earlier complaint of that character may itself constitute "information": see NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205 at [39] and [73]-[75]. 19 Inevitably, the question in (1) above must be addressed in the light of the Tribunal's reasons for decision. Although the obligation under s 424A(1) is imposed in the course of the Tribunal's consideration of the review, its relevant state of mind appears invariably to have been determined on the basis that its reasons disclose that state of mind. There is no unfairness in determining, based upon the Tribunal's reasons, whether the Tribunal was at the time it was making its decision minded to regard certain information as the reason or part of the reason for affirming the decision under review. The Tribunal, in the course of its review, may have many lines of thought. Some it may discard without more information but after more thought. Some it may discard after further information is to hand. That may include further information received from a visa applicant, such as by written submission. The purpose of s 424A(1) is to ensure fairness to a visa applicant in respect of information which would impact upon the Tribunal's decision, albeit by statutory prescription which must be complied with: SAAP v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 162. The visa applicant must be given a chance to respond to such information. But if information fleetingly, or even for some time, might have been relevant to the Tribunal's preliminary reasoning but was then discarded, there is no need in fairness for a visa applicant to have had a chance to comment on it. Consequently, as the appellant accepted, I shall take the Tribunal's reasons as the indicator of what it regarded as information which "would be" the reasons or part of the reasons for affirming the decision under review. See also SZEEU 150 FCR 214. 20 In my judgment, the Tribunal did not regard the information as part of the reasons for affirming the decision under review. It referred to it in the course of the hearing, but not in that part of its decision under the heading "Findings and Reasons". Of course, the mere location of the relevant reference in the reasons for decision is not conclusive of the issue: see e.g. the remarks of Weinberg J in SZEEU 150 FCR 214 at [164] quoted above. But the context of those remarks was different. Weinberg J was addressing a section of the Tribunal's reasons which appeared under the heading "Findings and Reasons", after it had rejected the claim but as a further reason to have reached that conclusion. In this matter, the Tribunal did not refer to the inconsistency, that is the failure to have mentioned the threats from his brother and family in his protection visa application, in the section of its reasons headed "Findings and Reasons". The Tribunal did not generally disbelieve the appellant. It did not reject what he said about his exposure to the Ahmadi faith and his knowledge of it. It was on that basis that it was not satisfied of his claimed conversion. A consequence of that finding was that the Tribunal was not satisfied that, even if converts to the Ahmadi faith were victimised by some Sunni Muslims, there was no reason why they would have victimised the appellant in the past or might do so in the future. It was on that basis that it rejected his claims of past assaults or threatened assaults by reason of his religious beliefs. It was fortified in that view by the delay between the appellant getting his visitor visa to come to Australia and his departure for Australia. It thought that, if the threat of harm was as grave as the appellant asserted, he would not have remained so long in Bangladesh. 21 That is not to say that necessarily, in considering whether s 424A(1) applied and was not complied with in respect of certain information, regard should be had only to the "Findings and Reasons" section of the Tribunal's decision (assuming the Tribunal has, as is almost invariably the case, such a heading in its reasons for decision). It is necessary to carefully consider the whole of the Tribunal's reasons. In addition, in some cases, it may be possible to say that some unexpressed view about the general credibility of the appellant may have played a part in the Tribunal's decision. But here the appellant's claims of having been assaulted were not accepted (other than the assault on 5 January 2005, which the Tribunal did not accept arose in the circumstances claimed) as a consequence of the Tribunal's acceptance of, and assessment of, the appellant's evidence about his conversion and his beliefs. The reference to the inconsistency as described simply appears in the Tribunal's recitation of the evidence of the appellant at the hearing. The appellant made the claim of threats from his brother and his family, and the Tribunal asked why it had not been made earlier. It noted the response. It would be surprising if the Tribunal had not reacted that way. But then, the Tribunal has made nothing more of that exchange. It has not made adverse findings about the appellant's credibility generally. Its process of reasoning was by a different path. That path did not involve it revisiting that exchange, or of making anything of that exchange. The path led it to reject the appellant's claims of past threats or assaults by reason of the appellant's religious beliefs. But its reasons do not indicate that that exchange was the reason, or part of the reason for affirming the decision under review. And there is no other indication that the inconsistency as described was the reason or part of the reason for doing so. Had it been of moment to the Tribunal, one would have expected the Tribunal to refer to it in more detail. It did not. It did not, for example place any apparent weight upon the explanation for not having earlier mentioned threats from his family or his brother. It appears to have made no more than a passing reference to that explanation. It also did not, for example, place any apparent weight upon the omission of those threats in the earlier statement. In my view, that exchange is no more than a recording of the natural course of evidence given during the hearing and the information then disclosed was not part of the reasons for affirming the decision of the delegate of the first respondent. 22 The recent Full Court decision in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 addresses the question of when information has been given to the Tribunal under s 424A(3)(b) of the Act, in particular per Young J (with whom Gyles and Stone JJ agreed) at 430-436, [41]-[64]. His Honour discussed the decisions of SZEEU 150 FCR 214 and NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357, each of which was relied upon by the appellant. I will not repeat that analysis, but I gratefully adopt it. His Honour then concluded at 435, [59]: These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific "information" for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU 150 FCR 214 and NAZY 87 ALD 357 suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal. 23 In this instance, the claimed inconsistency arises from two pieces of information. One, namely threats from the appellant's family and brother, was given by the appellant at the Tribunal's hearing. It evoked an understandable response from the Tribunal, based upon the earlier statement of the appellant. The second piece of information was the absence from the earlier statement of a reference to such threats. In the course of his response, the appellant acknowledged that the earlier statement did not refer to those threats. Had the Tribunal made anything of the claimed inconsistency, its knowledge of the inconsistency would have arisen in part from the hearing, and in part both from the earlier statement and from the hearing. The appellant at the hearing gave to the Tribunal, by way of confirmation, the information that his earlier statement did not refer to those threats. That information emerged in that way not through any subtlety on the part of the Tribunal, but in the natural course of questioning the appellant at the hearing, and because he raised the claims of the further threats. In that context, in my judgment, s 424A(3)(b) applied to that information. 24 I do not therefore have to consider whether the appellant, by the submission of his migration agent to the Tribunal on his behalf of 9 September 2005, also gave to the Tribunal all the contents of the protection visa application and the accompanying statement. That letter expressly refers to the protection visa application, but does not take the matter further. It may be read only as a reference to the event of the application rather than to its detailed contents. 25 The other matter raised in the grounds of appeal requires leave to be raised as it was not argued before the Federal Magistrate. 26 The so-called "delay" issue does not, in my judgment, demonstrate jurisdictional error on the part of the Tribunal. The contention was, in essence, that the Tribunal committed jurisdictional error by not taking into account the fact that the appellant promptly applied for a protection visa upon his arrival in Australia. The significance of that piece of information arises particularly, so it was argued, because the Tribunal had fortified its conclusion about the appellant having no well-founded fear of persecution for reasons of his religious beliefs with the delay between him getting a visitor visa to come to Australia and his arrival in Australia. 27 There is nothing in the Act or the Migration Regulations 1994 (Cth) which obliges the Tribunal to have regard to the temporal relationship between arrival in Australia and the application for a protection visa: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. The appellant, through counsel, did not pitch the case at that level but rather contended that the temporal relationship could not have been considered immaterial in the present context, or if considered immaterial then the Tribunal failed to explain its reasoning. Reliance was placed upon certain remarks of Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367. However, the point of the Tribunal's observations about the delay between the grant of the visitor visa to the appellant and his arrival in Australia is not diminished by him then having applied promptly for a protection visa. More accurately, I should say that the inference the Tribunal drew from the delay could reasonably have been drawn, even in the light of the prompt application for a protection visa once the appellant had arrived in Australia: see per Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 657. 28 The Tribunal is not obliged to discuss, in the section of its decision headed "Findings and Reasons" every piece of information which a visa applicant says may counterbalance other information upon which its decision may, in part, have been based. Here, the Tribunal was aware that the appellant applied promptly for a protection visa once he had arrived in Australia; it noted that fact in reciting the background to the claim. It placed weight upon the delay between the grant of a visitor visa and departure for Australia, for reasons which it explained and which were rational. In my view, the appellant's contention about error in the way it did so rises no higher than an allegation of factual error on a conclusion; it does not demonstrate jurisdictional error. Indeed, I think the contention does not demonstrate even that – on that topic – the Tribunal should have, or might have, reached a different conclusion. Nor does it show that the Tribunal overlooked the information which the appellant claims it overlooked. 29 In the circumstances, I would not give the appellant leave to argue on appeal the second proposed ground of appeal, as it was not raised before the Federal Magistrate and it does not have sufficient merit to warrant such leave being given. 30 For the reasons I have given, the appeal is dismissed. The appellant must pay to the first respondent his costs of the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 5 June 2007 Counsel for the Appellant: Dr J Azzi Counsel for the Respondent: Mr P Cleary Solicitor for the Respondent: Clayton Utz Date of Hearing: 9 May 2007 Date of Judgment: 13 June 2007