SZAKT v Minister for Immigration & Anor

"The Tribunal failed to inform the applicant in the manner required by s424A of the Migration Act 1958, of information that it had which would be the reason or part of the reason for affirming the decision under review, and which the applicant had not given to it:

(a) That the Tribunal member who considered the applicant's parents' protection visa review application in N99/30586 could not be satisfied as to their credit.

(b) That the Tribunal relied on the claims set out in RRT decision N99/30586.

(c) That the Tribunal in N99/30586 found that the applicant's parents did not have a well founded fear of persecution.

(d) That the Tribunal was of the view that the decision in RRT decision N99/30586 was correct."

The context in which the applicant's claim has been made is found in the findings and reasons of the Tribunal:

"A decision dated 11 March 2002 (N99/30586) by the Tribunal, differently constituted, considered the claims of the applicant's parents and found that they did not have a well founded fear of persecution. The applicant father claimed to have been a prominent member of the Freedom Party and that his family home was ransacked and his family members injured in February 2002 by members or former members of the Awami League protected by the BNP. The Tribunal found that it could not be satisfied as to the credibility of the applicants and therefore could not be satisfied that the applicant father had the association with the Freedom Party that he claimed. Further it found no independent evidence to support his claim that current or former members of the Freedom Party have had any problems with the BNP (which has historically had good relations with the Freedom Party) since the BNP regained government in 2001. The presently constituted Tribunal has considered the evidence presented to the Tribunal that considered the applicant's parents' claims, and is satisfied that the Tribunal that considered those claims made the correct decision. The Tribunal has had no fresh evidence placed before it, nor has it found any additional evidence, that would lead it to have any doubts as to the correctness of the applicant's parents' decision. In the light of the applicant's parents not having a well founded fear of persecution should they return to Bangladesh, the Tribunal finds no reason as to why the applicant has a well founded fear of persecution should he travel to Bangladesh." [CB 50-51]

The respondent conceded that the Tribunal decision in N99/30586 constituted information which would be required to be given to the applicant in accordance with s.424A(1) of the Migration Act 1958 unless it was excluded by the provisions of s.424A(3)(b):

"Applicant must be given certain information

(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.

....

(3) This section does not apply to information:

(a) ...

(b) that the applicant gave for the purpose of the application; or

(c) ...

The respondent argues that the information was information given by the applicant for the purposes of the application because in his application for a protection visa there is found in response to question 40 "Why did you leave that country" the following:

"I was born in Australia dated 24/08/02.

CLF 1999 5588

RRT 99030586"

In response to question 42 "who do you think may harm/mistreat you if you go back" are the words:

There is no other indication of the applicant's grounds and reasons for claiming asylum contained in the application.

The Refugee Review Tribunal file in the case of the applicant's parents was therefore clearly a matter put before the delegate. This raises two additional questions. The first is whether it could be said that the decision of the Refugee Review Tribunal to the extent of its findings and reasons in respect of the parents' claims was included in that reference and secondly whether what was before the delegate was also put before this Refugee Review Tribunal. The applicant argued that the reference in question 40 to these two files was no more than that and was not the placing by the applicant of the information contained in the files to the delegate. This is not an argument I accept. In the context of the otherwise total lack of information about the applicant's claims the response to question 40 given the response to question 42 was a shorthand way of repeating those claims made by his parents to the delegate.

But it is not enough for the respondent to establish that the information was put before the delegate by the applicant. He must establish that information before the delegate was then provided to the Tribunal for the purposes of the application; Minister for Immigration v Al Shamry (2001) 110 FCR 27; SZEEU v Minister for Immigration [2006] FCAFC 2 The way in which the respondent says this was done was by reference to the first paragraph completed by the applicant's father on his behalf to section D of the Tribunal forms found at [CB 34]. The form says:

"Please tell us why you consider yourself to be a refugee. Any person included in this application may send a separate statement if they want to."

"I am not satisfied by the DIMIA decision due to the delegate overlook lots of relevant information of my claim."

There are other responses to section D but none of them are considered by the respondent to be relevant. In a very similar case to this SZEJB v Minister for Immigration [2006] FMCA 420 Nicholls FM accepted the Minister's submissions in that case which he sets out at paragraph 9 on page 18 of his judgment as follows:

"6. Secondly, the applicant, in his application to the Tribunal had said he sought review because he was "not satisfied with the Departmental delegate decision. The Departmental delegate overlook relevant issues of my claims. The Departmental delegate did not give me the opportunity to provide oral evidence. I am a genuine refugee applicant. I have no way to return back to my country. I have real chance of persecution if I return back to India. I will provide more statement at the time of interview." His protection visa claim relied solely on the claims of his parents, a matter already decided by the Tribunal. The reason for the decision by the Tribunal was its failure to be satisfied that the applicant had a well-founded fear of persecution in circumstances where the applicant was an infant, relying completely on the claims of his parents, whom the Tribunal had dealt with separately. The Tribunal could not make its decision without considering the entitlement of his parents to a protection visa. Therefore, there was no breach of section 424A: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25]; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5] and SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 at [11]."

It will be seen immediately that the applicant in SZEJB was also a minor and used very similar words to that of this applicant before me when he stated:

"The departmental delegate overlook relevant issues of my claims."

Mr Free, who appeared for the Minister in the instant case, says in his written submissions:

"By this statement the applicant invited the RRT to refer to the information setting out his claim, as previously provided to the Minister's delegate as part of the application for a protection visa. This was an adoption or republication by reference of that information and the information was effectively "given" to the RRT for the purposes of the review application. As explained above SZAKT's protection visa application itself incorporated by reference the RRT file relating to SZAKT's parents including the decision of 11 March 2002. The adoption or republication by reference of SZAKT 's earlier claims therefore included an adoption or republication by reference of the RRT's decision of 11 March 2002."

The decision of Nicholls FM in SZEJB was considered on appeal by Conti J as part of a decision entitled SZCDA v Minister for Immigration [2006] FCA 1374. His Honour dealt with this issue at [16] et seq of his judgment. At [18] his Honour says:

"The Minister pointed to the following 'facts and circumstances' in making the submission that the first appellant 'adopted' or 'republished' the material in his protection visa application during the hearing before the Tribunal

(i) First, the appellants stated in their application for review that, '[w]e are deeply aggrieved by the decision made by the case officer of the Department of Immigration and Multicultural Affairs';"

His Honour rejected that argument saying at [21]:

"I do not find force in that submission by the Minister, as the combination of those 'facts and circumstances' relied upon by the Minister do not demonstrate, in accordance with NAZY, that the appellant adopted his protection visa application for the purposes of his application for review. As a consequence it appears the Tribunal did breach s.424A(1) by relying upon information contained in the appellant's protection visa application, and by not providing particulars of that information to the appellant."

The first respondent urges me not to follow this decision of Conti J because she says there is a later decision of Greenwood J also on appeal from a Federal Magistrate in SZEPI v Minister for Immigration [2006] FCA 1645. The facts in that case as set out by his Honour at [16] and [17] are relevantly that in the application for review the applicant stated inter alia:

" I do not think that the Delegate has considered all of my claims fairly and carefully.

Obviously, the decision-maker has never ever carefully considered my claims, and he has never ever understood my circumstance correctly."

In the context of those phrases his Honour said at [59]:

"In the context of an application to the Tribunal to undertake the jurisdictional task of reviewing the decision of the Respondent's Delegate, these statements of the Appellant can only be construed as an express request by the Appellant of the Tribunal to gather together before the Tribunal all of the documents and information describing the circumstances, facts and contentions going to the Appellant's claim for a protection visa including all material before the First Respondent's Delegate and to review that material so as to reach a focused, informed and accurate assessment for itself of the strengths and weaknesses of the claim to a well-founded fear of persecution. Such a request might be described as a republication but its proper character is an express request of the Tribunal to descend into the merits of the claim and to properly have regard to all of the facts, circumstances and contentions which are said by the Appellant to be persuasive of the Appellant's claim of a well-founded fear of persecution. In determining that question in the exercise of the Tribunal's jurisdiction, the Tribunal must necessarily have regard to all of the information put to the First Respondent by the Appellant in connection with the application for a protection visa."

It is clear from the citations that Greenwood J was not referred to the decision of Conti J when he made his later decision. I would also respectfully distinguish the decision of Greenwood J from that of Conti J and the case before me in that the words used by the applicant in the former case are much more easily construed as a request to consider all of the claims put before the delegate than the phrase used by this applicant which I would construe as a ground for bringing the case to the Tribunal (the applicant's lack of satisfaction with the delegate's decision) rather than being a shorthand way of putting his own claims before the Tribunal. I would therefore consider myself bound by the decision of Conti J rather than that of Greenwood J in this regard.

If I am wrong about whether the applicant put the files of the delegate and the RRT in his parent's case before the Tribunal and did so by the response made in section D then I must consider whether or not putting the file included putting the facts of the Tribunal's rejection of his parent's claims and the reasons therefore. To my mind that would be considered an irrational thing to do. Why would an applicant be supporting his claim for refugee status with a refutation of his parent's claim upon which he relies. I cannot accept that that was the intention at all. At most it could be said that the applicant intended to put his parent's grounds for claiming asylum to the Tribunal and asked that those be looked at afresh through eyes attuned to his own case. In those circumstances the decision of the other Tribunal and the reasons for that decision, in particular the references to the parent's credibility must constitute information which should have been provided to this applicant by way of a s.424A letter.

If this case was remitted to the Tribunal the Tribunal would be obliged to look at the claims of the applicant in the light of current circumstances in Bangladesh. Those circumstances may well have changed quite considerably since the original decisions in the parent's case were made. Therefore it cannot be said that there is no utility in referring this matter back to the Tribunal. I will make orders granting the constitutional writs requested by the applicant and refer the matter back to the Tribunal to be heard and determined according to law. The applicant has succeeded in his claim and is entitled to his costs but much of those costs would have been subsumed in the initial application made to me to reopen the case. Because of the applicant's father's delay in bringing that application I made it clear that I would not be awarding the applicant any costs. I reserved the question of the respondent's costs. If the respondent had been successful before me I would have awarded her the costs of the interim application but she was not successful and in regard to that application I will make no order as to costs. In regard to the substantive application I assess the applicant's costs to be paid by the first respondent in the sum of $2,000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM.