MZXBQ v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This appeal from the Federal Magistrates Court (MZXBQ v Minister for Immigration [2007] FMCA 1835, Burchardt FM) raises two questions: (i) whether information which the Refugee Review Tribunal indicates in the course of the hearing, and prior to delivery of its reasons, is relevant to an assessment of the credibility of the appellant's claims, but which is not mentioned in the reasons for affirming the decision under review, comes within the obligations imposed by s 424A of the Migration Act 1958 (Cth); and (ii) whether the learned Magistrate erred in finding that the lack of any reference in the Tribunal's reasons to the information in question had the effect that s 424A had no application. 2 Section 424A at the relevant time provided as follows: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to 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. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (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 for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non‑disclosable information. 3 The appellant is a citizen of Sri Lanka who arrived in Australia on 8 January 1996. On 29 June 1997 he lodged an application for a protection visa. The Tribunal decision affirmed by the Federal Magistrates Court was the third Tribunal hearing on the appellant's claims. Two earlier decisions of the Tribunal had been set aside. 4 The appellant claimed to have well-founded fear of persecution arising from his support of the United National Party. He claimed that he was subject to physical attacks because he had witnessed the Sports Minister, a member of the opposing party, buying votes during an election campaign. The appellant claimed the Minister had arranged for the appellant's kidnap and murder. The appellant went into hiding and fled Sri Lanka. 5 For the purposes of the present appeal the only "information" said to have engaged the operation of s 424A is that friends of the appellant contributed $20,000 to provide a bond for his release from immigration detention. 6 The transcript of the hearing shows that the Tribunal questioned the appellant about what it described as "another big issue for me in terms of your credibility". That issue was the appellant's assuming a false identity and using another person's passport to obtain work as taxi driver. As a result the appellant had been placed in immigration detention for breaching his visa conditions by working. After questioning the appellant about this issue the following exchange took place: Tribunal: I don't want to look into the legal [sic] again. I'm concerned that there is solid evidence on this file about your credibility and therefore that supports credibility concerns the Tribunal has. May I ask you, a very good friend of yours put up a $20,000 surety for you. Who is this person who had $20,000 that they could put up so that you could be released from detention? Interpreter: (indistinct) Tribunal: Who is he to you? What is his relation to you? Interpreter: He is a friend of mine. Tribunal: A friend of yours gave $20,000? Interpreter: Not one, they all gave the money and put it under his name and it was for the $20,000 for the detention. Tribunal: Yes. And yet you have no money to live in Australia but these people were able to $20,000 [sic] for you? Interpreter: I'm a good friend of theirs, that's why they do it. Tribunal: So they couldn't support you when you were broke, you had to assume a false identity and lie that they could support you with $20,000 when you were caught. Is that correct? Interpreter: They have helped me; they have bought me food. The Tribunal then proceeded to ask the appellant the names of his friends, which he gave. 7 The hearing was held on 29 June 2006. On 17 November the Tribunal sent a lengthy letter under s 424A inviting the appellant to comment on six issues. The fifth issue concerned the breach of his visa condition and false statements given to the Department about that. It was said: This information is important because it indicates that you were not honest in your interview regarding your illegal driving until you were confronted with evidence to the contrary. Accordingly it may support the finding that you are not a witness of the truth. 8 The Tribunal's letter did not mention the $20,000 bond issue. 9 The appellant responded in an undated letter which was received by the Department on 30 November 2006. In relation to the fifth issue he said that he did work illegally in Australia as he had no relatives or friends for indefinite support. He had to live somehow. He regretted that he "had to use illegal means to help me to simply stay alive". 10 In rejecting the appellant's claim the Tribunal found that he "lacks credibility in all of his claims and has not been a witness of truth". The Tribunal supported this general finding as to lack of credibility "by reference to his lack of honesty in his interview with officials regarding his breach of the conditions of his visa when he assumed the identity of Mohamed Vasih and worked in both this name and his own". The Tribunal's reasons, like the s 424A letter, contained no mention of the $20,000 bond. 11 Before the Federal Magistrates Court the appellant alleged another breach of s 424A which has not been pursued on the present appeal. In relation to the $20,000 bond issue the learned Magistrate noted at [19] the interchange between the Tribunal and the appellant already referred to, the fact that the issue had not been referred to in the s 424A letter and "more importantly, (had not been) referred to in the Tribunal's reasons for judgment either". 12 His Honour noted that counsel for the appellant had nonetheless suggested that the use of the phrase "future conditional" in the High Court's decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 required the Tribunal to give notice of this in the s 424A letter. The learned Magistrate said at [21]: The reality is of course that in its findings and reasons - in other words those parts of the decision that operate as a springboard for s 424A to apply - the Tribunal made no reference whatever to the bond issue. It referred to another of other matters which went to the applicant's credit, but not that one. The learned Magistrate then said that even if it were shown that the Tribunal had breached s 424A he would reject the application for constitutional writs on discretionary grounds. Findings made in relation to those matters in respect of its decision were "unimpeachable" so there would be no utility in returning the matter. 13 On the appeal counsel for the appellant argued: 1. SZBYR establishes that it is not the Tribunal's published reasons or its reasoning process which determines the applicability of s 424A. The learned magistrate erred in treating the absence of any mention of the $20,000 bond issue in the Tribunal's reasons as determinative; 2. The material about the bond was "information" within the meaning of s 424A. It was not a case of mere inconsistency or omission; 3. The information went directly to the issue whether the appellant was to be believed in all his claims; 4. The information would "undermine" the appellant's claims to be a person to whom Australia owed protection obligations because he was not to be believed in his claims. 14 Counsel for the Minister argued: