MZXGB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate made on 31 October 2006 in which the Federal Magistrate dismissed the appellant's application for judicial review and ordered the appellants to pay the first respondent's costs fixed in the sum of $5,000. 2 The appellants are husband and wife. The chronological history of the matter is important having regard to the complaints raised by the appellants. 3 The appellants are citizens of Sri Lanka. The first appellant entered Australia on 27 July 2004 and the second appellant on 4 December 2004. 4 On 11 August 2004 the first appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was). 5 On either 23 December or 30 December 2004 (the exact date unclear but unimportant), the second appellant lodged her own application for a protection visa with the Department. She relied on her husband's claim which she said gave rise to a real chance of her being persecuted if she were to return to Sri Lanka in the reasonably foreseeable future. 6 A delegate of the first respondent considered the appellants' claims separately and on 2 August 2005 decided in separate written decisions to refuse to grant them protection visas. 7 The appellants lodged separate applications with the Refugee Review Tribunal ('the Tribunal') for a review of the delegate's decision. Both applications were lodged by a registered migration agent and both were received by the Department on 8 August 2005. 8 On 15 September 2005 the first appellant was advised that his hearing would take place on Tuesday, 8 November 2005. On the same day, the second appellant was advised that her hearing would take place on Wednesday, 9 November 2005. 9 Both were invited to the hearing and both were invited to send any new documents or written arguments to the Tribunal and answer all other questions by 3 October 2005. Both attended their hearings. 10 The first appellant's migration adviser was advised on 21 November 2005 that the decision in his matter would be handed down on 1 December 2005. The second appellant's migration agent, being the same migration agent as represented the first appellant, was advised on 1 December 2005 that the decision in her application would be handed down on 8 December 2005. 11 In both cases the Tribunal affirmed the decision of the delegate not to grant the appellants protection visas. 12 On 4 December 2005 the applicants jointly applied to the Federal Magistrates Court for a judicial review of those decisions. 13 As already mentioned, the Federal Magistrate dismissed their application on 31 October 2006. 14 On 20 November 2006 the appellants appealed to this Court. 15 The Tribunal found that the first appellant was a 32 year old male of Sinhalese ethnicity and a practising Buddhist and a citizen of Sri Lanka. It found that the first appellant was married to the second appellant and they have one child. 16 The Tribunal found that the first appellant was a supporter of the United National Party ('UNP'). It found that the first appellant was a businessman whose driver had been attacked by people of Tamil origin. It found, however, that the driver was the target of the attacks, not the first appellant because the attacks ceased when the driver was replaced. 17 It found that the appellant was involved in an incident with the Tamil where he and his driver were attacked and gunshots were fired at their vehicle. However, the Tribunal found that the incident appeared to be a criminal attempt to extort money from a businessman who had the capacity to pay extortion money. 18 It found that the first appellant was a subcontractor to a head contractor who supplied goods to the Army. The Tribunal found that the first appellant was subject to threats from the head contractor and senior political figures, including a Minister of the Government. It found, however, that the threats were not motivated by any political reason or any other Convention reason but by a desire on the part of the head contractor and the senior political figures to protect their own business interests from competition in the market. 19 The first appellant claimed that the senior political figure arrived at the first appellant's home in July 2004 and issued threats directed to the first appellant and attacked the first appellant's father-in-law who was in the home at the time. The first appellant claimed that, as a result, he went into hiding. He said that he referred the matter to the police who did nothing about it. The perpetrator was, so the first appellant claimed, a Minister in the Sri Lankan Government. 20 The Tribunal was not satisfied that the Minister ever attended the first appellant's home, made the threats or attacked the first appellant's father-in-law. It further found that the first appellant did not report the incident to the police. 21 The Tribunal found that the first appellant did not suffer any serious harm for any Convention related reason prior to his leaving Sri Lanka. 22 The first appellant also claimed that if he were to return to Sri Lanka in the reasonably foreseeable future he would suffer harm from the Minister, the Chief Minister and people associated with those people 'because they view (the applicant) as a political opponent and because they seem him as a business threat who may tender for work they are currently involved in and force them to reduce their prices or else lose their existing business'. 23 The Tribunal found that if he were to return to Sri Lanka the persons about whom he complained would view him as a threat to their business interests and that he may therefore be subject to threats from those people. 24 However, the Tribunal found that the persons about whom he complained were not motivated to threaten the applicant because of any political opinions that he held or for any Convention related reason. Rather, their threats were motivated by a fear of commercial competition from the first appellant. 25 The Tribunal then considered the first appellant's claim in the light of s 91R of the Act and found that there was no real chance that he would suffer serious harm as contemplated by s 91R for his political activities or for any other Convention related reason. 26 The Tribunal affirmed the decision of the delegate not to grant the first appellant a protection visa. 27 The second appellant consented to the Tribunal using the evidence her husband had provided in his hearing in support of her application for a protection visa. She confirmed to the Tribunal that her claim was because 'she feared harm because of her husband's problems and not because of anything she had done herself. She claimed that she used to indirectly help her husband by looking after the business when he was engaged in political activities and by not objecting to his wishes to be involved in politics. She confirmed that she feared harm from her husband's enemies'. 28 The Tribunal relied on its findings in the first appellant's application and found that any threats or intimidation which might be occasioned to her husband, and therefore to her, was not related to a Convention reason. 29 It rejected her claim that her membership of a particular social group, being her husband's family, entitled her to a protection visa because of the finding that the persecution feared by the second appellant's husband was in relation to business interests and not for any Convention related reason: s 91S. It affirmed the Minister's delegate's decision not to grant the second appellant a protection visa. 30 In the proceeding before the Federal Magistrate, the appellants complained that the Tribunal failed to give the appellants sufficient time 'to obtain further documentation'. They also complained that the Tribunal failed to comply with s 424A of the Act in respect of two pieces of information: (a) two anonymous 'dob in' letters; and (b) country information. They complained that the Tribunal did not consider a claim which had been raised by the first appellant in that he faced a real chance of persecution on account of his membership of a particular social group, namely, businessmen. They complained that the Tribunal failed to consider the availability or effectiveness of State protection. They complained that the Tribunal did not consider the appellants' subjective fear of persecution. Lastly, they complained that the Tribunal failed to afford the appellants procedural fairness. 31 The Federal Magistrate rejected all of those complaints. The Federal Magistrate found that the appellants had been given sufficient time to present their case. He found that there was no breach of s 424A because that section did not apply in respect of the information contained in the two 'dob in' letters and the country information. He found that no claim had been made by the appellants to the Tribunal that the first appellant, and indeed the second appellant derivatively, feared persecution on account of their membership of a particular social group of business people. 32 The Federal Magistrate found that because the appellants had not made out their claim of fear of persecution for a Convention reason, it was unnecessary for the Tribunal to consider the issue of effective State protection. For the same reason, the Federal Magistrate found that the Tribunal was under no obligation to consider their subjective fear of persecution. 33 Lastly, the Federal Magistrate found that, because of the provisions of s 422B of the Act, the appellants' claim of failure to provide procedural fairness had to be rejected. 34 Although this is an appeal from the Federal Magistrates Court, the success or otherwise of the appeal must depend upon whether or not the Tribunal's decisions were affected by jurisdictional error. Therefore, whilst the Federal Magistrate's reasons are helpful, it is still necessary for this Court to determine for itself whether the Tribunal's decision was affected by jurisdictional error. 35 The appellants were unrepresented on this appeal but it is clear that they had received some advice from someone with some knowledge of the Migration Act and decisions made under that Act. 36 They better articulated their grounds of appeal in written submissions which were put in support of their appeal. 37 I set out the grounds of appeal as articulated in that written submission: '(a) The Tribunal and Federal Magistrates Court failed to consider the First Appellant's express claims that he and his immediate family were at real risk of persecution because of his membership of a particular social group namely being a businessman and also being a member of the UNP. (b) The Federal Magistrates Court failed to consider Appellant's fear of persecution arising out of the open support, financial and otherwise, that he gave to the UNP. (c) The Tribunal and Federal Magistrates Court failed to review and consider the applications for purposes of sections 47, 65 and 414 of the Migration Act 1958. (d) The Tribunal and the learned Federal Magistrate failed to consider properly the statutory obligations the Tribunal has under section 424A (1) of the Migration Act 1958. Accordingly the decision the learned Federal Magistrate made is affected by jurisdictional error. The Appellants should have been afforded the opportunity to provide further evidence and comments regarding the anonymous letters that disparaged their claims for protection in Australia and the report of the United States of America on the conduct of the 2004 general elections in Sri Lanka. (e) The Tribunal and the learned Federal Magistrate failed to consider that it was a jurisdictional error not to consider the obvious link between inter-relation between being a businessman and his political activism leading to persecution and harassment.' 38 I will address the grounds in the notice of appeal and those in the written submissions. 39 The first ground must fail because a reading of the documents shows that at no time did the appellants, and in particular the first appellant, claim to belong to a particular social group comprised of business people. The first appellant's claim was that he feared persecution for his political opinions and his membership of a political party. He addressed that complaint by reference to what he claimed was persecution by senior political figures, including a Minister in the Sri Lankan Government. He did not at any time advance a case that there was a particular social group in Sri Lanka of business people who feared persecution by reason of their membership of that social group. The second appellant did assert that she did belong to a particular social group, but the social group which she said she belonged to was her husband's family. 40 In those circumstances, it cannot be said that the Tribunal failed to respond to that aspect of the appellants' case. It was never part of their case. 41 In any event, the evidence before the Tribunal did not raise for consideration by the Tribunal a claim based on membership of a particular social group, namely business people. There was no evidence led that such a particular social group existed or that the group was persecuted by reason of membership of that social group. In those circumstances, the Tribunal was not obliged to deal with a claim which was neither made nor arose on the materials before it. 42 In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, Kirby J said, at 405, speaking of the functions of the Tribunal: 'The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.' (Footnotes omitted) 43 In SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548, von Doussa J said that the Tribunal was not obliged to consider claims that have not been made. 44 The Tribunal's duty in respect of claims of this kind was further considered by the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 219 ALR 27 ('NABE'). In that case the Full Court at 44 approved a statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 where his Honour said that: '18 The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised a relevant issue that the Tribunal should have dealt with.' 45 The Full Court in NABE went on to say at 44: 'This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.' 46 The appellants' case was based upon a claim of political persecution. Whilst the Tribunal found that a number of threats had been made by particular persons, some of whom were politicians, it found that the motivation for the persecution was a desire to protect 'their own business interests from competition'. There was evidence to support that finding. 47 In any event, the Tribunal found that the threats did not amount to serious harm within the meaning of s 91R of the Act. In view of the fact that the Tribunal rejected the appellants' claim that the senior political figure visited his home and carried out the threats and the attack on his father-in-law, such a finding was open to the Tribunal. 48 The first appellant now claims, in the alternative to the particular social group of business people, that he fears harm as a result of his membership of his own family and, in particular, because his father was a famous businessman who had been involved in business activities and political involvement with the UNP. 49 That case was never advanced before the Tribunal nor was any evidence put to support such a proposition. 50 The appellants have argued that the Tribunal did not 'alert them' or 'canvass fully' the appellants' claimed link between membership of the social group of businessmen and membership of the political entity. However, the Tribunal did not have the responsibility of advancing a case for the appellants: Abebe v The Commonwealth (1999) 197 CLR 510; Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437. 51 The Tribunal's responsibility in the conduct of the hearing was governed by s 422B of the Act. The common law natural justice hearing rule has been excluded by operation of that section. It did not apply in the hearing by the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. 52 It follows that the appellants, if they are to succeed on any claim that they were not accorded procedural fairness, must identify some contravention by the Tribunal of the provisions in Division 4 of Part 7 of the Act. 53 It is claimed that the Tribunal did not afford the appellants sufficient time in which to make their cases. It is not clear how that claim fits in with the Tribunal's obligation under s 422B of the Act. However, it must fail as a matter of fact. 54 The Tribunal gave both appellants sufficient notice for the appellants to organise their case for presentation at the Tribunal. There is no suggestion that the hearing was truncated in any way. The Tribunal advised the appellants in a timely fashion as to when the decision would be handed down. In fact, the decisions were not handed down until three or four weeks after the Tribunal conducted the hearings on 8 and 9 November 2005. 55 There is no suggestion on the material before the Tribunal or before this Court that the appellants sought to obtain any further information for presentation to the Tribunal. Nor is there any suggestion that they made any attempt to obtain further time to present further information or to extend time after the hearing to provide further information to the Tribunal. 56 Any argument that the Tribunal failed to give them sufficient time in which to get their case ready or present their case must be rejected. 57 The Tribunal was obliged to comply with the obligations in s 424A of the Act. During the hearing, the Tribunal put the substance of two anonymous 'dob in' letters to the appellants and copies were provided to the first appellant. 58 Because the Tribunal expressly eschewed any reliance on the material contained in those 'dob in' letters, the Tribunal did not have an obligation to comply with s 424A in respect of those letters. Section 424A was not engaged because the information contained in the 'dob in' letters was not considered by the Tribunal to be a reason or part of a reason for affirming the decision under the review. 59 Because of the provisions of s 422B of the Act, there was no common law duty of the kind addressed in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411. If I am wrong about that and a common law duty arose, notwithstanding the provisions of s 422B, the duty was discharged because the male appellant was given copies of the 'dob in' letters. 60 Section 424A does not apply to country information: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. For those reasons, s 424A was not breached by the Tribunal. None of the grounds identified by the appellants have been made out. 61 However, Mr Knowles, who appeared for the Minister, the first respondent, very properly brought to my attention, as he had the Federal Magistrate, circumstances which might be relied upon by the second appellant in support of an argument that the Tribunal did not comply with s 424A in another respect. 62 As I have already observed, there were two separate hearings in respect of the separate applications by the first appellant and second appellant for protection visas; the first appellant's hearing taking place on 8 November 2005 and the second appellant's hearing taking place on 9 November 2005. It would appear from documents handed up on the appeal that both appellants were represented, or at least assisted, by the same migration agent, Mr Jayakody. 63 The document suggests that the second appellant and her son were present during the first appellant's hearing. However, the first appellant asserted that the second appellant and her son were asked to leave the hearing room very shortly after the hearing began. The Minister was not in a position to deny that assertion. I am not in a position to resolve that issue but I am prepared to assume, as the first appellant asked, that his wife, the second appellant, was not present during his hearing. 64 On the other hand, the documents suggest that the first appellant was not present during the second appellant's hearing. However, in that regard, the first appellant asserted that he was present during the second appellant's hearing. He said the second appellant was pregnant at the time and the first appellant remained for support. Again, the Minister was not in a position to deny that assertion and, again, I am prepared to assume, as the first appellant has asked, that he was present during the second appellant's hearing. 65 In the Tribunal's reasons for decision in respect of the first appellant's application, the Tribunal writes: 'The applicant agreed to the request by the Tribunal that the evidence he had provided at the hearing could be used in determining his own matter as well as the separate application for protection lodged by his wife, relying upon similar facts and circumstances to his own. The Applicant's adviser also indicated that he had no objection to this course of action.' 66 It would seem that the Tribunal obtained the agreement of the first appellant that the evidence he had provided could also be used in the separate application lodged by his wife. 67 In the Tribunal's reasons in relation to the second appellant's application, the Tribunal writes: 'The Applicant [meaning the second appellant] consented to the Tribunal using the evidence her husband had already provided at a Tribunal hearing in his own application for review when assessing her application. She also consented to the Tribunal using her evidence at the hearing in determining her husband's application. The Applicant's adviser indicated that he did not object to this request.' 68 It seems, therefore, that the Tribunal obtained from both appellants their agreement to use the evidence adduced by the first appellant in his hearing in the second appellant's application for review. 69 Whilst it appears that the Tribunal also obtained the second appellant's consent to using her evidence in the determination of the first appellant's application, it does not seem to have obtained the first appellant's consent in regard to that matter. 70 The question which is raised thereby is whether the Tribunal has complied with the strict procedures required under s 424A. In relation to the first appellant's application, the Tribunal did not obtain the first appellant's consent to the Tribunal using the second appellant's evidence in determining his application. 71 In those circumstances, it might be that, if the Tribunal considered there was information contained in the second appellant's evidence which was a reason or part of a reason for affirming the decision under review, the Tribunal should have given notice to the first appellant under s 424A of the Act. 72 It seems, however, on a close reading of the Tribunal's reasons in relation to the first appellant that it did not use any of the information or evidence provided by the second appellant to the Tribunal. It is likely that it did not because, as already explained, the second appellant was relying upon the first appellant's fear of persecution for the success of her application. In those circumstances, it is unlikely that the Tribunal would have received information in the second appellant's hearing which would have impacted upon the first appellant's application for a review. 73 The situation, however, with the second appellant is different. It is clear that the Tribunal relied upon the reasons for rejecting the first appellant's application for rejecting the second appellant's application. It was put by Mr Knowles that in doing so the Tribunal was simply relying on its own thought processes for the purpose of affirming the decision in relation to the second appellant. I think, with respect, that is not so. Whilst it did rely on its own thought processes and reasons in relation to the first appellant's application for rejecting the second appellant's application, it also relied upon the information provided by the first appellant in relation to his application for those findings and reasons. 74 In my opinion, the Tribunal, in relation to the second appellant's application, relied upon information provided to the Tribunal by the first appellant in his application. As I have already said, I assume that the second appellant was not present when that information was provided. It is true, of course, that she consented to the Tribunal proceeding on that basis. What she consented to, as the Tribunal said, was for the Tribunal to use the evidence her husband had already provided in respect to his own application for review. 75 It is clear that the information provided the husband in his application for review is information of a kind that the Tribunal considered would be a reason or part of a reason for affirming the decision which was under review in relation to the second appellant's application. Thus, in my opinion, s 424A(1) was on the face of it engaged. 76 Mr Knowles, however, argued that the Tribunal was not under an obligation to provide this information or particulars of the information to the second appellant because the information was given by the second appellant for the purpose of her application. I do not accept that submission. The second appellant did not provide the information to the Tribunal. She did not give it in the sense that that word is used in the past tense in s 424A(3)(b) of the Act. She merely consented to the Tribunal using the information. 77 Section 424A is in mandatory terms. A breach of s 424A will constitute jurisdictional error: SAAP & Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. 78 Reference was made to a line of cases where the Tribunal had more than one applicant before it and a dependent applicant gave evidence which contradicted or tended to contradict the primary applicant's case. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263, the applicant's husband was also an applicant (a dependent applicant) before the Tribunal and gave evidence. Marshall J held that the husband was also an applicant. Section 424A(3)(b) excused the Tribunal from giving the applicant written notice of her husband's evidence. That decision was followed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176. The proposition was doubted but not finally decided by Nicholson and Emmett JJ in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13. 79 In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP, Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.' 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004. Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002, Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case. 81 The purpose of s 424A is to require the Tribunal to bring to an applicant's attention all of the matters which might be a reason or part of a reason for affirming a decision under review. The purpose of s 424A(3)(b) is to relieve the Tribunal of that obligation where the information has been given to the Tribunal for the purpose of the application. In my opinion, this information was not given to the Tribunal by the applicant for the purpose of the application. It was information which was in the possession of the Tribunal which the second appellant consented to the Tribunal using. 82 In my opinion, s 424A(3)(b) does not apply and thereby the Tribunal has failed to comply with s 424A(1) and (2) of the Act. 83 That result is fair. Whilst the second appellant might have consented to the Tribunal using the information provided by the first appellant because she was not present at the hearing, she could not have known what information she was consenting to the Tribunal using. 84 I would dismiss the first appellant's appeal but allow the second appellant's appeal. 85 I would make the following orders:

1. The first appellant's appeal be dismissed.
2. The second appellant's appeal be allowed.
3. The orders made by the Federal Magistrate on 31 October 2006 be set aside.
4. In lieu thereof there be orders that: 4.1 the first applicant's application be dismissed; 4.2 the second applicant's application be allowed. 4.3 A writ of certiorari issue to quash the decision of the Tribunal made on 30 November 2005 and published on 8 December 2005. 4.4 The second applicant's application for a review of the delegate's decision be remitted to the Tribunal for hearing according to law.
5. The question of costs in the Federal Magistrates Court be reserved.

6. The question of costs on the appeal be reserved.
7. The parties be at liberty to apply. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 23 March 2007 Counsel for the Appellants: The Appellants were unrepresented and appeared in person

Date of Hearing: 20 February 2007