Singh v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant, who is a Sikh and a citizen of India, arrived in Australia during October 1997. Shortly after his arrival he applied to the respondent for a protection visa on the ground that he had a well-founded fear of religious, racial, and political persecution were he to return to India. After the application for a protection visa was refused by a delegate of the Minister the applicant applied to the Refugee Review Tribunal ("the RRT") for the review of the delegate's decision. The RRT affirmed the decision of the delegate not to grant a protection visa. The applicant has applied to the Court for the review of the RRT's decision pursuant to Pt 8 of the Migration Act 1958 ("the Act"). 2 He stated that his parents, who are Sikhs, belonged to the Akali Dal, the major Sikh political party, and they and other Sikh family members were involved with the Babbar Khalsa religious organisation. The applicant claimed that because of their pro-Sikh and pro-Khalistan activities, family members were abused, tortured, and illegally detained on a number of occasions because of the religious, ethnic, and political affiliations imputed to them by the authorities. He claimed that his grandfather, father, and first cousin were killed because of those imputed affiliations. The applicant said that he had joined the All India Sikh Student Federation and had been placed under surveillance by the police who interrogated, mistreated, and tortured him as part of the government's response to Sikh political activities in which he was not directly involved. 3 The applicant claimed that he is registered in the police book in India by reason of his past interactions with the police and that the danger to a Sikh registered in the police book is a continuing one, such that he would not be safe anywhere in India. He accepted that the human rights situation in the Punjab had improved, but claimed that a person registered in the police book is still not safe anywhere in India. 4 The RRT affirmed the decision of the delegate not to grant a protection visa as it did not accept the applicant's version of the relevant events. The RRT concluded: "Taken as a whole, in light of the fact that so many of the applicant's claims are vague and not sufficiently-detailed to be believable, the implausibility of some key aspects of the applicant's claims, the fact that several of his claims were recent inventions, one of his claims was an important contradictions which was not explained to the Tribunal's satisfaction, and one of his claims was at odds with the independent evidence, the Tribunal can only come to the conclusion that key aspects of the applicant's testimony are not credible and therefore finds that he is not a credible witness. Accordingly, since the Tribunal finds that most of the applicant's claims are not credible, the Tribunal is not satisfied that he has a well-founded fear of persecution due to political opinion, religion, nationality or for any other Convention reason." 5 It is apparent from the RRT's reasons that its statement that the applicant's claims are "vague and not sufficiently detailed to be believable" was based upon the lack of specificity and detail in the applicant's statement of his claims in his original written application to the Department for Immigration and Multicultural Affairs for a protection visa. 6 The ground of review relied upon by the applicant at the initial hearing in the Court was that the RRT had misunderstood the obligations of an applicant for a protection visa to "make…specific claims under the refugees convention" in the written application for a protection visa in the approved form: see reg 2.07 of the Migration Regulations, cl 866.211 of Sch 2 of the Migration Regulations, and the approved application form. The applicant contended that, as a result of its misunderstanding of that obligation, the RRT erred in law in treating the applicant as being obliged to provide specific and detailed answers to each of the questions posed in the application form in relation to his claim to have a well-founded fear of persecution for a Convention reason. The applicant's submission was expressed as follows: "For the Tribunal to have regarded a statement which is clearly sufficiently detailed to answer what is required on the application form to be 'vague and not sufficiently detailed to be believable' indicates that the Tribunal has misinterpreted or misapplied the law relating to the obligation on the Applicant to provide information in support of his application at the time of the application. If an Applicant is asked questions which he answers, and which he answers in a way which did not raise in the mind of the delegate of the Respondent any issue about vagueness or lack of specificity (Delegate's Decision CB 55-60), then the Tribunal has fallen into error of law in not taking account of the compliance of the Applicant at the time of his application with the requirements of the Act and Regulations and questions on the form. The Tribunal has erred in interpreting or applying the obligations on the Applicant to provide information at the time of the application." 7 Although the applicant's contention was put in different ways it is premised upon the RRT basing its decision, at least in part, on the view that the applicant was obliged to complete his original application for a protection visa with greater specificity and detail than he provided. I am not satisfied that the RRT held or applied any such view in arriving at its decision to reject the applicant's version of events. Rather the RRT, in discharging its function as the arbiter of fact, appeared to view the absence of what it regarded as important detail in the original application, together with the subsequent provision of that detail as a reason, amongst others, for treating the applicant's claims as implausible and lacking credibility. As was stated in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405, at 417 by McHugh J, an "implausibility" finding is: "…essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence." 8 In my view the RRT made no error of law in making findings on credibility issues that were open on the material before it after consideration of matters that were logically probative of the issue of credibility: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. The applicant's challenge to the RRT's adverse credibility findings was, in truth, a claim that the RRT gave undue weight to the lack of specificity and detail in the applicant's original statement of his claims. An issue about the weight the RRT gave to the absence of detail in the original application form is, essentially, a question of fact rather than of law. 9 I am not satisfied that the RRT erred in law in making the adverse credibility findings which led it to conclude that it was not satisfied that the events relied upon by the applicant had occurred as alleged. 10 In the course of the initial hearing in the Court an issue arose, for the first time, as to whether the RRT's reliance in its reasons on the information contained in the applicant's original application form revealed that it had acted in breach of s 424A of the Act as it had failed to provide particulars of that information to the applicant and request his response to it in the manner required by s 424A. The applicant was granted leave to amend his Application to the Court to add the following ground of review: "Procedures required by the Act or regulations to be observed in connection with the making of the decision were not observed. Particulars The Tribunal failed to observe the procedures required by section 424A in connection with the making of the decision, in relation to the degree of detail of the applicant's initial claims for a protection visa and the view the Tribunal took of that degree of detail." 11 As a result of the amendment the further hearing of the matter was adjourned to enable the parties to make submissions in relation to the operation and applicability of s 424A. Section 424A provides: "(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 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 (c) invite the applicant to comment on 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. (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 persons is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 12 Section 424A does not provide for an invitation to be given to an applicant orally in the course of his or her appearance before the RRT pursuant to s 425. Rather, ss 424A(2)(a) and 441A require that an invitation under s 424A(1)(c) be in writing and be provided to the applicant. Section 424B provides for the manner in which an applicant is to respond to an invitation given under s 424A. 13 The applicant claims that the obligation under s 424A to provide information to the applicant had been breached as the RRT formed the view that there was information in the original application form that was adverse to the applicant and material to the review, but failed to inform the applicant in writing of that information and its significance and invite him to comment on it: see Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 ("Carlos") at [21] and Minister for Immigration and Multicultural Affairs v Abdulaziz Al Shamry [2001] FCA 919 ("Al Shamry") at [38]. The applicant contended that as a result of the breach of s 424A he was deprived of the opportunity of dealing with relevant matters adverse to his credit upon which the RRT relied in refusing his application for review. 14 It is not in dispute that the lack of specificity and detail in the applicant's original application was a reason for the RRT's affirmation of the decision under review and that, if s 424A applied to that information, the procedures required by the section to be observed concerning that information had not been followed. The Minister, however, contended that the information upon which the applicant is relying is the subjective appraisal or thought processes of the RRT as to the lack of specificity and detail in the application form, which is not "information" required to be disclosed by the RRT under s 424A: see Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 ("Tin") at [51]-[52] and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ("Paul") at [95]. The Minister's contention was expressed as follows: "The Applicant's real complaint is not concerned with 'information' per se particulars of which are said not to have been supplied in the required manner i.e. the application form or the factual details of the claim that are said by the Applicant to constitute 'information' contained in it. Rather what is advanced as a breach of s 424A is the Tribunal's purported failure (which is denied) to alert the applicant to its doubts about various aspects of his claim derived from the lack of detail in the Application form i.e. the subjective determination that the Applicant's account may not be credible. Put in another way it is submitted that what is in issue is not 'information' or 'adverse information' in the sense contemplated by s 424A(1)(a) i.e. the document the contents of which the Applicant himself supplied, but something at one remove from the concept of 'information' involving an impermissible focus on the reasoning processes of the Tribunal." 15 The Minister also contended that, even if there had been a breach of s 424A, relief should be refused as the breach had not denied the applicant the possibility of a successful outcome: see Al Shamry at [42]. The Minister claimed that the RRT had fairly and explicitly raised its concerns about the lack of specificity and detail in the original application with the applicant in the course of the hearing it conducted under s 425. By way of example, the Minister referred to the following questions asked by the RRT: "In your statement you also, state, 'We' - referring to you and your parents - 'were abused, tortured and kept in illegal detention many times.' It seems to me implausible that there are no particulars given, no dates - at least months and years - when these incidents occurred particularly because the statement is prepared with the assistance of a migration agent. Would you like to reply? …It also seems to me implausible that there is no claim in your statement as to how long you were in detention following the March 1997 incident. …This is the first time that you made the claim that you in fact did see a doctor following your police [sic] in April 1997. You have had several years to present that claim, you have been represented by a migration agent ever since your application has been lodged. It therefore seems to me that this claim is a recent invention fabricated by you. …Again in your statement you give no indication as to the date of the incident when you were picked up. It seems to me that it's implausible that you would forget or not mention the date of such an important event. " 16 The operation of s 424A in respect of the RRT, and its counterpart (s 359A) in respect of the Migration Review Tribunal, have been considered in a number of cases. In Carlos at [21] I summarised the operation of the section as follows: "21. The operation of s 424A of the Act, which is the counterpart of s 359A in relation to the Refugee Review Tribunal ("the RRT"), has [been] considered in a number of cases. The following propositions can be taken to have been established: · the obligation to provide the information in question is enlivened when the Tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32], Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [52]-[54], Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773 at [8]-[9]; · if information adverse to an applicant is relied upon in the reasons of the Tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at 33]; · untested assertions communicated to, or received by, the Tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the Tribunal has received information "regardless of its source" if it considers the information would be a reason or part of the reason for affirming the delegate's decision: see Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 at [18]-[20]; · the section is concerned with information of which the Tribunal becomes aware, rather than with its subjective decision making process: see Tin at [54]." 17 In Al Shamry the Full Court determined that the exception in s 424A(3)(b) only applied to exclude from the operation of s 424A information an applicant gave for the purpose of the application for review by the RRT. Accordingly, information given by an applicant in the original application form for a protection visa is information capable of enlivening the obligation set out in s 424A. In Al Shamry at [39] (in a passage with which Ryan and Conti JJ at [20] agreed) I stated: "Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes 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 reason 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. Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 179 ALR 238 at 269 per McHugh J. By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information." 18 My decision in Carlos was appealed to a Full Court: see Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087. On appeal the Full Court at [29] gave as an example of the enlivening of the obligation under s 359A a situation where a piece of factual information about an application that was potentially prejudicial to the applicant's case was given to a Tribunal member hearing the case. 19 In Paul at [94]-[119] Allsop J (with whom Heerey J agreed) considered the operation of s 424A. Allsop J at [104] stated that s 424A "should be looked at with a purpose in mind of ensuring that the applicant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made and steps may be taken, somehow, if possible, to meet it.". His Honour observed: "The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]). However, at the risk of repetition, it should not be forgotten that the applicant is to be given particulars of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision. Assistance as to the meaning of the word "reason" can, perhaps, be obtained from s 430." 20 Allsop J, however, at [94] stated that as s 424A only required the RRT to give particulars of information that it considers would be the reason, or part of the reason for affirming the decision, he had some difficulty in seeing how there could be a failure to observe a procedure required to be engaged in under s 424A "unless and until a decision is handed down without compliance with s 424A". In that regard his Honour disagreed with the views expressed by myself in Carlos and Al Shamry and by Hill J in Naing v Minister for Immigration and Multicultural Affairs [2000] 97 FCR 336 at [32] and in Nader v Minister for Immigration and Multicultural Affairs [2000] 101 FCR 352 at [58]-[59] as to the time the obligation arises and whether the information to be particularised was any information adverse to the applicant's claim. 21 On the first issue his Honour was making the point that, as the RRT can only consider that information would be the reason or part of the reasons for affirming a decision when it has made the decision, a failure to observe the procedures required by s 424A cannot arise unless and until a decision is handed down without compliance with s 424A. While it may be accepted that, generally, a breach of s 424A can only be ascertained to have occurred upon the handing down of a decision it does not follow that the time for compliance with s 424A can only arise when the decision is handed down. For example, it may well be that prior to the decision being handed down or made the Tribunal may state to the applicant that it has considered that particular information that it has received would be the reason or part of the reason for affirming the decision that is under review. In such circumstances I am in no doubt that the obligation set out in s 424A is enlivened if the information is not information excepted from its provisions under s 424A(3) notwithstanding that it is open to the Tribunal to reconsider its view prior to making its decision. Indeed, the purpose of s 424A is to afford an applicant the opportunity of persuading the Tribunal to reconsider or change its view prior to making its decision. 22 A distinction needs to be drawn between the point in time at which the obligation to comply with s 424A is enlivened and the point in time at which it can be ascertained that the section has not been complied with. A construction that the obligation to comply with s 424A can only arise when the decision is handed down would effectively render its purpose nugatory. 23 On the second issue raised by Allsop J it is not surprising that observations in the decisions to which he referred have, in general, stated the obligation under s 424A as relating to information that is material and adverse to the applicant. However, my observations, and I believe those of Hill J, need to be read in the light of the acceptance that the enlivening of the obligation can only arise in respect of information that would be a reason or part of the reason for the Tribunal's decision. In that context I understand the observations with which Allsop J disagreed to be stating that material and adverse information is the subject matter with which s 424A is concerned but the particular information required to be disclosed under the section is only that which the Tribunal considers would be the reason or part of the reason for affirming the decision under review. 24 However, not a great deal turns on the possible differences in the views expressed above as, in the present case, the issue is whether the "information" that formed part of the RRT's reasons for affirming the decision under review was information for the purposes of s 424A. 25 In Al Shamry the Full Court held that the obligation of the RRT under s 424A was enlivened as the information relied upon by the RRT was information provided by the applicant at his airport interview which was inconsistent with later statements by him. The present case, however, is not concerned with earlier inconsistent statements; it is concerned with a perception (on the part of the RRT) of a lack of specificity and detail in the earlier statements. In those circumstances the complaint of the applicant is not in respect of the failure to provide particulars of information set out in the original application form. Rather, the complaint is about the information that was not set out in the original application form. Thus, the Minister is correct in contending that the information "in question in the present case is the subjective appraisal or thought process of the RRT in determining that the information provided by the applicant in his original application lacks specificity and detail". Put another way, it is the RRT's qualitative assessment of the information provided in the original application form, rather than its content, that was a reason for the RRT affirming the decision of the delegate of the Minister. As was explained by Sackville J in Tin at [53]-[54] and by Allsop J in Paul at [95] the reaches of s 424A do not extend to embrace that kind of "information". 26 In Paul Allsop J observed (at [95]) there may be a fine line between the subjective views of the RRT and the information upon which those views are based, as it is only the thought processes of the RRT as expressed in its reasons that will reveal the relevance for the purposes of s 424A(1)(b) of the information in respect of which the RRT may be required to give particulars and explain its relevance. However, even accepting the fine line referred to by his Honour, in my view the line is clear in the present case as the RRT's thought processes related to the information that was not provided, rather than to the information that was provided. 27 Accordingly, I have concluded that the Minister is correct in his contention that s 424A was not breached in the present case. 28 In view of the conclusion I have reached it is unnecessary for me to decide the Minister's further submission that, even if s 424A was breached, the applicant was not denied the possibility of a successful outcome. However, there is some substance in the Minister's contention that the RRT's concerns about the lack of specificity and detail in the original application were fairly and explicitly raised with the applicant, and responded to by him, at the hearing. Significantly, the applicant's response was that at the time he completed his application he was stressed and did not realise that he should include the details about which he was being asked by the RRT at the hearing. It is clear that the RRT did not accept the applicant's explanation or the other answers he gave to it concerning the lack of specificity and detail he had provided in his original application. In those circumstances I doubt that the outcome could have been any different had the applicant received an invitation in writing under s 424A from the RRT to comment on those matters. However, I need not pursue that matter further as I am not satisfied that there was a breach of s 424A by the RRT in the present case. 29 It is also unnecessary for me to rule on the admissibility of an affidavit filed by the applicant seeking to explain why he had not adequately answered the questions asked of him by the Tribunal concerning the inadequacies in his original application and stating that he did not realise that the Tribunal was proposing to use those inadequacies in the manner that it did. I doubt that the affidavit is admissible as the issues of whether the obligation in s 424A was enlivened and whether the obligation was satisfied are to be determined objectively by reference to what had occurred rather than by reference to the subjective thought processes of the applicant as to what had occurred. 30 Accordingly, for the above reasons, the application is to 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 Merkel.