MZXKH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against the judgment of a Federal Magistrate dated 17 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 4 May 2006: see [2006] FMCA 1696. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Burma. He is a Christian. He entered Australia on a tourist visa on 31 March 2004. The appellant claimed to have been subjected to physical violence and intimidation from Burmese authorities following his support for the National League for Democracy and his involvement in a number of anti-government demonstrations. The appellant also claimed that he is easily mistaken for a Muslim in Burma given his Indo-Karen ethnicity and that, as a result, he feared that he would be targeted and physically harmed during anti-Muslim riots. Additionally, the appellant asserted that he had been the victim of daily discrimination as a Christian in Burma. 3 The Tribunal did not accept that the appellant had suffered persecution as a result of his Christian faith, and found that he had not demonstrated that he had suffered any limitations on his religious freedom. The Tribunal also noted that the appellant could not identify any specific incident where he had been targeted because of his Indo-Karen ethnicity, and held it was not satisfied that he had suffered persecution for a Convention reason. Further, the Tribunal found that it had been almost 20 years since the appellant had actively participated in political demonstrations, save for one in 1998 which he appeared to encounter by accident. The Tribunal concluded that it could not be satisfied that the appellant would face a real chance of persecution should he return to Burma. 4 On 9 June 2006, the appellant filed an application in the Federal Magistrates Court for review of the Tribunal's decision. In that application, the appellant asserted that the decision of the Tribunal was affected by jurisdictional error, claiming that it had failed to comply with s 424A of the Migration Act 1958 ("the Act") in relation to claims that the appellant was known as an "Indian leader". It was also contended that the Tribunal had failed to take into account an integer of the claim, and failed to make necessary inquiries prior to forming its conclusions. 5 On 17 November 2006, McInnis FM rejected each of the claims made by the appellant and dismissed his application. 6 In this appeal the appellant only alleges error on the part of the Federal Magistrate in relation to his application of s 424A of the Act. 7 Relevantly, s 424A provides: "424A(1) Subject to subsection (3) the Tribunal must: (a) Give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or 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 (c) Invite the applicant to comment on it. (2) … (3) This section does not apply to information: (a) … (b) That the applicant gave for the purpose of the application (c) …" 8 The "information" which is of present relevance was information contained in sworn statements which the appellant placed before the Tribunal but had not mentioned when he made his initial claim for a protection visa. That information was that, in Burma, he had "the profile of and was known as the Indian leader". The relevant information was identified, somewhat more expansively, in the appellant's notice of appeal as "information constituted by the absence of any reference in the initial application for a protection visa to the claim that the appellant had the profile of and was known as the Indian leader, and/or being the fact that one thing was said in the prior statement to the first respondent's department and another to the Tribunal at the review stage and/or the fact that if what was being asserted before the Tribunal was true it would have been in the prior statement in that form and/or the fact that one thing was said in the prior statement and no more." In the course of a hearing before the Tribunal the Tribunal member raised with the appellant the point that the "Indian leader" claim had only recently been made. The appellant accepted that this was so and attributed it to a mix up when his initial statement was being prepared. Following the hearing the Tribunal wrote to the appellant's representatives, on 23 January 2006, drawing attention to various items of information and inviting the appellant to comment on that information. The letter read in part: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: … 8. Your profile as a leader and activist in Burma seems to have increased in the time you first arrived in Australia and claimed protection and your more recent statements at the hearing. … Why this information is relevant to the review: This information is relevant because it indicates some inconsistent account in relation to these aspects of your claims and evidence at different stages of the proceedings. If you wish to comment please provide written details to the Tribunal. You are invited to comment on this information. …" 9 The appellant responded to this invitation by preparing a statutory declaration. Relevantly it stated: "As to question 8, my profile has not increased in the way suggested, and I wish to reject any suggestion that this is the case. I refer to my previous comments in writing and orally, and to the legal submissions of my legal adviser. I reiterate the inadequacies and problems which I experienced with the initial evidence prepared by my previous legal adviser … and note that this was one of the main reasons why I changed legal advisers. The additional comments about my activities and profile of nearly (sic) sought to better explain the details and subtleties of my situation in a more comprehensive way. I have also sought to rectify any possible misunderstandings which could have arisen due to the incomplete nature of my initial claims." 10 In its reasons for decision the Tribunal said that it did "not accept that the [appellant] was known as an Indian leader of the demonstrations and that other demonstrators gathered at his house, as this would have drawn a lot more reaction from the Burmese authorities who would have been aware of the applicant and his whereabouts because of his employment with the US Embassy … and also the fact that this claim was only first made at the review stage of the application." 11 The appellant argued, before the Federal Magistrate, that the Tribunal had contravened s 424A of the Act by relying on the appellant's belated claim about his profile because it had not first satisfied the requirements of s 424A of the Act. 12 The learned Federal Magistrate rejected this submission. He said: "37. In my view, the First Respondent's submissions in relation to this ground are correct. The s.424A letter, whilst couched in general terms in relation to the Applicant's profile, should be read in the context of material then before the Tribunal provided by the Applicant in additional declarations. The issue was further agitated at the hearing and clearly the description of the Applicant as an "Indian leader" is relevant to the profile and is part of the process of augmenting that profile which occurred after the initial statements prepared by others on behalf of the Applicant. 38. I further note that in his Statutory Declaration dated 14 December 2005 the Applicant specifically refers to earlier material provided to the Department and then clearly added "by way of clarification" other material, including the assertion that he was known by the authorities as "the Indian leader". I accept, as submitted by the First Respondent, that those comments could properly be regarded as an acknowledgement of the previous statement by the Applicant and relied upon before the Tribunal contained omissions regarding the Applicant's profile as an Indian leader in the 1987 and 1988 demonstrations. 39. The clarification of the Applicant's role was confirmed in the written submissions of the Tribunal of 16 December 2005 by the Applicant's representatives. The response to the s.424A letter by the Applicant clearly states that the Applicant refers to his "previous comments in writing and orally". 40. It was submitted in the alternative by the First Respondent, and I accept, that the chronology of submissions and Statutory Declarations and the content of the material highlighted in this judgment demonstrate the Applicant had given information to the Tribunal about perceived omissions in his initial statements to the Department. In the alternative, I accept therefore, that s.424A does not apply, as that information would fall properly within the terms of s.424A(3)(b) of the Act (see SZCJR v Minister for Immigration and Multicultural Affairs [2006] FCA 1083 at [11]-[12])." 13 Counsel for the appellant submits that the Tribunal's letter, sent in purported compliance with requirements of s 424A(1), (set out above at [8]) lacked sufficient specificity to alert the appellant and his advisers to the matter which was of concern to the Tribunal, namely, that he had failed to mention, in his original application, the claim made in material presented on his behalf to the Tribunal to the effect that he had the profile of and was known as the Indian leader. 14 The Tribunal's letter drew the appellant's attention to his "profile as a leader and activist in Burma" which may be seen to having increased in the period between his original protection claim and more recent statements made by him at the hearing. This information was said to be relevant because it indicated some inconsistent account relating to the appellant's claims. The appellant responded to the Tribunal's invitation to comment by referring to his oral and written comments and referring to what he said were "the inadequacies and problems which [he had] experienced with the initial evidence prepared by [his] previous legal adviser …" 15 Section 424A of the Act is one of a number of provisions designed to accord what might be described as "statutory procedural fairness" to applicants before the Tribunal. Relevantly its purpose was explained by Gummow J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 191 as follows: "[116] Paragraph (b) of s 424A(3) relieves the RRT from what otherwise might be an obligation to give particulars of information already supplied by the applicant for the purpose of the application. In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at 34, 38-39, the Full Court indicated that the subject matter of the exception is information provided by the applicant for review by statutory declaration under para (a) of s 423(1) and in response to an invitation by the RRT under s 424(2). That construction was not challenged on this appeal and should be accepted. [117] … [118] What can be stated is that the evident object of s 424A is that, with the qualifications and exceptions just mentioned, fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it. In Al Shamry, Merkel J correctly observed: "Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposed to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reasons for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it" See also at 175 [50] per McHugh J. 16 The obligation imposed on the Tribunal by s 424A(1)(a) is an obligation to provide "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision … under review." This provision requires the Tribunal to alert an applicant to specific information which it considers would be the reason for dismissing the applicant's claim. The Tribunal cannot resort to generality when the information it has relates to specific conduct by specific individuals and it is that conduct which is relied on by the Tribunal as the reason or part of the reason for it dismissing an appeal: see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [31]-[36]. 17 The legal issues raised by this case are somewhat different and, insofar as the researches of counsel and my own review of authority would suggest, are novel. The appellant's allegation of lack of specificity in this case focuses on the terminology adopted by the Tribunal when it sought information from the appellant in its letter of 23 January 2006. His contention is that the reference to "[y]our profile as a leader and activist in Burma …" is insufficiently precise because it fails to make clear what information is comprehended by the word "profile". In particular, it is contended that the reference to the appellant's "profile" does not make clear to him that the Tribunal had in contemplation an adverse finding that he was not known as an Indian leader of demonstrations in 1987 and that a reason for this conclusion was that the claim was made for the first time at the review stage of his application. The respondent Minister contends that the appellant can be taken to have understood what was meant by the reference to his "profile" by reason of the various exchanges during the hearing before the Tribunal during which the member invited comment from the appellant about him being an "Indian leader". In one such exchange, for example, the member said to the appellant: "The Indian leader - this has only been raised more recently. In your first lot of documents, you said you took part. You were a bystander. You were hit and you took part because you got angry. But there is no talk about you being an Indian leader or outer head. Its something that has come up more recently I think. I could be wrong. I was wondering why its only been raised more recently rather than in your initial statement." 18 Whether or not information has been identified with sufficient specificity for the purposes of s 424A(1) of the Act will be a matter of fact, degree and context depending on the circumstances of the case. Past dealings between an applicant and the Tribunal may have involved the adoption of terminology which, although it may lack clarity if addressed to a third party, will readily be comprehensible to the applicant. 19 In this case, the reference, by the Tribunal, to the appellant's "profile" and changes to it between the time he made his original application and the time at which he was preparing submissions to the Tribunal and appearing before it can reasonably be seen to comprehend his claimed profile as an Indian leader. He used the term "profile" in this way in his statutory declaration of 14 December 2005. The declaration read in part: "The Burmese authorities are very suspicious of Burmese who have been overseas in western countries such as Australia, particularly if they have a past and significant profile in Burma like myself. I wish to add by way of clarification that my involvement in the protest of 6 August 1987 was very important. I was a leader of this protest was in the front line. I was known by the authorities as "the Indian leader" because of my appearance and ethnicity. So at the time, the authorities considered me a leader. The same is the case later in the 8/8/1988 protest, where I again took a leading role in the demonstrations. Protesters at my house ("the Indian's house") before going to the demonstrations. This is why I continue to be monitored and pursued by the authorities." However, a more extensive "profile" was described in written submissions lodged with the Tribunal five days later. The relevant submission was that the appellant had "a profile as an active and prominent political dissident and pro-democracy activist, as well as having pro-Western sympathies." That document also contained reference to the appellant's alleged "profile as security guard with the US Embassy and political dissident." 20 The Tribunal sought to meet its obligation under s 424A(1)(a) by advising the appellant that it had information that would, subject to any comments which he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. One item of information which was identified was the appellant's "profile as a leader and activist in Burma [seeming] to have increased in the time [since he] first arrived in Australia and claimed protection and [his] more recent statements at the hearing." I have come to the view that the language employed by the Tribunal has failed to satisfy its obligation under s 424A(1)(a) of the Act because it fails to alert him with sufficient specificity to the adverse material on which it ultimately relied, in part, to reject his claim. The reference to the appellant's "profile as a leader and activist in Burma" does not unambiguously draw his attention to the view that he "was known as an Indian leader of the demonstrations". The profile claimed by the appellant was much broader in its reach ("an active and prominent political dissident and pro-democracy activist, as well as having pro-Western sympathies."). Moreover, the wording employed by the Tribunal lacks the necessary clarity. It is open to the construction that it is referring to an increase in the appellant's profile in Burma in the period between his arrival in Australia in March 2004 and the hearing before the Tribunal on 19 December 2005. The Tribunal does not make it clear that the point of its concern is that the appellant's claims had appeared to it to have changed in Australia in that period. The appellant's response to the Tribunal's request to comment on this item of information led to a denial that his profile had increased "in the way suggested". It does not appear that the appellant and his advisors understood that the Tribunal was directing particular attention to the claim that he was perceived to be "an Indian leader". 21 Although the point was not raised or relied on by the appellant, I would also express my doubt that the Tribunal satisfied its obligations to the appellant under s 424A(1)(b) of the Act. The Tribunal advised the appellant that the reason that the information identified in its letter of 23 January 2006, "is relevant [is] because it indicates some inconsistent account in relation to these aspects of your claims and evidence at different stages of the proceedings." Such a statement was apt to mislead if it was intended to refer to alleged inconsistencies between what the appellant said at the time at which he applied for a protection visa and what he told the Tribunal in written submissions and orally. No "proceeding" was extant at the time of the original application. 22 The respondent Minister contends that, even if the Tribunal has failed to meet its obligations under s 424A of the Act, it should be held that it was, in any event, not obliged to comply with s 424A(1) because it was relieved of that obligation, in respect of the relevant item of information, by the terms of s 424A(3)(b). That provision stipulates that s 424A(1) does not apply to information "… that the applicant gave for the purpose of the application …" The question then becomes one of identification: precisely what information was given by a particular applicant to the Tribunal that the Tribunal considers would be the reason or part of the reason for affirming the decision under review? The relevant application is the application to the Tribunal not the earlier application for a protection visa: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. One can readily understand the purpose of a provision such as s 424A(3)(b) where an applicant has given the Tribunal information which is adverse to his or her interests. It is not as readily apparent that such an exemption is intended to apply in circumstances in which the Tribunal determines that it does not accept such a claim and proposes to reject it. 23 In NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "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." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act, the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A, than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72]. 24 It is clear in the present case that the appellant "gave" the Tribunal the relevant information to the extent that he made the claims relating to his profile, referred to above at [19], in written submissions. He thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25]. The more significant issue for present purposes is whether the appellant also "gave" the information that he had not made the relevant claims at the time at which he originally applied for a protection visa. In my view he did give this information to the Tribunal. It is implicit in the declaration which he made on 14 December 2005 which is quoted above at [19], when he says, immediately before the reference to his profile as "the Indian leader" that this was information which he wished "to add by way of clarification." The omission was expressly acknowledged on a number of occasions during his interview with the Tribunal. In his oral evidence the appellant told the Tribunal about the events in September 1987 in which he said he was identified as "the Indian leader". The Tribunal member raised the question of whether this claim had earlier been made. The appellant's legal representative drew attention to the passage in the appellant's statutory declaration of 14 December 2005 which is quoted above at [19]. The following exchange then ensued: "Ms Tsiakas: It's in your recent document. I know that, but it wasn't in your original document that people were gathering at your house and they were calling you an Indian and gathering at the Indian's house, and I am wondering why. INTERPRETER: That's right. I didn't have that open to me. I didn't have the time for the situation that allowed me to do so. That's why I had to change solicitor. MS TSIAKAS: Why didn't you have the opportunity? This is very important evidence for you to have provided at the time. INTERPRETER: At the time, the person who was writing all this - Mr Roberts - didn't write properly. The three brothers - the three of us were there. We were doing everything hurriedly until I got to see Mr Manne (in distinct) I've already made the information to you. The Tribunal was thus advised that the appellant's claimed profile as an Indian leader had not been advanced at the time at which he made his original application. 25 The appellant "gave" the Tribunal the information relating to his claimed profile as an Indian leader and the information that he had not referred to this claim in his earlier dealings with the department. This omission was one of the reasons advanced by the Tribunal for rejecting the appellant's evidence that he was known as an Indian leader and that demonstrators had gathered at his house. The Federal Magistrate was, therefore, in my opinion, correct to hold that s 424A did not apply because the relevant "information" was information of the kind comprehended by s 424A(3)(b). 26 After the foregoing reasons had been prepared counsel for the appellant sought and obtained leave to file further written submissions because of the publication of reasons in two other cases. The reasons had been published after I had reserved judgment in the present proceeding. The two cases were the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 and that of Kenny J in MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826. Written submissions in reply were also filed by counsel for the Minister pursuant to leave. 27 In SZEOP the central issue was whether the Tribunal had satisfied its obligations under s 424A(1) of the Act. The Tribunal had determined that the appellant's delay in making a claim for a protection visa once he had arrived in Australia was a reason for concluding that he had fabricated a claim to being homosexual. The Tribunal had sent a letter to the appellant under s 424A(1) in which it invited comment on the proposition that: "Your delay in applying for Australia's protection is relevant because it casts doubt on the genuineness, or at least the depth, for your claimed fear of being persecuted if you return to Bangladesh." Rares J held that this invitation was insufficiently precise: it "did not include any suggestion that the appellant's claim to be a homosexual would be positively disbelieved as a fabrication because he had delayed in making his protection visa application": at [35]. There is nothing in his Honour's reasons which causes me to depart from my conclusion that the Tribunal, in the present case, failed to meet its obligations to the appellant under s 424A(1). Indeed, his Honour's reemphasis of the need for sufficient specificity in s 424A letters in entirely consistent with the views which I have expressed. 28 One of the issues in MZXFQ related to the application of s 424A(3)(b) in circumstances in which the appellant had given oral evidence before the Tribunal in which he confirmed, at the invitation of the Tribunal, that his previous written statements were accurate. He had also lodged with the Tribunal a statutory declaration in which he made reference to his initial statement in support of his protection visa application. The Minister argued that, in these ways, the appellant had republished to the Tribunal information which had been made in his initial statement. Her Honour rejected this submission. She said, at [47]: "The Tribunal purported to rely on information in the initial statement in assessing the appellant's credibility although the appellant did not invite reference to his initial statement in the course of the Tribunal hearing. I would reject the contention that the appellant "gave" the whole of his initial statement to the Tribunal, when, in answer to the Tribunal's question, he confirmed with the Tribunal that he did not wish to amend it or his 2005 statutory declaration. … I would also reject the contention that, because of the terms of his 2005 statutory declaration, he "gave" the information in his initial statement to the Tribunal for the purposes of its review. His affirmation that, whilst his initial statement was "correct and true" he sought to provide the Tribunal with "extra details" in the 2005 statutory declaration did two things. It affirmed that his claims had not altered over time and that there were more particulars he could give in relation to them. In and of itself this did not republish the initial statement to the Tribunal. There is, moreover, nothing else in the 2005 statutory declaration or in the circumstances of the case that would give rise to the implication that the initial statement had been republished to the Tribunal. On the contrary, the terms of the 2005 statutory declaration indicate that it was intended to take the place of the initial statement as a fuller embodiment of the applicant's claims than the initial statement. Despite reference to the initial statement, the statutory declaration plainly stood by itself. It did not require the reader to refer to the earlier document in order to understand its contents." 29 Unlike MZXFQ the present case concerns a situation in which the appellant failed to raise a claim in his initial statement which he subsequently advanced before the Tribunal. There is no doubt, in my opinion, for the reasons which I have given in para [24] above that the appellant "gave" the Tribunal the information that he had not previously made the relevant claim. This case did not involve an alleged republication of the whole of the appellant's initial statement. Moreover it did not involve a mere assertion that what had been said in the initial statement was true and correct. The Tribunal was told that the claim had not been made in the initial statement and given the reasons why that was so. Accordingly, in my opinion, the decision of her Honour does not assist the appellant in this case. 30 The appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.