SZCIC v Minister for Immigration & Multicultural & Indigenous Affairs

The proceedings in the Federal Magistrates Court 9 Before the learned Federal Magistrate the appellant claimed as follows: '(1) I strongly believe that the RRT made a wrong decision on my application and involved an error of law.

(2) That I produce substantive amount of evidence in the support of my claim but neither Department not RRT considered the fact that I am a fit and proper person to whom protection visa shall be granted.

(3) That all the procedures required by law were not followed by the Department and the RRT.

10 In oral submissions, the appellant further sought to explain his non-attendance at the Tribunal hearing. He claimed that he had been misinformed by advice from his migration agent that he did not need to, or should not, attend the Tribunal hearing. 11 His Honour considered this assertion but found that there was no evidence to support it, either in the form of an affidavit from the appellant or by way of other corroborative material. In his Honour's view, the Tribunal had followed the appropriate procedures laid down by the Act. An invitation had been extended to the appellant in accordance with s 425 and s 425A and, on 7 November 2003, the appellant had advised the Tribunal in writing that he did not wish to give oral evidence and consented to the Tribunal reaching a decision without any further action to allow or enable him to appear before it. 12 The other grounds relied upon by the appellant included one that the Tribunal had made a wrong decision involving an error of law. The learned Federal Magistrate found that the claims of the appellant involved the series of assertions which have been summarised at [3]-[6] above and which were supported by various documents, including newspaper articles and statements in support of the application. 13 The learned Federal Magistrate found that the Tribunal had considered the claims and evidence set out in some detail in its decision and had then proceeded, albeit in the absence of the appellant, to make findings reasonably open to it. His Honour noted that the appellant's absence had made it hard for the Tribunal properly to assess issues, including credibility, and otherwise to evaluate the strength of the claims made by the appellant. However, he considered that, since the appropriate procedures had been followed, those difficulties could not invalidate the result at which the Tribunal had arrived. Accordingly, his Honour concluded that none of the claims raised by the appellant had been established and the Tribunal's decision was free from jurisdictional error.

The appeal to this Court 14 By notice of appeal to this Court filed on 12 September 2005, the appellant claimed that the learned Federal Magistrate had erred by failing to hold that the Tribunal had contravened the requirements of s 424A of the Act. The appellant further claimed that the Tribunal had erred by ignoring relevant materials to which the appellant had referred before the Federal Magistrates Court. As well, it was said, the decision of the Tribunal was vitiated by denial of natural justice. Moreover, the learned Federal Magistrate was said to have erred by regarding any errors by the Tribunal as protected by s 474 of the Act, by failing to find that the Tribunal had misconstrued and misapplied the definition of "persecution" in the Refugees Convention and by dismissing the application for review of the Tribunal's decision.

Section 424A 15 In his written submissions in relation to the first ground of appeal, Counsel for the appellant contended that the letter sent to the appellant pursuant to s 425 inviting him to attend a hearing had not complied with s 424A. It was acknowledged that the letter indicated that the material already submitted was not sufficient to ground a decision favourable to the appellant and that a hearing was required. However, the appellant submitted, the letter failed to provide particulars under s 424 or s 424B bringing it to his attention that failure to attend the hearing would result in certain rejection of his protection visa application.

Section 425 16 As to the second ground of appeal in relation to the invitation dated 20 October 2003 pursuant to s 425 of the Act, the appellant submitted that the "Response to Invitation form" does not allow for an explanation for non-attendance where non-attendance will be fatal to the appellant's claim. It was submitted that the decision not to attend the hearing had been exercised by the appellant's migration agents and the Tribunal had been in error by failing to seek an explanation from the migration agents for the appellant's non-appearance at the hearing. 17 Counsel for the appellant submitted that the appellant's poor English skills requiring the assistance of an interpreter indicated an inability fully to comprehend written communication which increased his dependence on the migration agents. Irrespective of whether the Tribunal was aware of these circumstances, it was submitted, the failure by the Tribunal to issue a meaningful invitation pursuant to s 425 without full knowledge of the appellant's circumstances constituted a jurisdictional error; Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126. 18 It was also submitted, that where an applicant's migration agent has failed, through inexperience or incompetence, to give proper advice to the applicant, it would be wrong to treat that mistake as fatal to an application for a protection visa; Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 179 ALR 238, at 219. Failure to take into account relevant material 19 The appellant's third ground of appeal claimed that the Tribunal had ignored relevant material in concluding that there was not sufficient, detailed information about his claims for the Tribunal to be satisfied that he met the definition of refugee in the Refugees Convention. 20 In written submissions, Counsel for the appellant contended that there was evidence before the Tribunal in the form of a statement made by the Police Department of the Government of Andhra Pradesh which "certifies that the appellant's elder brother is a well-known politician and that together with their father they were brutally attacked twice in the last year by Muslim Party MIM workers who since have been charged with arson and murder". The statement further "certifies" that there is a regular threat to the appellant's family in India. 21 Counsel for the appellant submitted that, in the absence of any adverse finding about the authenticity of the Police Department's statement, to regard that information as insufficient to bring the appellant within the definition of refugee in the Convention was so unreasonable that no reasonable Tribunal could have come to that conclusion; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 18. 22 It was further submitted on behalf of the appellant that, although the Tribunal had noted that the Police Department had not taken the attacks so seriously as to charge the culprits, it had not been able to prevent the attacks from occurring. Counsel relied upon Gaudron J's statement in Miah that fear may even "be well-founded notwithstanding that the individual concerned is able to avail himself of the protection of the country of his or her nationality". Persecution 23 In addition, Counsel for the appellant claimed that his Honour had fallen into error by failing to find that the Tribunal had misconstrued and misapplied the definition of "persecution" contained in s 91R of the Act. It appears to be contended that the Tribunal had been obliged, in the light of the appellant's assertions, to find that the persecution which he said would be inflicted by his political opponents if he returned to India, would involve "serious harm" within the meaning of s 91R. The appellant also claimed that the Tribunal had been unreasonable in declining to accept his claims as true, and consequently, sufficient to bring him within the definition of "refugee" in Art 1A(2) of the Refugees Convention.

(i) Did the Tribunal fail to comply with the requirements of s 424A in such a way as to commit jurisdictional error? 24 The appellant claimed that a breach of s 424A of the Act had occurred because, on the advice of his inexperienced migration agent, he did not attend the hearing of the Tribunal to which he had been invited. 25 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162,which was decided after the Tribunal's decision in the present matter, a majority of the High Court held that the Tribunal must strictly comply with s 424A of the Act. 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

(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.

(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 person is a member; or

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

26 Subsection (1) of s 424A requires the Tribunal to give an applicant particulars of information that would be the reason, or part of the reason, for affirming the decision under review, explain the relevance of the information and invite the appellant to comment upon it. In the present case, according to the appellant, the Tribunal failed to comply with those requirements. 27 In its reasons, the Tribunal noted aspects of the appellant's claims that it wished to have discussed with him. Section 424A(3), however, excludes from the Tribunal's obligation to give particulars, information that is not specifically about the appellant or information that the appellant gave for the purpose of the application. In my view, the information submitted by the appellant to the Tribunal was information given for the purposes of the application for a review under s 424A(3) as the appellant specifically adopted in support of his review application the submissions which he had made to the Department when originally seeking a protection visa; see M55 v Minister for Immigration & Multicultural & Indigenous Affairs 2005] FCA 131 where Gray J observed, at [25]; 'By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal's obligations pursuant to s 424A(1) and (2).' 28 Moreover, the Tribunal is not obliged to give to an applicant any information that is not specifically about the applicant or another person. I agree with the submission of Counsel for the respondent that the information which the Tribunal "would have liked to discuss" with the appellant included information to the effect that Telugu Desam was the leading party in Andhra Pradesh, holding 180 out of 194 seats. That was information not specifically about the appellant or another person but was in the nature of "country information" about the balance of power in Andhra Pradesh and about the Telugu Desam party of which the appellant had been a member. Accordingly, it fell within the exception delineated in s 424A(3)(a). Insofar, as the Tribunal "would have liked to discuss" with the appellant matters specifically related to him such as his position in the Telugu Desam party, why he was being targeted by its political opponents and when he had joined the party, that was information which the Tribunal expressly indicated that it did not have. Ex hypothesi, it could not have been the reason or part of the reason for the Tribunal affirming the decision that was under review within the meaning of s 424A(1)(a). Ultimately, the reason why the Tribunal affirmed the decision under review was its inability, in the absence of seeing and hearing the appellant and receiving further information of the kind indicated in its reasons, to be satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he were returned to India. 29 Accordingly, these observations of Allsop J in SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195 at [29] can be paraphrased to apply to the present case; 'On one view, it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.' 30 Similar considerations support the view, apparently taken by the learned Federal Magistrate in the present case, that a perception by the Tribunal that the evidence adduced by an applicant is vague, lacking in detail or otherwise unpersuasive does not engage s 424A. 31 It was next submitted on behalf of the respondent Minister that "information", particulars of which must be given to an applicant pursuant to s 424A(1), does not extend to the Tribunal's thought processes or appraisals of evidence on the way to arriving at its ultimate decision. In a related way, it was contended that any "information" not provided to the appellant related to only one ground on which the Tribunal's decision could be supported and did not affect three other bases which independently warranted its decision in this case. Reference was made to VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 where North J held, at [33], that; 'SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.' 32 I am not sure, with respect, that the availability of other independent grounds for affirming the delegate's decision will always relieve the Tribunal from the obligation imposed by s 424A(1) to give an applicant particulars of information presumptively coming within that subsection. That is because the obligation is expressed to arise at an intermediate stage of the Tribunal's reasoning on the way to its ultimate conclusion. That is made clear by the present tense of the verb "considers" and the fact that the subsection is directed to information that the Tribunal considers "would be the reason or part of the reason" for affirming the decision under review, (emphasis added). The use of the conditional "would be" contemplates that the Tribunal's view of the information will be provisional, and susceptible to change in the light of the applicant's comments on it. If the Tribunal had, at the relevant time, decided that the decision under review must be affirmed on a ground unrelated to the information in question, there would be no occasion for complying with s 424A(1) because, necessarily, the information would not be the reason or part of the reason for the ultimate decision. These reflections give point to the observations of Allsop J in SZEZI (supra) that in some cases an "unbundling" of the Tribunal's reasons may be necessary in order to give a sensible application to s 424A. However, in the present case the difficulty does not arise because there was no "information" of a kind capable of attracting the operation of the section.

Did the Tribunal fail to comply with s 425 in such a way as to commit jurisdictional error? 33 The Tribunal wrote to the appellant on 20 October 2003 advising that it had considered the material before it but was unable to make a decision in his favour on that information alone. The same letter invited the appellant to attend a hearing to give oral evidence and present arguments in support of his claims. The invitation was declined by ticking the box on the Response to Hearing Invitation beside the expression "No I/we do not want to come to a hearing" and "I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it." The response form completed in that way was dated 7 November 2003 and received by the Tribunal on the same day. 34 As already indicated, Counsel for the appellant sought to explain that election as attributable to the inexperience or incompetence of the migration agents, Intraworld Immigration Services, and invoked the statement by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at 293 [219] to the effect that a procedural mistake by the former solicitor of an applicant for a prerogative writ should not be treated by the Court, in the exercise of its discretion, as fatal. 35 However, in the present case, the mistake was not merely procedural. It apparently involved a conscious election not to appear or adduce oral evidence at the hearing of the Tribunal to be held on 20 November 2003. No evidence was addressed before the Federal Magistrates Court from either the migration agents or the appellant himself to explain that election. I can, therefore, discern no error in the learned Federal Magistrate's treatment of this issue in the following passage at [24]-[26] of the reasons below: '24. The court for the present purposes is prepared to at least consider that as a factor amongst other factors raised for and on behalf of the applicant but notes at the outset that there is no evidence to support that assertion, either in affidavit form from the applicant, nor indeed is there any other evidence of a corroborative nature which may support a conclusion. Nevertheless, I will deal with it as part of the submissions of the applicant.

25. By way of background, it is noted that in this instance the applicant did not attend the RRT hearing. A careful examination of the documentary material provided to the court satisfies me that the RRT have followed the appropriate procedures available to it under the Migration Act 1958 (the Act). An invitation was extended to the applicant, and he declined, to attend the hearing.

26. It is clear to me that in the circumstances, albeit with an explanation now offered as to the reason for non-attendance, that the applicant had been given every opportunity to attend and provide oral evidence. Indeed the invitation was extended to the applicant and on 7 November 2003 he advised the tribunal in writing that he did not wish to give oral evidence and consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The conclusion I reach in relation to that issue is that there has been indeed no breach of proper procedures under the legislation.'

36 On the appeal to this Court, it was faintly argued by Counsel for the appellant that, having received the "Response to Hearing Invitation" in the form described at [33] above, the Tribunal should have been put on enquiry of the appellant or the migration agents to satisfy itself that the election had been made with a clear understanding of its consequences. However, I have not been able to detect anything on the face of the Hearing Invitation or the Response to Hearing Invitation forms, or in the language of any of ss 425, 425A or 426A which can assist the appellant to make good that contention.

(ii) Did the Tribunal fail to accord procedural fairness or take into account a relevant consideration? 37 Under the heading "Findings and Reasons" the Tribunal stated that it had given close consideration to the material in the appellant's protection visa applications and to the available country information but that, in the absence of the appellant attending a hearing, there was not sufficient, detailed information about his claims for the Tribunal to be satisfied that he met the definition of refugee under the Convention. 38 The learned Federal Magistrate noted that documents had been provided in support of the appellant's claim that his brother and father had been attacked during an election in January 2002 by members of MIM. However, his Honour went on to observe, at [30]-[32] of his reasons; '30. … On a proper reading of the decision it seems to me that the RRT has considered the claims and evidence set out in some detail in its decision and has then proceeded to make findings reasonably open to it, albeit in the absence of the applicant. That absence certainly made it difficult for the RRT to properly assess issues, including credibility, and otherwise to assess the strength of the claims made by the applicant.

31. However, having followed the appropriate procedures, that difficulty is a difficulty which should not then form the basis of any criticism of the RRT in circumstances where, as I found, proper procedures were followed.

32. However, it is clear from the RRT's own decision that there are many issues it would have liked to have pursued with the applicant in relation to the claims he made. That alone however does not, as a matter of law, provide any or any proper basis upon which this court can conclude that there is jurisdictional error. Hence the assertion by the applicant that the RRT simply made a wrong decision involving an error of law is not made out. That ground should fail.'

39 Having examined for myself the Tribunal's reasons for decision, I consider, with respect, that his Honour's analysis is entirely correct. It reflects an appreciation of the Tribunal's awareness of what considerations were relevant in light of the way in which the appellant chose to advance his claims. As indicated earlier in these reasons, there was nothing in the procedures adopted by the Tribunal which was capable of amounting to the species of jurisdictional error constituted by a failure to accord procedural fairness.

(iii) Was the Tribunal's decision so unreasonable that no reasonable Tribunal could have made it? 40 In support of his contentions under this head, Counsel for the appellant pointed to the certificate purportedly issued by the "station house officer", an inspector of police at the Chatrinaka Police Station in Hyderabad. That certificate was part of the documentary material submitted to the Tribunal on behalf of the appellant and recited that the writer confirmed "that the appellant's brother is a well-known politician and social worker in the city of Hyderabad, Government of Andhra Pradesh under" the Chief Minister of that government. The same document recited that the appellant's brother and father and the appellant himself were "attacked by Muslim party MIM workers, were attacked brutally twice in last one year and a case has been registered of arson and murder. There is a regular threat to [the appellant's] family in India." 41 It was said that, in the absence of an adverse finding about the authenticity of that police statement, it was unreasonable for the Tribunal not to have found that the appellant had a well-founded fear of persecution for a Convention reason; see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In my view, the appellant's argument under this head misstates the reasoning process in which the Tribunal engaged. By contrast with Chan, where there was a concession that the applicant may have been discriminated against to a limited degree in China, the Tribunal here made no finding as to whether the appellant, his brother and father had been attacked in the way described in the police statement. Nor was it able to find, assuming that there had been such an attack, whether the appellant would be at risk of similar violence in the future given the apparently dominant position now occupied by his Telugu Desam party in the Andhra Pradesh government. Doubtless it was consciousness of the need to make such an assessment of future risk which led the Tribunal to indicate in its reasons that it "would have liked to discuss" with the appellant several matters including when the assassination attempt took place and the appellant's claim that the alleged assailants were free on bail. It was also open to the Tribunal to seek to explore how the police statement had been brought into existence and whether its contents corresponded with the appellant's version of the alleged attack. Understood in this way, the Tribunal's reasons do not permit an inference that it considered that matters of the kind described in the police statement could not amount to "persecution" within the meaning of s 91R of the Act. All that the Tribunal did was to explain why, in light of the unsatisfactory state of the evidence, it was unable to attain the requisite satisfaction that the appellant, at the time of the Tribunal's decision in November 2003, had a well-founded fear of persecution in India for a Convention reason.

Conclusion 42 The fact that the appellant has apparently suffered from the inexperience or incompetence of his migration agents naturally excites some sympathy. However, that is not a sufficient basis on which to impute jurisdictional error to the Tribunal. As I have endeavoured to explain, none of the alleged errors of that kind which the learned Federal Magistrate was invited to find, has been made out, either at first instance or on appeal. The appeal must therefore be dismissed with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Appellant: Goz Chambers Lawyers

Solicitor for the First Respondent: Australian Government Solicitor

Date of Judgment: 1 September 2006