SZJXM v Minister for Immigration and Citizenship [2008] FCA 1252

FEDERAL COURT OF AUSTRALIA

SZJXM v Minister for Immigration and Citizenship [2008] FCA 1252

Migration Act 1958 (Cth) s 424A

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 cited VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 cited Minister for Immigration v Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 cited SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 cited SZJXM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD716 of 2008

LOGAN J

7 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD716 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJXM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 7 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The Appellants are to pay the First Respondent's costs of and incidental to the appeal, to be taxed, if not agreed. 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 NSD716 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJXM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE: 7 August 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellants are husband and wife. They are from India, from that part of India known as Gujarat. They came to Australia at the end of May 2006. On 10 July 2006, they lodged an application for that class of visa under the Migration Act 1958 (Cth) ("Migration Act") known as a Protection (Class XA) Visa. The lead claim, to use a perhaps inelegant description, was that of the male Appellant. Lead claim in the sense that his wife made no separate case for the grant of a protection visa. Rather, her claim was based on membership of the same particular social group as that of her husband. The detail as to how the claim was said to lead to satisfaction that they were persons to whom Australia owed protection obligations was found in the male Appellant's visa application. 2 As a matter of general summary, the essence of the claim was that the male Appellant was a Hindu who, for reasons of his religion and also political or related political activity, held fears of persecution. Later in July 2006, on 26 July, a delegate of the Minister, who is the First Respondent to the appeal, refused the Appellants' visa application. As was their right the Appellants applied for the review of the Minister's delegate's decision by the Refugee Review Tribunal ("the Tribunal"). 3 On 14 November 2006, the Tribunal decided to affirm the decision of the Minister's delegate to refuse the Appellants a protection visa. That decision was communicated to them along with the Tribunal's reasons by a letter dated 5 December 2006. Thereafter the Appellants applied for the judicial review of the Tribunal's decision by the Federal Magistrates Court. On 22 April 2008 for reasons which were then published the Federal Magistrates Court dismissed, with costs, their judicial review application. 4 There were multiple grounds of review pursued before the Federal Magistrates Court. Only one has been translated into a ground of appeal before this Court. That ground as set out in the notice of appeal is as follows: The Federal Magistrate failed to find that the Tribunal's decision was in breach of section 424A of the Migration Act 1958 and therefore fall under jurisdictional error. (a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with section 424A subsection (1) [sic]. 5 The point for decision on the appeal is therefore a narrow one. The male Appellant who appeared on his own behalf and on behalf of his wife on the hearing of the appeal did not in terms particularise the "information" to which the ground of appeal related. The approach adopted on behalf of the Minister in these circumstances was to look to the amended application which had been filed in the Federal Magistrates Court for guidance in respect of the requisite particularity in respect of "information." 6 Given that this is an appeal from the Federal Magistrates Court and that the Appellants are obviously concerned with that particular aspect of the Federal Magistrate's decision, this seems to me to be a very fair way of dealing with the appeal. In other words, it seems to me that it would not be fair or just to dismiss the appeal on the basis of a want of particularity in the ground of appeal. Paragraph 3 of the amended application before the Federal Magistrates Court was the paragraph concerned with s 424A. That paragraph is as follows: 3. The second respondent failed to afford the applicant procedural fairness in circumstances where he was not given an opportunity to respond to ALL adverse findings and inconsistencies in accordance with the requirements in section 424A of the Migration Act ( the "Act"). Particulars i) The Tribunal stated: "The Tribunal has before it the Department's file relating to the applicants. The Tribunal also has regard to the material referred to in the delegate's decision, and other material available to it from a range of sources." (RRT decision page 4.3); ii) Yet in the transcript of the hearing on page 3, paragraph 20.3 the Tribunal states: "Okay. In my decision I will consider relevant material in the department's file, as well as the Refugee Review Tribunal file. I give regard to article 182 of the 1951 Convention Relating to the Status of Refugees, which defines a refugee as being a person who, owing to a well-founded …" At no stage during the hearing did the Tribunal mention that it will use 'other material available from a range of sources'. Yet in the decisions record on page 4.3 the Tribunal makes this disclosure. iii) The applicant submits that the second respondent did not give the Applicant written notice in accordance with sections 424A & 441A of the Act of particulars of all information it considers would the reason, or part of the reason, for affirming the decision that is under review; iv) Under the heading 'Conclusion' of the decision record (RRT decision page 10) the Tribunal states: "having considered the evidence as a whole …" The applicant states that he was never told about or given the relevant information or even a statement to the affect that the information could be the reason or part of the reason, for affirming the decision made. v) An explanation ensuing that the Applicant understood why the information was relevant to the review and in particular that the information would be used in relation to the general assessment of the credibility of the applicant was never given to the applicant. 7 On behalf of the Minister my attention was drawn to a number of prior authorities which bear upon the construction of the word "information", as it appears in s 424A, and on the construction generally of that section. In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196, para 18, the following passage appears in the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ: Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the Appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of paragraph (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the Appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information." Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, para 24 that the word "information": "does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc." If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons, but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The Appellants were thus correct to concede that the relevant "information" was not to be found in circumstances or disbelief, as opposed to the text of the statutory declaration itself. 8 Earlier in time, in their joint judgment in Minister for Immigration v Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at pages 595-596, para 123, Merkel and Hely JJ observed: Accordingly, the remaining issue is whether the relevant country information was information that fell within the exclusion in s 424A(3)(a) because it "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 information was not specifically about the first respondent or another person. It was, however, about a class of persons: namely, the persons in Bangladesh who are likely to be targeted for violence by their political enemies. Significantly, the RRT found that the first respondent was not a member of that class. Without reference to authority, and applying a literal meaning to the words used in s 424A(3)(a), the relevant country information can be characterised as information that is not specifically about the appellant or another person and is not about a class of persons of which the applicant or the other person is a member. On that basis the information would not be excluded under s 424A(3)(a) and would therefore be required to be given under s 424A(1). 9 Later in their joint judgment at pages 599-600, para 138, their Honours further observed: As is demonstrated by the differences of opinion within the Court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14]. It follows that the Magistrate was in error in failing to find that the relevant country information fell within the exclusion in s 424A(3)(a), and in finding that the RRT failed to comply with s 424A(1). 10 Observations made by Allsop J, as his Honour then was, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 262, para 216 also serve as a reminder of the need, in relation to the application of s 424A in particular cases, to read the reasons of the Tribunal as a whole, in order to understand whether particular "information" truly provided the "reason" for the Tribunal's decision. 11 When one reads the reasons for decision of the Refugee Review Tribunal one sees the following paragraphs which in the circumstances of the present case are material. At appeal book page 90: As put to the applicant in the course of the hearing, generally speaking, members of the Hindu community in India are not ill-treated. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means he has suffered any persecution as contemplated by the Convention or that there's a real chance of this occurring to the applicant in the reasonably foreseeable future. The Tribunal appreciates that there are religious based tensions in India. However, on balance, independent country information indicates that whilst there are problems in some areas, the Indian Constitution provides for freedom of religion and that the government generally respected this right in practice – etcetera. 12 Further, at appeal book page 91, the Tribunal stated: In essence, the Tribunal is not satisfied that there are Convention reasons as to why the applicant should not return to India. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means that there is a real chance of persecution as contemplated by the Convention occurring to the applicant in the reasonably foreseeable future. Notably and by his own admission, the applicant wants to stay in Australia to work, raising serious doubts about his claims of persecution. In sum, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. 13 The Tribunal's reasons are very detailed indeed. Reading them as a whole, one sees that influences on the conclusions reached in the passages which I have quoted were an assessment by the Tribunal of the male Appellant's credibility, having regard to evidence which he gave before the Tribunal and independent country information. 14 The authorities to which I have made reference make it plain that the country information does not constitute "information" for the purposes of s 424A and further, that the Tribunal's views in relation to credibility do not constitute "information". Those views do not seem to have been informed by reference to anything provided in the initial visa application. Thus, the question as to whether the exclusion found in s 424A(3) as it stood prior to the insertion of s 424A(3)(ba) is not raised for consideration. 15 The male Appellant, in his submissions, made reference to a situation as he had found it in Gujarat. As I pointed out in the course of those submissions, that particular information and submission is not relevant for the purposes of the appeal, nor would it have been relevant in the proceedings before the Federal Magistrate. It was no part of the role of the Federal Magistrate to make a finding on the merits of the visa application and much less is that the role of this Court on an appeal. The factual merits of a visa application are matters for the Minister or his delegate in the first instance, and upon review, if sought, for the Refugee Review Tribunal. 16 Regard to the reasons for judgment of the learned Federal Magistrate discloses that her Honour addressed specifically the ground of challenge under s 424A. Her Honour's conclusion, in respect of the merit of that ground, are coincident with my own. In short, her Honour concluded that the country information and what the Tribunal made of inconsistencies that it saw in the male Appellant's evidence did not amount to "information" for the purposes of s 424A (see para 31 and para 32 of the reasons for judgment). 17 For these reasons, my opinion is that the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.