SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of the Federal Magistrates Court given on 1 September 2005. The learned Magistrate dismissed an application by the appellants seeking judicial review of a decision of the Refugee Review Tribunal ('RRT'). 2 The first and second appellants are husband and wife. They arrived in Australia on 20 March 2002. On 16 May 2002, they applied for protection visas. The third appellant, their daughter, was born in Australia in September 2002 and was subsequently included in the application for a protection visa. 3 No tutor has been appointed for the third appellant in these proceedings. However, no independent claims have been made on her behalf and the Minister has indicated that no order for costs is sought against her in the event that the appeal fails. 4 Only the first appellant (to whom I shall refer as 'the appellant') made specific claims under the Convention relating to the Status of Refugees. She is a citizen of Cyprus, born in northern Cyprus in 1978. The appellant speaks and is literate in both Turkish and English and has a university degree in teaching. Prior to her departure from Cyprus, she lived in Lefke. The appellant claimed to fear persecution in Cyprus by reason of her political opinion. Her husband is a Jordanian citizen who apparently travelled to Cyprus in 1996 to study. 5 The appellant claimed to have been a member of a 'Peace Committee', the aim of which was to effect a reconciliation between the Greek and Turkish communities in Cyprus. She claimed that as a result of her involvement with the Peace Committee, enemies of that organisation attacked her wedding reception on 29 October 2001 and threatened her and her husband. The appellant claimed that she was beaten by a mob in December 2001 and escaped another attack on 1 January 2002. She also claimed that some Arab students had opposed her marriage and threatened her and her husband. She said that she had been unable to go to Jordan because her husband's family did not approve of his marriage to her. 6 The RRT did not accept that the appellant had ever been involved in the Peace Committee or in any other political activities in Cyprus. Nor did it accept that the appellant ever attended any demonstrations or marches as she had claimed. The RRT gave three reasons for making these findings: · the appellant had not mentioned her involvement in the Peace Committee until the review stage and her stated reasons for not doing so were unconvincing; · she had not associated herself with the Peace Committee (which was described as 'the 28 February Initiative') until the RRT hearing and the RRT considered that if she had really been involved in that organisation she would have referred to it by name in her original application; and · the appellant had little of the knowledge that might have been expected of somebody with her claimed political profile. 7 It followed from the RRT's findings that it did not accept that the appellant had been harassed in any of the ways she claimed. Nor did it accept that she had been ostracised by her family or otherwise. The RRT noted that its findings were consistent with the country information relevant to northern Cyprus. 8 The RRT was also not satisfied that there was a real chance of any resumption of armed conflict in Cyprus and rejected claims introduced at a late stage of the proceedings that the appellant or her family were at risk of persecution in Cyprus due to her husband's ethnicity. 9 Finally, although the RRT noted that it was not necessary to deal with the issue of relocation, it considered that a finding would be open to it on the evidence that it would be reasonable for the appellant to relocate to Government-held Cyprus via Australia. Since she was a Cypriot citizen, the RRT was satisfied that she could obtain a passport and the protection of the true authorities for her country of nationality, the Republic of Cyprus, by approaching the Cypriot High Commission and not returning to northern Cyprus. In this way, she could avoid any remaining difficulties of crossing the Green Line and the ban imposed by the Republic of Northern Cyprus on applying for a Cypriot passport. The RRT was satisfied that there is no discrimination against Turkish Cypriots living in Government-held Cyprus. 10 The appellant was represented before the Magistrates Court by counsel acting pro bono. It appears that counsel was instructed only shortly before the hearing although the appellant apparently had the benefit of legal advice in the drafting of her application. Counsel submitted, on instructions, that the hearing before the RRT was unfair, did not comply with the requirements of s 425 of the Migration Act 1958 (Cth) and that the presiding member may have been biased. 11 The Magistrate held that there was no jurisdictional error on the part of the RRT. The RRT member had obvious credibility concerns about the appellant's claims. The recitation by the RRT of the course of the hearing indicated that the member's concerns had been discussed with the appellant. The Magistrate also noted that the RRT had gone on to consider the question of relocation and had found that the appellant could relocate to the territory of the Government of Cyprus. His Honour considered that in any event this was a complete answer to any asserted jurisdictional error on the part of the RRT. 12 The notice of appeal filed by the appellant did not identify any grounds of appeal. The appellant subsequently filed an amended notice of appeal. The grounds raised in the amended notice of appeal deal only with the merits of the RRT's decision. They do not establish any jurisdictional error on the part of the RRT. Nor do they establish that the Federal Magistrates Court erred in law in dismissing the appellant's application. The appellant's oral presentation at the hearing added nothing of substance to the grounds of appeal. 13 Mr Braham, who appeared for the Minister on the appeal, very properly drew to my attention that an issue might have been raised as to whether the RRT had complied with s 424A of the Migration Act 1958 (Cth), even though no such issue had been raised before the Magistrates Court and had not been referred to in the amended notice of appeal. 14 Section 424A of the Migration Act provides as follows: '(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) … by one of the methods specified in section 441A; or (b) … (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 person is a member; or (b) that the applicant gave for the purpose of the application; or (c) …'. 15 Mr Braham pointed out that the RRT had taken into account, in its consideration of the appellant's credit, the differences between claims made in her initial application for a protection visa and in her evidence before the RRT. In particular, the RRT had referred to the fact that the appellant, in the initial application, had not mentioned any of the political activities or alleged acts of persecution on which she had relied before the RRT. 16 Mr Braham accepted that circumstances such as these may raise for consideration the question of whether the RRT had complied with the requirements of s 424A of the Migration Act. Mr Braham observed that there had been no evidence before the Magistrates Court that the appellant had been notified of the relevant 'information' (comprising the contents of the appellant's initial application for a protection visa) in the manner required by s 424A of the Migration Act. 17 In addition, Mr Braham also did not dispute that: · material contained in the initial protection visa application could be 'information' within the meaning of s 424A(1) of the Migration Act; · such material is not given for the purpose of 'the application' within the meaning of s 424A(3)(b), since that expression refers to the application for review to the RRT: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, at [17], Ryan and Conti JJ; at [40] per Merkel J; cf VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 123 at [18]-[22], per Finn and Stone JJ; and · a contravention of s 424A(1) by the RRT constitutes a jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. 18 Nonetheless, Mr Braham submitted that the RRT decision was not affected by a jurisdictional error. He advanced four arguments in support of this proposition: (i) The failure of the appellant to mention her claims in the initial application for a protection visa was not 'an integral part of the [RRT's] reasons for decision'. Therefore the RRT was not required to give the appellant details of the information contained in her initial application. (ii) The RRT made a finding that it was reasonable for the appellant to relocate to Government-held Cyprus and thereby avoid any danger of persecution in northern Cyprus. Section 424A was irrelevant to that finding. (iii) The possible breach of s 424A had never been raised by the appellant as an issue notwithstanding that she had received legal advice in preparing her application to the Federal Magistrates Court for judicial review. Consequently, the Magistrate had not erred in failing to deal with this ground. Moreover, had the ground been relied upon, evidence might have been called to ascertain whether the appellant had adopted the contents of her initial application for the purposes of her application to the RRT. If she had, so Mr Braham argued, the information would have been given to the RRT 'for the purpose of the application' within the meaning of s 424A(3)(b). 19 In VAF v Minister, Finn and Stone JJ took the view that although s 424A(1)(a) is framed prospectively, compliance with s 424A(1)(a) is to be judged retrospectively in the light of the RRT's actual decision: at [29], applying the reasoning of Allsop J in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, at [94]. Their Honours pointed out that it will often be necessary to evaluate the reasons of the RRT for the purposes of determining whether particular information 'would be the reason, or a part of the reason, for affirming the decision that is under review'. 20 Finn and Stone JJ recognised that the task of the Court, in assessing the reasons of the RRT: 'is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the [RRT] itself considered to be integral'. 21 In the present case, the disparity between the contents of the appellant's initial application for a protection visa and her claims to the RRT was not the only reason for the RRT rejecting the substance of her claims. However, I doubt that the adverse credibility findings can be easily disentangled from the RRT's view that the appellant could have been expected to make her claims in the initial application and, in particular, could have been expected to provide at least some information about the so-called 'Peace Initiative'. 22 I am also inclined to think that the failure of the appellant's representatives to raise any contention based on s 424A(1) of the Migration Act before the Magistrates Court does not constitute a complete answer to any reliance that she might now place on that provision. No doubt the failure to rely on s 424A made it unnecessary for the Minister to consider whether the transcript of the RRT proceedings showed that the appellant had adopted, for the purposes of her RRT application, the contents of the protection visa application. However, it is clear from a comparison of the protection visa application and the appellant's statement attached to her application for review by the RRT, that it was not until the lodgement of that statement that she referred to her alleged involvement with the 'Peace Committee'. In these circumstances, it might be thought unlikely that she would have adopted the contents of her protection visa application when applying to the RRT for review, given the absence of any reference in the initial application to the claim made by her that she feared persecution because of her claimed peace activities. 23 However, I accept Mr Braham's submission that the RRT relied upon an independent ground for concluding that the appellant did not have a well-founded fear of persecution for a Convention reason in her country of citizenship. The RRT found that the appellant could relocate to Government-controlled Cyprus and that she could obtain a passport that would enable her to obtain 'the protection of the true authorities of the country of nationality'. The RRT's finding in no way depended upon any disparity between the contents of the initial protection visa application and the claims made by the appellant to the RRT. As North J said in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, at [33]: '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'. 24 I should add that the RRT relied on country information in order to make the finding that the appellant would be able to obtain a passport and thus secure the protection of her country of nationality. However, by reason of subsection (3)(a), s 424A of the Migration Act does not apply to information of that kind: VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs 131 FCR 80. The fact that the appellant is a citizen of Cyprus appears from her application to the RRT. 25 The appeal must be dismissed. The first and second appellants must pay the Minister's costs of the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.