NAWZ v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2008-01-24|Before: Madgwick J

HIS HONOUR 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision by the Refugee Review Tribunal ("the Tribunal") adverse to the appellant.

Background 2 The appellant is a national of Pakistan. He comes from a tribal area on the North West frontier near Afghanistan. In February 2001 he arrived in Australia after deserting ship and his long employment as a seaman. His subsequent history of visa applications, and the procedural history of this matter, is unusual and requires explanation. 3 On 28 May 2001 an application for protection was lodged with the first respondent's department ("the Department") in the name of Akhtar Mohammed Waisi, a person claiming to be an Afghan national. A migration agent lodged this application purportedly on the applicant's behalf. The application for a protection visa was rejected by a delegate of the Minister on 12 June 2002. 4 On 30 January 2003 the appellant personally lodged an application for a protection (class XA) visa in his own name. On 10 June 2003 the Department advised the appellant that pursuant to s 48A of the Migration Act 1958 (Cth) ("the Act") he was prevented from making such application because he had made a previous application under a different name which had been refused. 5 An application to the Tribunal for review of that "decision" was rejected on 9 October 2003 on the basis that there had been no reviewable decision and the Tribunal had no jurisdiction to hear the application. The appellant unsuccessfully sought judicial review of this decision: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 160; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199. Special leave to appeal to the High Court was refused on 7 October 2005. 6 However on 14 December 2005 the then Minister exercised her power under s 48B of the Act in favour of the appellant, so that he was no longer precluded from making a further application for a protection visa, notwithstanding s 48A. 7 The appellant then lodged an application for a protection (class XA) visa on 3 January 2006, on the basis that he and his family had been harassed and threatened in Pakistan as a result of his father's political activities and membership of the Pakistan People's Party ("PPP"). The appellant also claimed to fear a tribal revenge killing because his father had allegedly killed the elder son of a local leader of the political group Jamaat-e-Islami("JI"). A delegate of the Minister refused the application for a protection visa and, on 24 January 2006 the appellant, through his legal representatives, lodged an application for review with the Tribunal. 8 On 1 March 2006 the Tribunal wrote to the appellant through his adviser in the following terms: With your first application to the Refugee review tribunal in July 2003, you submitted a document headed "Background" in which you explained the reasons for which you were applying for a protection visa. You stated that you had twice telephoned your family from Sydney and, on the second occasion, you were told that you should not return, as you would be in danger. The Tribunal has reliable information that, two days prior to your arrival in Sydney, you had changed $US5,000. This information is relevant because this information may lead the Tribunal to conclude that your departure from your ship was planned prior to your conversation with your family and your decision to remain in Australia was taken for reasons other than fear of persecution in Pakistan. 9 An email was received by the Department from a shipping agent on 21 February 2001. This email was the source of the Tribunal's indication that it "had reliable information" that the appellant had changed US$5000 two days prior to his arrival in Sydney. The email assumed a central importance in the Tribunal's credibility findings. It says that the Staff Captain had "advised that they have found that he [an unnamed person who had jumped ship] changed USD5000 into Australian currency two days prior to arriving in Sydney" and that a crew member who was on leave had given the absconder his name and address. 10 The copy of the email provided by the Tribunal to the appellant, after a request from his agent, was incomplete. It was missing the name and address of the crew member on leave. 11 The Tribunal affirmed the decision of the delegate not to grant a protection visa on 2 June 2006. The Tribunal was not satisfied that the appellant had a well-founded fear of being persecuted for a Convention reason if he were to return to Pakistan. The Tribunal did not accept the bulk of the appellant's claim and found him to be "a person without credibility". In the course of his reasons the Tribunal Member said Two other medical certificates were submitted, from two different doctors. One relates to the death of the applicant's mother and the other to a recent injury to his son. I do not accept that either is authentic. Although they are on the face of it from two different doctors, the handwriting is identical. The wording of the certificate regarding his mother is very similar to that regarding his father and states that his mother suffered head and face injuries in a grenade blast, which caused her death about 7 months later. Again there are no dates and none of the medical details I would expect in such a certificate. 12 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. This application was dismissed by Lloyd-Jones FM.

Appellant's submissions 13 The appellant submitted that the reasoning of the learned Federal Magistrate was in error in a number of respects. In particular, the appellant submitted that his Honour erred by not finding that the Tribunal had failed to meet the requirements of s 424A of the Act. The grounds of alleged error fall into four categories.

(i) The 2003 Tribunal statement 14 The first issue was whether the Tribunal ought to have provided the appellant with a copy of the document titled "Background", submitted by the appellant as part of his 2003 application and referred to in the letter of 1 March 2006 above. Critical findings as to credit were drawn from this document in conjunction with the email from a shipping agent to the Department. 15 The appellant submitted that the letter to him from the Tribunal dated 1 March 2006 did not discharge the Tribunal's obligation under s 424A to provide him with "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". The appellant asserts that he was not given a direct extract of the relevant portions of the 2003 Tribunal application, nor any clue as to the context in which the alleged statements were made. 16 The appellant submitted that, in order to deal with the accusation made by the Tribunal in the 1 March letter, the appellant would need to know the context and exact statements alleged to have been made by him. The appellant further submitted that the 1 March letter did not discharge the Tribunal's s 424A duties because he was not given the information itself (rather a conclusion about what the information meant) and was not given the necessary particulars to allow him to respond.

(ii) The blacked out email 17 The appellant submitted that it was clear that the email was read as a whole by the Tribunal as information leading to the view that the appellant had previously planned to jump ship, and that his being told the name and address of the person in the email was critical to allowing a fair response to the information. Enquiries might have been made of that person as to whether the appellant was in fact the deserting crew member spoken of in the email, amongst other things. 18 The learned Federal Magistrate rejected this ground on the basis that the appellant could "respond to the factual allegation by confirming, denying or explaining away the allegation"; that the supply of the email was sufficient; and that the question of changing money was the information for which the Tribunal sought explanation from the appellant. 19 The appellant submitted that, by selectively providing the information in the email, the Tribunal failed to ensure that the appellant was, in words taken from Paul v Minister for Immigration (2001) 113 FCR 396 at 429, "fairly informed of information adverse to his or her case … so that investigation may be made, and steps may be taken, somehow, if possible, to meet it."

(iii) Other s 424A grounds 20 As to the Tribunal's rejection of the genuineness of the two medical reports purportedly made by two different doctors, submissions were made to the Federal Magistrate by the appellant regarding a supposed failure to comply with s 424A on the basis that the information used by the Tribunal was not simply each of the two documents compared. The conclusion drawn from those documents, that the handwriting was identical, was the information which must be given to the appellant by virtue of s 424A(1)(b). His Honour rejected those submissions on the bases that either the "information" referred to was merely the Tribunal's thought processes rather than information, or because the information had been provided to the Tribunal by the appellant himself and so was excluded by operation of s 424A(3)(b).

(iv) The application of s 424A(3)(b) of the Act 21 The appellant submitted that the Federal Magistrate erred in his application of s 424A(3)(b) in relation to the medical certificates created by third parties and provided to the Tribunal by the appellant. 22 The appellant also alleged a further error in the application of s 424A(3)(b) on the basis that a submission given to the Tribunal by the appellant's agent was said to have adopted earlier material. Such adoption was held to apply to the statutory declaration that the appellant made for the purposes of the protection visa application, and all other documents provided by his advisors, together with the protection visa application and the application for review to the first Tribunal in 2003, including the document headed "Background". The foundation for holding that this material was information given by the applicant for the purposes of the review at hand was a statement by the appellant's agent in closing written submissions following the 2006 Tribunal hearing. The agent said [the appellant's] claims are set out in detail in the statutory declaration provided with his application to the Department of Immigration. A submission provided with this application contains additional information relating to his case. [The appellant] continues to rely on these submissions. 23 The appellant submitted that this statement only applied to the statutory declaration and not to the contents of the protection visa application. He further submitted that it could not be taken to refer to the material which was provided during the course of the previous Tribunal matter, such as the document titled "Background". The appellant submitted that the general rule in this area is that, as Jacobson J said in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357, s 424A(3)(b) may operate where there has been an express adoption of the material. Here, it was submitted, the only express written reference was to the statutory declaration attached to the protection visa application and perhaps, on a generous reading, the submissions in support of the visa application. The appellant submitted that the Federal Magistrate therefore erred by applying s 424A(3)(b) to material other than the statutory declaration.

Alleged breach of s 424A regarding post-hearing information 24 The respondent submitted that there was no error in the Federal Magistrate's analysis of the treatment of the documents forwarded to the Tribunal by the appellant's lawyers (including the document titled "Background"). If those acting on behalf of an applicant send documents to the Tribunal, then the applicant has "given" the information for the purposes of s 424A(3)(b). 25 The respondent further submitted that any negative inference that the Tribunal may have drawn from information supplied by the appellant after the Tribunal hearing could not be considered "information" for the purposes of s 424A. Information in this context is "knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal": SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [205], and not "the Tribunal's subjective appraisals, thought processes or determinations": SZEEU 150 FCR at [206].

Breach of s 424A regarding various items of "information"

(i) The document titled "Background" 26 The respondent submitted that the appellant had overstated the duty imposed on the Tribunal by s 424A. In NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112, the Full Court held at [14] that "[t]he section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396." (Emphasis added.) The respondent also relied on comments of Heerey and Allsop JJ in Paul 113 FCR 396. The Tribunal's 1 March 2006 letter clearly identified the information that the Tribunal considered would be, subject to the appellant's response, a reason for affirming the delegate's decision. The factual proposition referred to in the letter was clear: the Tribunal had received information that the appellant had changed money prior to his arrival in Sydney, whereas the appellant had stated that he learned of a danger in Pakistan from his family by telephone after he arrived in Sydney. According to the respondent, the letter also explained the relevance of the information: that the changing of money prior to his arrival suggested that the appellant planned to stay in Sydney before he spoke with his family and it was therefore not true that he decided to stay in Sydney due to fears arising from his conversations with his family. 27 The respondent submitted that the particulars provided by the Tribunal were adequate to allow the appellant to respond effectively to the information. Further, the appellant was supplied with a copy of the email which was the source of the information regarding his having changed money prior to arrival in Sydney. The respondent submitted that there was no obligation to provide the actual "Background" document referred to in the 1 March letter.

28 The information contained therein bore on the alleged timing of the appellant's being told of the risks he faced in Pakistan. How the Tribunal derived this information was inconsequential.

(ii) Failure to provide an unedited copy of the email 29 The respondent submitted that there was no breach of s 424A by the Tribunal in supplying a copy of the email referred to above to the appellant with some information blacked out. Consistently with s 424A the appellant was given adequate particulars of the relevant aspects of the information that the Tribunal considered could be the reason or part of the reason for affirming the decision under review.

(iii) Section 424A(3)(b) exemptions 30 The respondent accepted that the reference to "application" in section 424A(3)(b) means the application for review that is under consideration by the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [17]. However, the respondent submitted that information which has previously been given for some other purpose, such as the original visa application, can become information given by the applicant for the purpose of the Tribunal application if the applicant expressly adopts that information as part of the application for review to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25]; NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 at [12]-[13]; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10]-[11]. In its reasons for decision the Tribunal referred to a statutory declaration, and accompanying submission, by the appellant that he had submitted with his primary visa application. The appellant's advisor had expressly adopted these earlier documents for the purposes of the application for review to the Tribunal in the submission received by the Tribunal on 7 March 2006. It followed that the information contained therein had been adopted and become information which the appellant "gave for the purpose of the application" for review and so fell within the exception in s 424A(3)(b).

(iv) Failure to provide written notice of the Tribunal's view that documents provided by the appellant would be given no weight 31 The respondent submitted that this ground of appeal must fail because it proceeds on the false premise that the Tribunal's view about the authenticity of documents was "information" to which s 424A applied. 32 In the respondent's submission, the Tribunal's view about the authenticity of documents provided by the appellant is not knowledge of a fact or circumstance "communicated to, or received by, the Tribunal". Rather, it was an aspect of the Tribunal's subjective appraisal of the evidence. There is no requirement in s 424A that the Tribunal give the appellant written notice of such appraisals: SZEEU 150 FCR at [205]-[206]. 33 In any case, the documents themselves were given by the appellant for the purpose of the application for review. As such they fall within the s 424A(3)(b) exception.

Consideration 34 No point was taken in reliance on s 425. With respect to all matters raised in this appeal I agree with the submissions of counsel for the respondent and, generally, with the reasons of the court below. 35 The decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, handed down between the hearing of this matter and the publication of these reasons, confirms the arguments of the respondents with respect to the medical certificates that the Tribunal considered had been forged and the application of s 424A. In that case, Gleeson CJ, Gummow, Callinan, Heydon and Crennan examined the operation of s 424A. Their Honours held at [18] that if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). 36 The inconsistencies referred to by their Honours in that case were those which existed between statutory declarations made by the appellants and oral evidence given at the hearing. Their Honours went on to say: [h]owever broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 37 These comments would appear to be fatal to the arguments of the appellant in this case with respect to the medical certificates. The conclusion that the medical certificates may have been forged cannot be "information" for the purposes of s 424A, rather the medical certificates themselves and the handwriting are the "information". That the handwriting in the two reports appeared identical was, in the language of Allsop J in SZEEU 150 FCR 214, a "subjective appraisal" by the Tribunal leading, with other matters also appraised, to a "determination" that the reports were not "authentic". 38 For these reasons, all aspects of the appellant's appeal must fail. The appeal is dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Counsel for the Appellant: Mr S E J Prince

Counsel for the First Respondent: Mr Stephen Free

Solicitor for the First Respondent: Sparke Helmore

Date of Hearing: 22 February 2007

Date of Judgment: 24 January 2008

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