SZBJL v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The history of this matter is contained in two judgments of mine dated 2 December 2005 and 10 February 2006. The judgment of 2 December 2005 explains why I dismissed the present applicant's appeal for his non-attendance at the appeal. The judgment of 10 February 2006 was an interim judgment dealing with the notice of motion which the applicant filed on 14 December 2005 which motion is still before me today. That notice of motion sought orders setting aside the orders made on 2 December 2005. On 10 February 2006, I dealt with the part of that motion and that relied upon the communications that had taken place between the parties and my associate. 2 As I made clear in my reasons for judgment of 10 February I am far from persuaded that there is a proper explanation for the lack of appearance in December, however, as I indicated in that judgment, I am prepared to approach the matter on the basis that there has been an appropriate explanation for the non-attendance. As I indicated in my reasons on 10 February and also plainly to the applicant on that day, before I set aside the orders dismissing the appeal I need to be persuaded that there is some utility in the prosecution of the appeal. 3 On 15 August 2005 the applicant filed a submission in support of his amended notice of appeal. The respondent filed written submissions on 28 November 2005. In the orders that I made on 10 February I gave the applicant an opportunity to file any further submissions that he would wish to file if I set aside my orders and the appeal were to proceed. 4 The amended notice of appeal contains 14 grounds. Ground 1 is not a ground but a preface to the amended grounds. Grounds 2, 3, 4, 5, 6, 7, 8, 9, 13, 14 and 15 do not disclose on their face any species of jurisdictional error. Ground 10 asserts a failure to investigate a document. Ground 11 asserts a failure to attend to investigate the document. In this context a reference was made to NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89. Ground 12, which may have been intended the ground to refer to NARV, refers to a failure to disclose country information in breach of s 424A of the Migration Act 1958 (Cth). 5 The respondent's written submissions, though brief, are helpful. The submissions of the respondent in my view correctly identify the fact that (subject to the issue to which I will come) there is no basis in the applicant's written submissions or in the amended notice of appeal to sustain a conclusion that the Tribunal disclosed jurisdictional error. I am unable to see how there is from the notice of grounds of appeal, or the applicant's submissions any arguable claim of such jurisdictional error. The applicant has not been able to further assist with any submissions today which might add to what he has already put in writing. 6 In considering the reasons of the Tribunal I have paid particular regard to the question as to whether the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 may have provided a ground of appeal to the applicant. In particular I note the reference on page 11 of the Tribunal's decision to a reference in an earlier statement which I will assume for present purposes was not provided to the Tribunal for the purposes of the review. The Full Court of this Court last Friday, of which I was a member, concluded that the earlier decision of the Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 should not be departed from. In my reasons which in this respect were agreed with by Weinberg J, I attempted to clarify what I had said in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396and what a Full Court said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 47, a decision of another Full Court, as I saw those cases necessarily amended by what the High Court said in SAAP. 7 As I said in my reasons in that case, which is SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, the task of the Court is to understand and interpret the reasons of the Tribunal. Once the Court understands the reasons of the Tribunal it is then in the position to understand why it was that the Tribunal reached the decision it did. Once that is understood, the Court is then able to understand what was the reason or reasons, if there be more than one, why the Tribunal was not satisfied that Australia owed protection obligations to the applicant. 8 Once one understands that reason, or those reasons, one then needs to assess from the reasons of the Tribunal the reasoning process leading to a conclusion. Merely because a matter is mentioned in the reasons and merely because information is mentioned in the reasons does not lead to the conclusion that there is an obligation to comply with 424A. The information must be the reason or a part of the reason for the Tribunal reaching the view it did. 9 In this context I observe that here the Tribunal said at page 11 of its reasons: Although the Applicant said in his statement that there were two attempts on his life by BNP cronies in the first week in November 2001, from which he was saved on each occasion, he told the Tribunal that there was only one attack on his life: the one near the bridge involving the motorcycles. There was more than enough evidence before the Tribunal to argue that even this one attempt did not occur. 10 Any comparison between an earlier statement in the evidence before the Tribunal immediately raises an intellectual response that SAAP may be relevant. The information here is the prior statement in the form in which it took. However, it is clear from looking at the reasons of the Tribunal that this matter was not any part of the reasoning process leading to the conclusion that the Tribunal came to. It is merely a passing reference and the Tribunal assessed the evidence by reference to what the applicant said to the Tribunal on the day. The Tribunal, as is plain from page 14 of its reasons, disbelieved the applicant almost entirely in his evidence. 11 However on page 8 of the reasons of the Tribunal, in the second and third full paragraph the following appears: One problem for the Tribunal at this stage was that the statement, for the most part, including its disordering of historic events was identical to statements prepared by Mr Mollah for at least half a dozen other applicants, including those in RRT cases N02/42759, N02/42760 and N02/44263. The Tribunal did not jump to assume that none of the events, as recounted in the statement prepared for the Applicant, ever occurred. The Tribunal was concerned that Mr Mollah might have misrepresented the Applicant by taking money form him in exchange for a "one-size-fits-all" refugee application. This is why the Tribunal asked the Applicant if the claims in his statement were all true and correct. Since he said "Yes," and explained how he satisfied himself as to this view, it was important for the Tribunal to satisfy itself that the Applicant could consistently support all the main claims he purported to have made in the statement. 12 Unlike the passage on page 11 of the reasons this passage may raise a more real issue under SAAP. A similar issue was raised in the appeal handed down last week being SZBMI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. The relevant paragraphs of the Tribunal's reasons in that case are set out at [227] of my reasons in that case. The difficulty may be seen to be as follows: that a comprehensive body of credit findings were made by the Tribunal. It gives me no pleasure to recount them in the face of the applicant, however it must be said that the Tribunal dismissed as lies the applicant's claims about aspects of his claim and dismisses as fabrication other claims about false charges. Such strong credit findings are also reflected in the Tribunal's reasons where it says at p 15: The gravity of the Applicant's capacity for misleading both DIMIA and the RRT is shown in the claim about the Taslima Nasrin Fan Club. 13 Although the issue of the identical statements prepared by a migration agent for at least half a dozen other applications does not figure expressly in the reasoning process of the Tribunal it may be a matter of debate as to whether it played a part, even if not central, in the credit finding. 14 I am not persuaded at the moment that in this limited respect there is not some argument that might be propounded by the applicant. In those circumstances then I need to consider what the appropriate course is. In an attempt to limit the costs for the Minister I indicated that I was minded at the present time, subject to any further argument, to dismiss the motion. At the moment I do not propose to dismiss the motion. I think the appropriate course is to do the following. 15 First, I propose to give the Minister an opportunity to consider fully the Full Court's reasons in SZEEU and the other cases delivered last week. Mr Cramer has indicated that he has read them, but I think given the shortness of time since the delivery of three long judgments of the three members of the Court I should give Mr Cramer a proper time to consider in full the reasons of the Tribunal, (in particular on page 8) and how they relate to the reasons in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. 16 Secondly, once Mr Cramer and counsel if necessary has had the benefit of that consideration I would like the Minister's solicitors to indicate to my associate by a letter of course being sent to the applicant what attitude the Minister takes. It may be that the Minister is of the view that there is an argument but that it can be met. If that is the case, then the appropriate course for the Minister, it seems to me, to take would be to consent to the present application but to have the appeal dealt with on the submissions that the parties put on this SAAP point. Alternatively the Minister may take the view that the point is good in which case the Minister would no doubt consent to the notice of motion being allowed and the appeal being allowed. Alternatively the Minister may think that there is no reasonable argument that can be propounded in relation to this paragraph. 17 Once the Minister has considered her position and told my associate and the applicant of it, the appropriate course can be charted. If the Minister is of the view that either there is no arguable point or there is an arguable point but it is bad, I would consider making an order under O 80 in relation to this issue. It is unfortunate that the application is unresolved. However, the content of my reasons for judgment of December 2005 and February 2006 make plain why this has occurred and the Full Court decision in SZEEU was only handed down last Friday. 18 It should be noted that if it is not clear already, I have asked the appellant today whether he would have any further submissions to put on his appeal were it to go ahead, subject to answering anything the Minister put and he indicated that he did not have any such submissions. It is plain that he has no further submissions save for answering anything that the Minister may put. 19 Depending what the Minister's attitude is to this point I may make such an order under Order 80. Order 80 is a part of the rules which enables me to have the Registrar request the Bar Association for pro bono assistance, that is, assistance at no cost of a barrister. I propose to stand the notice of motion over to a date to be fixed, to order that the Minister send to my associate and to my appellant on or before 14 March 2006 a letter indicating the Minister's attitude to the notice of motion and any appeal in the light of the application of SAAP to the reasons, in particular the material on page 8 of the reasons. 20 I note that the Court will contemplate an order under O 80 of the Federal Court Rules, depending upon the attitude of the Minister to the issue. The Court will indicate to the parties by correspondence on or before 21 March 2006 the approach that it suggests be taken to the further disposition of the matter. 21 Therefore the orders are as follows: