SZCQA v Minister for Immigration and Citizenship

APPEAL TO FEDERAL MAGISTRATES COURT 6 The appellant, by amended application under s 39B of the Judiciary Act 1903 (Cth), sought to quash the decision of the Tribunal on the ground that the Tribunal 'failed to follow proper procedure under s 418(3) of the Migration Act 1958' and that a breach of the rules of natural justice had occurred. The appellant also alleged that the Tribunal took an irrelevant matter into consideration. 7 The hearing of the appeal came before Emmett FM on 23 February 2006. Her Honour concluded that the Tribunal discharged its statutory obligations; that there was no breach of the rules of natural justice and that there was no other error by the Tribunal as claimed and accordingly the appeal was dismissed.

APPEAL TO THIS COURT 8 By Notice of Appeal filed on 30 March 2006 the appellant appealed to this Court from the decision of Emmett FM. The Notice of Appeal claims that the Tribunal erred in failing to consider all claims and issues put forward by the appellant. The notice seeks a writ of mandamus and an order that the Tribunal re-determine the application according to law. 9 On 18 August 2006 the hearing of this matter was adjourned pending delivery of the decision of the Full Court of this Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] 156 FCR 419 which considered the nature of the Tribunal's obligations under s 424A of the Act. The hearing was again adjourned on 13 February 2007 to 28 May 2007 so that a copy of the transcript of the Tribunal's hearing could be provided to the Court. 10 At the hearing on 28 May 2007 the appellant sought leave to file an Amended Notice of Appeal which claimed as follows: '1. The Refugee Review Tribunal breached s 424A(1) of the Migration Act 1958 (Cth), in that the information provided by the Appellant in his Statutory Declaration sworn 10 February 2003 in support of his protection visa application was not republished to the Tribunal and accordingly that information does not fall within the exception in s. 424A(3).' For the reasons set out hereunder the Court granted leave to the appellant to rely on the Amended Notice of Appeal.

SUBMISSIONS 11 The Minister submits that NBKT determined that for the purposes of s 424A(3)(b) no distinction should be drawn between the circumstance in which an appellant provides information to the Tribunal 'in chief' rather than orally in response to questions asked by a Tribunal member during a hearing before the Tribunal. Accordingly, to satisfy the requirement of s 424A(3)(b) of the Act, it is sufficient for the appellant to provide information orally to the Tribunal, and there is no requirement that such information be provided in writing. 12 The Minister concedes that a mere general affirmation of the correctness of information in a statutory declaration used for the purpose of a protection visa application is insufficient to satisfy the exception provided by s 424A(3)(b) of the Act. However, the Minister relies upon the appellant's acknowledgement that he had typed the statutory declaration, answered questions and was able to provide his understanding of a statutory declaration. The Minister submits that it was thereby adopted by him: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 154 FCR 302 at [49]-[50]. For these reasons the Minister submits that the appellant provided the information in his statutory declaration to the Tribunal and that the exemption provided by s 424A(3)(b) applies to such information: see SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645. 13 The appellant submits that NBKT establishes that if the information relied upon by the Tribunal was communicated by an applicant by way of responses to questions asked by the Tribunal concerning the protection visa application, the exception provided by s 424A(3)(b) of the Act will apply if the nature of the information is uncontentious, foundational or basic. Conversely, the exception in s 424A(3)(b) will not apply if the nature of the information relied upon by the Tribunal is contentious, complex and diverse.

FINDINGS 14 The appellant requires leave to amend his pleadings pursuant to Order 52 Rule 21(3) of the Federal Court Rules. The principles relating to a grant of such leave were considered by the Full Court of this Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 where the Court observed that 'exceptional circumstances' might exist to justify such grant. The Court said at [18]: 'The reference to "exceptional circumstances" indicates that there remains a discretion in the court to entertain a new ground of appeal if it is expedient and in the interests of justice to do so…' 15 The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]. However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, 'exceptional circumstances' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings. 16 Section 424A of the Act relevantly 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 (c) invite the applicant to comment on it. (2) … (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) that is non‑disclosable information.' 17 In SZFXG the Full Court considered whether s 424A(3)(b) of the Act applied in respect of a historical fact, namely the date of the appellant's arrival in Australia, and held that the exception did apply to such technical details. The decision of the Full Court in NBKT adds a further refinement to the principles established by the authorities considered in SZFXG. The Court in NBKT rejected the narrow approach to s 424A and clarifies the circumstances in which the exception provided by s 424A(3)(b) may operate.

Tribunal hearing 18 At the outset of the hearing the Tribunal member said as follows: 'In arriving at my decision, I will consider various sources. I have before me the file from the Department of Immigration, which of course includes your application to DIMIA. I have read your Statutory Declaration and your forms you have filled in, I am also entitled to give regard to independent Country Information, for example reports published by Amnesty International.'

19 During the hearing the following exchange took place between the Tribunal member and the appellant: 'Member: For the record, the applicant was shown the Statutory Declaration at the end of Form B, whereby he agrees that is his signature appearing on that form. So do you agree that all the information you have provided in those forms is true and correct? Applicant: Yes. Member: Now, in support of your application you also provided a Statutory Declaration which was declared on the 10th of February 2003. Applicant: Yes.' 20 Immediately thereafter it became apparent that the appellant did not have a copy of the statutory declaration. However, the following exchange occurred: 'Member: Do you understand what a Statutory Declaration is Mr […]? Applicant: Yes. Member: What is it then? Applicant: Statutory Declaration means whatever happens in my life, I'm compiling into one and I'm explaining everything clearly on that, and I declare that it is true and nothing but true. Member: Alright, so I will confirm with you then. Is all the information contained in your Statutory Declaration true and correct? Applicant: Yes.' 21 There is no evidence that the Tribunal provided any notification to the appellant, in advance of the hearing date, that the statutory declaration would be relied upon. Further, the Tribunal was not invited by the appellant by a written communication before or at the hearing to consider the information in his declaration which would have activated the exemption: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131, SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 and SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611, nor did the appellant bring the statutory declaration to the hearing. These facts suggest that the statutory declaration was not regarded by the appellant as being significant in his application before the Tribunal. 22 The appellant was questioned extensively in relation to the contents of his statutory declaration and in its findings the Tribunal relied on four specific events each of which were material to his claim for refugee status and which were found to be inconsistent with the evidence the appellant gave orally at the hearing. Such events included the appellant's arrest by the police and the charges laid against him; demonstrations which the appellant claimed to have organised; the number of times the appellant had been arrested; and the appellant's alleged imprisonment for a week in Kerala. The Tribunal also relied upon discrepancies between the appellant's statutory declaration and his oral evidence and failures of the appellant to recall exact dates and other details, in making adverse conclusions about the appellant's credibility. These discrepancies relate to an alleged strike in September 2001; allegations of torture by members of the AIADMK party; and an alleged arrest in November 2002. 23 The information contained in the statutory declaration formed part of the reasons for the Tribunal's decision. It was not uncontentious, foundational or basic, nor was it information which was given to the Tribunal by the appellant to enliven the exception under s 424A(3)(b). The fact that the appellant was asked to supplement the information in his statutory declaration orally in answer to the Tribunal's questions and the fact that the appellant referred to the statutory declaration in the course of these answers is not sufficient to constitute 'giving' the document to the Tribunal: see SZFXG; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, which was approved by the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 225 [20] per Moore J, with whom Weinberg J (at 252 [157]) and Allsop J at 262 [219] agreed. Accordingly s 424A(1) of the Act applied to the information the appellant had provided to the Tribunal in answer to its questions. 24 The mere fact that the appellant understood the significance of a statutory declaration and answered the Tribunal's questions is not relevant to the question of republication envisaged by s 424A(3)(b) of the Act. The fact that the appellant did not have his statutory declaration with him at the hearing supports the inference that the appellant did not intend to adopt or republish the claims made therein 25 McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [63] referred to the rationale underlying the statutory requirements of s 424A(1) of the Act in relation to evidence adverse to an appellant provided by a third party. His Honour found that such provision was intended to ensure that an appellant is aware of the significance of such information to the Tribunal's determination. He said: 'So it is in the interests of fairness that the applicant should have the information in writing and should be given an opportunity to comment on it. For that reason s 424A should not be regarded as spent because the applicant is present at the hearing.' 26 In this instance his Honour's observations provide a guide for the interpretation of s 424A of the Act, namely, where the Tribunal intends to rely upon information which is more than historical fact or other basic detail, the appellant is entitled to be given notice that the Tribunal will rely upon such information.

CONCLUSION 27 There is no error in the judgment in Emmett FM. However arising from the Amended Notice of Appeal, the Court finds that the appellant was entitled to receive notice from the Tribunal that it would be relying on the statutory declaration for the purposes of determining his application for review. The Court finds the Tribunal's failure to provide such notification breached s 424A(1) of the Act and accordingly the appeal is upheld. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 29 June 2007 Counsel for the Appellant: T. Baw

Date of Hearing: 18 August 2006, 28 May 2007