SZCIC v Minister for Immigration & Multicultural & Indigenous Affairs - [2006] FCA 1194 - FCA 2006 case summary — Zoe

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SZCIC v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 1194

Federal Court of Australia|2006-09-01|Before: Ryan J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2006-09-01

Before

Ryan J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

REASONS FOR JUDGMENT 1 This is an appeal from orders of a Federal Magistrate made on 25 August 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 18 December 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of India. He arrived in Australia on 26 February 2003 travelling on a business visa with a passport issued in Hyderabad on 2 November 2000 and valid until 1 November 2010. On 12 March 2003 he lodged an application for a protection visa (Class XA) and authorised Intraworld Immigration Services to act on his behalf as migration agents. 3 The appellant's claims were set out in his submissions in support of his visa application which had been prepared and lodged with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") by his migration agents. 4 The appellant claimed to be an active political leader of Telugu Desam Party and the General Secretary of its youth section for the Moghulpura constituency. As well, the appellant asserted that his family had strong political affiliations, his elder brother being the area president of Telugu Desam for Moghulpura. 5 The description in his visa application of the political activity of himself and his brother is not entirely clear. However, it seems that, as a reward for the long service to the party of the appellant and his brother, the Chief Minister of Andhra Pradesh, who is also the leader of Telugu Desam, gave preselection to the brother to contest, as a Telugu Desam candidate, an election to the office of councillor within the constituency of Moghulpura. That attracted hostility from other Telugu Desam party workers as well as from the party leader and supporters of the opposing party. 6 In the course of their strenuous and enthusiastic campaign for the brother's election, an attempt was made to kill the appellant, his brother and other members of his family. As a result the appellant and his brother suffered "serious bleeding injuries" while other family members suffered "minor injuries". Complaints were made to the police implicating the leader of the Muslim Ettehadul Muslimeen Party ("MIM") and some of that party's workers but they were released on bail and, due to corruption, administrative incompetence and political favouritism, the culprits are "roaming freely in the area" and in a position to kill the appellant and his brother. The brother, according to the appellant, has gone "underground" and is waiting for a chance to leave India. 7 The appellant was informed by Notice of Invitation to Hearing dated 20 October 2003 pursuant to s 425 and s 425A of the Migration Act 1958 (Cth) ("the Act") that the Tribunal was unable to make a decision in favour of the appellant on the basis only of the appellant's written submissions to the Department and other material referred to in the decision of the delegate of the Minister or available to the Tribunal from "a range of sources". However, on 7 November 2003, the appellant advised the Tribunal that he did not wish to give oral evidence and consented to its deciding the application for review without affording him an opportunity to appear before the Tribunal. 8 The Tribunal accepted that the appellant was an Indian national. The Tribunal noted that he had sought protection because of a fear of persecution in India for reasons of his active political leadership of the Telugu Desam Party, his position as general secretary of the youth section of that party for the Moghulpura constituency and his family political affiliations. The Tribunal stated that it had given "close consideration to the appellant's claims in his protection visa application". However, the Tribunal observed, at p 8 of its reasons: 'The applicant's claims of his association are very general and non-specific. In the absence of the applicant attending a hearing, there is not sufficient, detailed information about his claims for the Tribunal to be satisfied that he meets the definition of refugee under the Convention.'

[5]

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.

[8]

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.

[17]

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.

[18]

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.

[26]

(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.