MZXBM v Minister for Immigration and Citizenship

Tribunal's reasons 6 The Tribunal accepted that the appellant had some involvement in politics as a student in Bangladesh. It accepted that in 1999 the applicant and the President of the Mirpur Dhaka branch of the BCL disagreed about the direction the Awami League was taking in relation to gaining support for the upcoming election. It accepted that from 2000 the applicant again made his opposition known to the Awami League's actions of using the BCL to collect money and threaten people to support it. It accepted his actions may have led to him being forced out of his position in the BCL and being asked to leave the party. However, it did not accept that any attempt had been made on his life. It also did not accept that the appellant was of any interest to either the Awami League or the BNP after he left the party and it rejected assertions that he was pursued by authorities on the basis of his political opinions. In particular, the Tribunal noted inconsistencies in the appellant's evidence, including contrasts between his original application where he claimed to have been 'in pressure' from political opponents and his later claims at the Tribunal hearing which included that he had been accused of murder and was wanted by authorities. The terms of its findings were set out in the following passage which I will subsequently refer to as 'the critical passage': 'The Tribunal does not accept the applicant has ever been of any interest to the Bangladesh National Party as he has claimed. It does not accept that the BNP sued him for killing someone at the end of 1998 or beginning of 1999. The Tribunal notes the applicant only made this very significant claim for the first time at the hearing. The Tribunal does not accept the applicant would have failed to raise this claim at an earlier stage, given its importance, if it had occurred. It notes all the applicant had previously claimed was that the BNP had put pressure on him, as well as the Awami League. The Tribunal finds being accused of murder and having a warrant issued for your arrest is considerably more serious than having pressure on him. Although the applicant explained he had provided the arrest warrants, the Tribunal notes that he never stated what these arrest warrants were related or [sic] or who had been responsible for their existence. Given the lateness of this claim, the Tribunal does not accept the applicant was sued by the BNP for killing someone in 1998 or 1999. It therefore does not accept he had to go into hiding for a couple of months as a result of the warrant for his arrest or that any upper level politicians of the Awami League influenced the police not to take any action. The Tribunal is further supported in its finding that the applicant was not accused of this crime in 1998 or 1999 by the fact it does not accept the arrest warrants he submitted were genuine. The Tribunal is satisfied the three arrests warrants are not legitimate on the basis that all three documents have no dates recorded on them anywhere. The Tribunal has no idea when these alleged arrest warrants were actually executed given that there is no date provided. It does not accept that any court in Bangladesh would issue a warrant for the arrest of someone without recording at the very least the date on which the warrant was made. Therefore, on the face of these documents, the Tribunal does not accept that these warrants are credible.' 7 While the Tribunal accepted that the appellant may have been attacked and robbed upon returning to Bangladesh in 2003, the Tribunal did not accept that this attack was politically motivated and was not satisfied that this event was a result of any activity likely to be of sufficient nexus to the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967. The Tribunal concluded that the appellant did not show a well-founded fear of persecution now or in the reasonably foreseeable future should he return to Bangladesh.

Federal Magistrate's reasons 8 The appellant sought review of the Tribunal's decision on 22 August 2005 on what the Federal Magistrate described as a very narrow ground. It was whether the Tribunal had failed to give to the applicant - as required by s 424A of the Migration Act 1958 (Cth) (the Act) - particulars of the reason, or part of the reason, for affirming the decision under review, namely, that there was an inconsistency between the statement of the appellant with his protection visa application that the BNP had put pressure upon him and his information to the Tribunal that such pressure arose from him being sued by the BNP for murder. In particular, this required his Honour to consider whether the failure to mention the murder charge in the appellant's original application and then to have it raised at the Tribunal hearing amounted to 'information' that is required to be made available for comment pursuant to s 424A of the Act. That section does not apply to information 'that the applicant gave for the purpose of the application' (the reference to application being understood as a reference to the application to the Tribunal for review as opposed to the original application for a protection visa: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 and s 424A(3)(b)). The other issue before his Honour was therefore whether this exception was applicable on the facts. 9 In relation to the first issue, whether the failure to mention the nature of the murder charge in the protection visa application constituted 'information', the Federal Magistrate regarded the issue as not assisting the appellant because it was beyond doubt that the information in the original application had been adopted so that the exception in s 424A(3) of the Act was applicable if s 424A had been engaged. 10 His Honour's conclusion of the fact of adoption was based on the following circumstances set out in his reasons at [15]-[17]: 'This issue is, in my view, readily determined by examining the application for review filed with the Tribunal. It appears on pages 129-135 of the Court Book (CB). There can be no doubt that the statement attached to the printed form of the application appearing at pages 133-135 is part of the applicant's application to the Tribunal. Relevantly, that statement says: "I, [the appellant], am applying for your consideration review of the decision made about my protection visa application as my application was unsuccessful. I want your kind reconsideration about all my papers submitted and the circumstances provided below that made me to apply RRT. (emphasis added)

1. Reasons for which I believe the information I provided was creditable The refusal letter sent to me pointed out a number of reasons why my application for protection visa was refused. Among those a question of creditability of the information I provided has been raised against which I have the following to say 1.1 In my first application I mentioned myself as a leader of Chattra League which is student organisation of Awami League currently the major opposition party in Bangladesh. In the second letter I specifically mentioned my position and provided corroboration evidence as asked by the Department of Multicultural and Indigenous Affairs." (emphasis added) The reference to the "first application" and his leadership of the Chattra League is a clear reference to the original application for a protection visa appearing at pages 1-18 of the CB; in particular to the statement appearing as an attachment to that application at page 16 of the CB. That statement is the one that makes reference to him being "in pressure from both my party and the opposition" and the one used by the Tribunal to highlight the apparent inconsistency going to credit between the original protection visa application and the evidence given by the applicant at the Tribunal. Further, the reference to "in the second letter" is clearly a reference to the document appearing at page 47 of the CB. That document refers to the issue of the three warrants, without it specifying the warrants were issued (or at least one of them) in respect of him being sued for murder.'

Grounds of appeal 11 In the notice of appeal filed by the appellant, it is claimed that the Federal Magistrate erred by not concluding that the Tribunal had failed to comply with s 424A of the Act. Specifically, the appellant asserts that the Tribunal was obligated to provide him with particulars as to how information contained in his visa application regarding statements that the BNP had placed pressure on him, was to be used in the Tribunal's decision making process. The appellant argues that this information was wrongly classified by the Federal Magistrate as information falling within the exception contained in s 424A(3)(b).

Appellant's contentions 12 The appellants arguments commence from and rely upon 'the critical passage' of the Tribunal's reasons set out above. That is supplemented by other briefer passages to similar effect. The appellant submits that the paragraph betokens jurisdictional error as being identical to the impugned reasoning in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 89 ALD 242 at [26]-[28]-[30] and [34]; SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1203 at [25]-[25]; SZEEU 150 FCR 214 per Weinberg J at [158] and Allsop J at [220]-[221]; SXSB v Minister for Immigration and Citizenship [2007] FCA 319 at [19]; NBKS v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 205 at [32]-[39] per Weinberg J at [74] per Allsop J; SZGGT V Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72]; SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [25]-[26] and SZCNP v Minister for Immigration and Multicultural Affairs [2006] FCA 1140 at [17]. 13 From these authorities the appellant relies in particular on the statement of Allsop J in SZEEU 150 FCR 214 at [221] (with which Weinberg J agreed at [158]) where his Honour said: '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 at [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).' The appellant submits that the genesis of this reasoning was in SZECF 89 ALD 242 and the reasoning of Allsop J at [30] to the effect that the relevant information is the information that on an earlier occasion the appellant said so much and no more. It is only when that information is part of the reason for the decision that it engages the section: [29]. At [34] his Honour continued: '… the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent.' 14 The appellant then relied upon NBKS 156 FCR 205. Reference was made to [32]-[39] where Weinberg J canvassed decisions to support the proposition that there is no uniformity in the case law on whether the term 'information' in s 424A of the Act is confined to positive statements of fact or whether it can encompass omissions. He concluded that each case must depend upon its own particular circumstances, there being no reason in principle why an omission which is plainly adverse to an applicant's case should be treated any differently than a positive statement. Allsop J accepted the same position at [74]. 15 Turning to the issue of republication or adoption and the application of the exception in s 424A(3)(b) the appellant placed reliance upon the following passage in the reasoning of Young J in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [59]: '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.' The appellant submits that what appears to be decisive is whether the form of words used by an applicant can be construed as an express request to consider all the claims of the applicant put forward before the delegate and amounts to an explicit affirmation of those claims. The appellant contends when this is done there was no affirmation of specific facts nor active affirmation of the accuracy of what was advanced in the primary application. 16 In support the appellant's submissions canvas a number of decisions, to which reference will be made in large part in the reasoning below.

First respondent's contentions 17 The respondent brings two contentions, each to the effect that on the facts the information (being that in his visa application that the BNP had placed pressure on him) was given to the Tribunal for the purposes of the review. The first was by republication and the second by adoption. 18 As to republication, the first respondent contends that republication occurred by way of the statement which accompanied the application to the Tribunal for review. That was a statement of the appellant in which he stated 'so I was in pressure from both of my party and the opposition'. Later at AB133 the appellant stated in his letter to the Tribunal seeking review 'I want your kind reconsideration about all my papers submitted and the circumstances provided below that made me to apply RRT'. It is submitted that his Honour was correct to find that this statement was an effective restatement. 19 Authority for this is sought firstly in the reasoning of Rares J in SZGGT [2006] FCA 435. In [36] Rares J said: 'In this, as in a number of areas of the law, I am of opinion that the question whether an applicant for review has given information for the purpose of the application within the meaning of s 424A(3)(b) when it is sought to say that he or she 'republished' something which had been provided at a different time by him or her, it is necessary to make an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood.. At [42] his Honour stated: '… The precise terms in which the republication was said to have taken place are not set out in his Honour's judgment. Each case will obviously depend on its own facts. …' At [44] he stated: 'Attention needs to be paid in each case to what s 424A(3)(b) identifies as the information 'that the applicant gave for the purpose' of the application for review. Of course, there will be cases where the applicant puts forward everything in the departmental file provided originally by him or her to the delegate. But such a result flows from the facts of the individual case. If the Parliament had intended otherwise it would have been easy to make the natural exception in s 424A(3) of the material which the applicant provided to the Minister originally and then to provide, as is now discretely provided in s 424A(3)(b), for other information. Because the Parliament has identified the elements integral to a fair procedure of review in the way in which Division 4 of Part 7 of the Act provides, I do not think it appropriate to add glosses to that or to provide easy means for avoiding consequences which may be inconvenient in the construction of the provision.' 20 The first respondent argues that, consistently with this approach, a reasonable person would have understood from the statement the appellant relied upon that he wanted the Tribunal to take a fresh look at all the papers he had submitted. For republication to thus occur, it is said by the first respondent that there is no distinction to be drawn between a physical handing up of the previously published material and a mere submission: cf M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131. 21 Additionally the first respondent submits that support for the objective approach favoured by Rares J is to be found in other single judge decisions in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [44] per Heerey J; SZCNP [2006] FCA 1140 at [18] per Tamberlin J; and SZDAP v Minister for Immigration and Multicultural Affairs [2006] FCA 1598 at [22] per Middleton J. 22 As a further and alternative contention the first respondent argues that it is open to the Court to find that information was adopted by way of oral evidence and argument provided at the hearing. It is submitted that the issue is to be judged on whether the review applicant can be said, on the basis of the material before the Court, to have been aware of the information and with that awareness to have affirmed the information. This proposition is said to find support in SZEEU 150 FCR 214 and NBKT 156 FCR 419. 23 The starting point of the facts which the first respondent contends would have supported a finding of adoption is the claim made by the appellant before the Tribunal in which he claimed for the first time that the pressure was experienced as a consequence of his having been sued for murder. When it was put to him he had not mentioned this in his statements to either the Department or the Tribunal the Tribunal's reasons record: 'The applicant stated he did not think he had to explain all the issues against him. He just gave all the papers.' Additionally the appellant engaged in endeavouring to persuade the Tribunal there was no real contrast between his claim as put in the protection visa application and his claim as he presented it at the hearing. 24 Based on this, the first respondent contends the appellant should be understood as affirming the information so that, consistently with the adoption line of authorities, the application of s 424A(3)(b) was attracted.

Reasoning 25 I accept the appellant's submissions that the 'information' for the purposes of the application of s 424A(1)(a) is the knowledge imparted to the Tribunal of the prior statement in the particular form that it related to the application of pressure to the appellant without ascribing to that pressure any association by the appellant with murder. Additionally I accept that without the application of the exception in s 424A(3)(b), the Tribunal would have been in jurisdictional error in the critical passage of its reasons unless it had complied with s 424A(1)(c) and invited the applicant to comment on it. 26 On the issue of republication and adoption, there is a 'blizzard of cases': VWBF 154 FCR 302 at [23] per Heerey J. It is necessary, in the light of the facts in this appeal, to distinguish and put to one side generally those cases raising the issue of whether information has been given for the purpose of the application to the Tribunal where the information has been elicited as the consequence of a question from the Tribunal to an applicant. Of more relevance here on their facts are those cases where the applicant has expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal. In drawing this distinction in MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826 Kenny J cited as illustrative of this latter category M55 [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT [2006] FCA 435 at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural Affairs [2006] FCA 451 at [37] per Graham J; VWBF 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. As her Honour stated, in these cases s 424A(3)(b) was held to apply. Examination of the manner of giving in each of them may be instructive in relation to the effect of the words used by the appellant. 27 In M55 [2005] FCA 131 the applicant's barrister had forwarded a written submission to the Tribunal prior to the hearing of the application for review. That stated that the applicant's claims were set out in a detailed statement to the Department, an interview and in the application for a protection visa. Gray J found that the applicant thereby invited reference to these materials so that it could be concluded the information (deriving from a copy passport in the materials) had been given to the Tribunal. In VUAV [2005] FCA 1271 the applicant had stated in his application to the Tribunal 'please refer to my previous statement for further information', which was accepted as being a reference to his visa application. In SZGGT [2006] FCA 435 the applicant for review had written that he had given full explanations in his previous statement and that certain matters were as he had explained before. However, this left undetermined the extent of the incorporation by reference and, adopting the objective approach referred to above, Rares J held the incorporation extended only to what had been said to the Department about his activities in China and not the whole of the information which had been given to it contained in the file. In SZCKD [2006] FCA 451 the information had been provided to the Tribunal by the applicant's agent in a 31 page facsimile including a number of other documents. In VWBF 154 FCR 302 the information in question was advanced on behalf of the applicant in a letter from his migration agent which stated that the applicant had already sent a statement to the Tribunal and requesting reference to a number of earlier statements and interviews. In SZCBQ [2006] FCA 1538 the applicant had stated in his application to the Tribunal 'Please Refer my Statement Claim of my Refugee Application'. I am unable to distinguish from this variety of language found to have effect as a giving for the purpose of s 424A(3)(b) from the language used by the present appellant. He expressly invited reconsideration about all his papers submitted. 28 Examination of the language on its own does not lead to any different conclusion. On application of the appellant's own test, the form of words used by an applicant can be construed as an express request to consider all the claims of the applicant put forward before the delegate and to amount to an explicit affirmation of those claims. The words request 'reconsideration about all my papers submitted'. Point 1 in the words used asserts the information provided was creditable. 29 The appellant asserts that the bare reference to 'the first application' and 'the letter' are insufficient to bring the exception in s 424A(3)(b) into play. This is a matter to be judged in the circumstances. Those circumstances include a preceding reference to a reconsideration 'about all my papers submitted and the circumstances provided below that made me to apply' to the Tribunal. Those words are themselves sufficient to bring into application the exception and the later reference to the first application and the letter must be construed within that context. 30 Nevertheless the appellant contends that greater specificity is now required to found a republication or adoption in the light of the reasoning of the Full Court in NBKT 156 FCR 419 at [59] where Young J (with whom Gyles and Stone JJ agreed) stated: '… 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 SZEEU150 FCR 214 and NAZY87 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.' The reference to SZEEU150 FCR 214 is a reference to what had earlier been described by Young J at [54] in the following terms: '… In one of the five appeals considered in SZEEU150 FCR 214, SZBMI, the appellant's protection visa application attached a written statement in which the appellant explained in some detail the circumstances in which he had fled overseas from Bangladesh ("the flight information"). Before the Tribunal, the appellate confirmed that he had read his earlier statement before signing it and that it contained true and correct information. This evidence founded a submission that the flight information had been adopted at the hearing before the Tribunal and consequently fell within the exception in s 424A(3)(b). Moore J did not accept that this evidence transformed the flight information into information that the appellant had provided to the Tribunal in his application for review. His Honour added that, in his opinion, the approach of Jacobson J in NAZY87 ALD 357 was correct. Weinberg J said (SZEEU150 FCR 214 at [157]) that the adoption of the earlier statement by the appellant did not render it information provided by him in his application for review. Allsop J agreed with Moore J that the flight information fell within s 424A(1). His Honour did not expressly address the exception in s 424A(3)(b): SZEEU150 FCR 214 at [219].' The approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 was described by Young J at [52]: 'In NAZY87 ALD 357, the relevant information comprised a statement in the protection visa application that the applicant had not previously been convicted of a crime or offence in any other country. Subsequently, the applicant stated in his application to the Tribunal that he had been convicted of an offence in India. In the course of the hearing, the Tribunal asked the applicant who had completed the protection visa application for him in English, as he was not fluent in English. The applicant said that a friend had completed it for him. Later, the Tribunal asked the applicant to explain the inconsistency between the statement in the protection visa application and his subsequent statement that he had been convicted of an offence. The applicant's response was that the inconsistency was as a result of a translation. In these circumstances, it is not difficult to understand Jacobson J's conclusion (NAZY87 ALD 357 at [39]) that it cannot be said that the appellant provided the information in the protection visa to the Tribunal as part of his application. It is, however, another step to accept the general proposition that information given in the course of a Tribunal hearing must be put forward in chief before it can fall within the exception in s 424A(3)(b).' 31 I do not consider that [59] in NBKT 156 FCR 419 can be understood as having required a new standard of specificity in relation to information expressly given to the Tribunal before the hearing. In the first place the appellant in NBKT 156 FCR 419 relied 'heavily' on NAZY 87 ALD 357 at [48]. In NAZY 87 ALD 357 the Court held that the exemption in s 424A(3)(b) applies to information from a protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review. He also held that information provided by an applicant during questioning by the Tribunal member in the course of a hearing does not fall within the scope of s 424A(3)(b) and that the mere adoption of an earlier statement at the hearing before the Tribunal does not render it information given by the applicant for the purposes of the review. When Moore J considered this in SZEEU 150 FCR 214 at [20] he said: 'In my opinion, the flight information was "information" for the purposes of s 424A(1). What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal. I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairswas correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. However, it cannot be said, in this case, that the Tribunal acted in such a way.' Weinberg J at [157] agreed that the adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review. 32 Returning to [59] in NBKT 156 FCR 419 it is apparent that Young J was drawing on authority relevant to instances of information being elicited during the hearing before the Tribunal, which is not this case. Young J at [62] accepted that the information in NBKT 156 FCR 419 given by way of written submission from her advisor was given for the purposes of s 424A(3)(b), applying VWBF 154 FCR 302 at [51]. 33 Furthermore, as was stated by Young J in NBKT 156 FCR 419 at the commencement of [59], the 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'. Applying that approach I do not consider the decision reached by his Honour can be said to be in error.

Conclusion 34 The appeal should be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Solicitor for the Appellant: PM Wijesooriya