SZDPY v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate given on 24 January 2006 dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"): see SZDPY v Minister for Immigration and Multicultural Affairs and Indigenous [2006] FMCA 10. The Tribunal affirmed the decision of the respondent's delegate to refuse the appellant a protection visa (class XA). 2 According to the Tribunal, the appellant is a citizen of India and from a Hindu family. His parents are participants in religious activities and supporters of a Hindu political party. The appellant arrived in Australia on 8 December 1998. While in Australia the appellant converted to Islam. On 15 March 2001 the appellant applied for a protection visa claiming to have a well-founded fear of persecution if he returned to India for reasons of religion. 3 In his protection visa application, the appellant gave details of his education and work history. Information as to his education took the form of a list of the institutions he had attended and the dates of his attendance. The institutions listed were the appellant's high school, the National Institute of Sales and Marketing in Delhi and the Sydney International College of Business. He also listed his employers, dates of employment and salaries. 4 A delegate of the respondent refused to grant a protection visa on 9 April 2001. On 31 March 2003 the Tribunal affirmed the decision of the delegate. 5 The Tribunal identified three aspects of the appellant's claimed fear of persecution: (i) fear of persecution by Hindus and Hindu organisations because of his identity as a Muslim; (ii) fear of persecution by Hindus and Hindu organisations because of his conversion to Islam; and (iii) fear of persecution by relatives or people who know him in Delhi because of his conversion to Islam. The first aspect was dismissed by the Tribunal after consideration of the relevant country information. 6 The Tribunal then considered how the appellant's status as a Muslim who had converted from Hinduism affected his claim for fear of persecution. Specifically the Tribunal took into account the appellant's individual circumstances, as he came from a practicing Hindu family with ties to Hindu organisations and had certain relatives he considered "extremist". The Tribunal found that the appellant might be ostracised by his family and they might press him to undo his conversion. However, the Tribunal concluded that this would not constitute serious harm for the purposes of s 91R of the Migration Act 1958 (the Act). 7 In addition, the Tribunal found that the appellant could avoid the harm he claimed to fear from relatives and others who knew him in Delhi by relocating either within Delhi or elsewhere within India. In finding that he could relocate, the Tribunal said "I consider that it would be reasonable for the applicant to relocate having regard to his circumstances: he is well-educated and has demonstrated sufficient personal resourcefulness to enable him to settle here." The Tribunal was not satisfied that there was a real chance that the appellant would face persecution by reason of his adoption of Islam and found that his fear in that regard was not well-founded. Consequently, the Tribunal concluded that the appellant was not a person to whom Australia has protection obligations under the Refugee Convention. 8 In May 2003 the appellant filed an application for review of the Tribunal's decision in the South Australian Registry of this Court. On 11 December 2003 the appellant filed a notice of discontinuance. On 12 December 2003 Mansfield J granted leave to discontinue that proceeding. 9 On 24 May 2004 the appellant filed an application in the New South Wales Registry of the Federal Magistrates Court seeking judicial review of the Tribunal's decision. The matter was subsequently transferred to this Registry. The Federal Magistrate dismissed the application. The appellant appeals from his Honour's judgment. 10 Before the Federal Magistrate, the appellant's primary argument was that the Tribunal, by considering the possibility of relocation and concealing his whereabouts from relatives, was requiring him to avoid harm by acting discreetly in the practise of his religion. The appellant argued this was an error of law as identified by the High Court in S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. 11 The Federal Magistrate found that the Tribunal's decision was not based on a finding that the appellant would be required to modify his behaviour. Rather, his Honour held that the Tribunal had determined that wherever the appellant chose to live in India he could continue the normal practice of his religion without fear of persecution. Also, the Federal Magistrate concluded that the Tribunal's finding about relocation was an alternate ground relating to the appellant's fear of coming to serious harm on account of his conversion. On this view, the Tribunal had independently concluded that the appellant's fears of persecution relating to his conversion were not well-founded. The Federal Magistrate concluded that while "[i]t may be possible to interpret the Tribunal's question [that he could move and not tell his relatives] as involving the proposition that the appellant could modify his behaviour, it was not the basis of the tribunal's findings in its reasons". 12 The first respondent also argued before the Federal Magistrate that the appeal was barred by Anshun estoppel. Having found on other grounds that the appeal should be dismissed, the Federal Magistrate did not need to consider this ground. 13 In a notice of appeal dated 21 February 2006 the appellant submitted two grounds of appeal. The first ground challenged the Federal Magistrate's finding that Tribunal's decision did not necessitate any change of behaviour by the appellant in the normal practice of his new religion, particularly, "in circumstances where the change in location would require the appellant to be discreet in terms of his religious and family history". The second ground of appeal was that the Federal Magistrate erred in finding that the relocation finding was not the primary basis of the Tribunal's decision. At the hearing of the appeal, counsel for the appellant abandoned both these grounds of appeal and relied instead on a new ground set out in an amended notice of appeal filed on 18 May 2006. 14 This new ground was that the Tribunal breached s 424A of the Act. The appellant now claims that the Tribunal erred when it "did not disclose certain adverse information as required by s 424A(1)" and that this information was … "[t]he educational history of the [appellant] provided in his application for a protection visa". SUBMISSIONS 15 I commence by noting that both the appellant and the first respondent asked the Court to have regard to the transcript of the hearing before the Tribunal. 16 The appellant submitted that a breach of s 424A is jurisdictional error whenever the Tribunal fails to disclose information that forms part of its reasons. Citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ("SZEEU") at [158] per Weinberg J and [225] per Allsop J, the appellant argued that there is error even where the information concerned only a minor and subsidiary part of the reasons. 17 The appellant argued that the education information provided in the original protection visa application was not subject to the exception in s 424(3)(b) of the Act. Moreover, the appellant submitted that the mere adoption at the hearing of any information contained in the visa application would not bring that information within the s 424(3)(b) exception. 18 At the hearing, the appellant conceded that, at the hearing before the Tribunal, he had done more than simply adopt information concerning his educational experiences in Australia. This was because, in response to the Tribunal's questioning, the appellant had actively given details of his education in Australia. However, the appellant distinguished information about his education in India from that about his education in this country. In the appellant's submission, in relation to his Indian education, he did no more than adopt the information provided earlier in his protection visa application. The appellant noted that his answers regarding his education in India were in response to leading questions from the Tribunal where, in effect, he was asked to do no more than confirm the details in his original application in March 2001. Further, the appellant noted that the Tribunal had not told him of the potential significance of this information for its decision-making. In this connection, he referred to Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry") at [40]-[41] per Merkel J. 19 The appellant relied on SZEEU at [17] and [20] per Moore J and NAZY v MIMIA [2005] FCA 744 at [37] per Jacobson J for the proposition that information does not fall within the exception of s 424A(3)(b) unless it is put forward as evidence in chief and the applicant is aware of the significance of the information. Thus, in the appellant's view, his brief responses to leading questions regarding his education in India did not mean this was information given for the purpose of the application for review under s 424A(3)(b). 20 The appellant contended that the Tribunal relied on his educational history as a basis for its finding concerning the reasonableness of his relocation. The appellant submitted that the relocation finding was "an over arching basis of the decision". Therefore, according to the appellant, the Tribunal fell into error when it did not provide the educational history information to him as required by s 424A(1). 21 In support of his application to amend his notice of appeal the appellant noted that SZEEU had not been delivered at the time of the hearing before the Federal Magistrate. The appellant suggested that it is unlikely that any further evidence would have been led below if the new ground had been argued there. Moreover, the appellant suggested that any prejudice to the first respondent could be cured by allowing her to tender a transcript of the Tribunal hearing. 22 The first respondent submitted that the Court should not grant leave to amend the notice of appeal. The first respondent noted that although SZEEU had not been decided at the time of the hearing before the Federal Magistrate, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Al Shamry had been decided at that time. Further, the first respondent argued that leave to amend should be refused because the new ground of appeal was futile. 23 The first respondent did not concede that the relevant Tribunal finding concerning relocation was based on the information provided under the heading "Education" in the appellant's visa application. The first respondent argued that the appellant had given more detail about his educational background at the hearing before the Tribunal than he had in his original application. For example, it was only at the hearing that he said that he had completed his business studies at the Sydney International College. Similarly, he explained to the Tribunal that the National Institute of Sales and Marketing was more like a college than a school. In these circumstances, the first respondent contended that the appellant had given the information to the Tribunal and s 424A(3)(b) applied. 24 The first respondent rejected the suggestion that a distinction could be drawn between information given in response to leading and non-leading questioning. The first respondent noted that the educational information in the application was very brief. The appellant had simply listed institutions and dates of attendance. Thus, it was possible to give this information to the Tribunal in response to simple leading questions. 25 The first respondent contrasted this case to the facts of SZEEU. In SZEEU, the Court had considered the case of SZBMI who, in an airport interview upon arrival, had provided information concerning his flight from his home country. Before the Tribunal, he had affirmed that this statement was accurate. The Court, at [20] per Moore J and [157] per Weinberg J, held that the adoption of the earlier statement at the hearing before the Tribunal did not render it information provided by him in his application for review. The first respondent argued that this case is different because, rather than adopting a large statement in which a specific item of information was contained, the appellant had specifically discussed his educational background with the Tribunal. According to the first respondent, it followed that the information fell within the exception of s 424A(3)(b). 26 Although it was discussed before the Federal Magistrate, neither party raised the issue of Anshun estoppel in this Court. Consideration 27 The proposed ground of appeal raised a basis for a claim of jurisdictional error on the Tribunal's part that was not argued before the Federal Magistrate. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 ("VAAC") at 177 [26] per North, Merkel and Weinberg JJ. In this case, whether or not leave ought be granted depends very largely on the prospects of success of the proposed new ground. Since I could form no view on the prospects of success without hearing argument, I heard counsel for the applicant and the first respondent on the proposed new ground, without ruling on the application for leave. The first respondent's counsel did not oppose this course. 28 Section 424A of the Act requires the Tribunal to give the applicant, in the way the Tribunal considers appropriate, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it: s 424A(1). The information and invitation must be given by a prescribed method: s 424A(2). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant and is just about a class of persons, or information that the applicant gave for the purpose of the application, or non-disclosable information: s 424A(3). 29 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J. I accept that the Tribunal's knowledge of the educational institutions and dates of attendance and employment history set out in the appellant's visa application (referred to below as educational information) could constitute knowledge of relevant facts or circumstances communicated to or received by the Tribunal and therefore 'information' for the purposes of s 424A of the Act. It was not suggested that the Tribunal had given the applicant particulars of such information as s 424A(1) would require if it applied. 30 SZEEU contains various discussions of the expression "a part of the reason" in s 424A: see [164] per Weinberg J and [216]-[217] per Allsop J. As Allsop J said at [216], "[i]t is only necessary that the information be a part of the reason". In this case, however, the appellant has not established that the educational information set out in his visa application was "a part of the reason" for the Tribunal's decision, because other detailed information on the same subject was specifically provided to the Tribunal at the Tribunal hearing. The information given at the Tribunal hearing fell within the exclusion in s 424A(3)(b) of the Act. 31 For present purposes, I accept that the Tribunal's finding that it was reasonable for the appellant to relocate because he "is well educated and has demonstrated sufficient personal resourcefulness to enable him to settle here" was a part of the reason for the Tribunal's decision. However, consideration of the transcript of the hearing before the Tribunal makes it clear that the appellant specifically gave his educational and employment history to the Tribunal at that hearing. 32 At the hearing before the Tribunal, the Tribunal member asked questions regarding the appellant's educational and employment history. In response to the question "You came as a student did you?" the appellant explained that he had been studying business management at Sydney International College and that he had completed his studies there. He was then asked what he was studying at the time of the hearing. The appellant answered that he was studying commercial cookery at the Australian College of Hospitality. 33 Upon the basis of the information appearing in his protection visa application, the Tribunal member also asked him about his employment in India. For example, she asked, "because in your application it says that from September '96 to August '97 you worked as a sales executive for SR Traders, is that right?" The appellant affirmed that it was. 34 Later, the Tribunal member and the appellant discussed the appellant's schooling in India. The appellant confirmed, in response to a direct question on the matter, that he had attended high school and had graduated in 1996. He also confirmed that he had attended the National Institute of Sales and Marketing for one and a half years. The appellant explained that the institute was like a college. 35 It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant's submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of 'cross-examination'. The Tribunal's questions were specific and arose, naturally enough, from the appellant's visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant's visa application in discussing some aspects of his history with him. 36 I reject the appellant's submission that at the Tribunal hearing he merely adopted the education information in his visa application. This was not a case where an applicant merely adopted the contents of a document as a whole and in so doing was said to have conceded the correctness of items of information within it: contrast SZEEU at [15] and [17] per Moore J. It may be recalled that in SZEEU the Full Court held that the applicant's global adoption of an earlier statement (which contained the 'flight information') did not bring the flight information before the Tribunal for the purposes of s 424A(3)(b) of the Act. The present case is entirely different from the 'flight information' in SZEEU. It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal. It was open to the Tribunal on the basis of this information, which clearly fell within s 424A(3)(b), to find that the appellant was well-educated and resourceful so as to make relocation reasonable. Accordingly, the appellant's proposed new ground, which asserts breach of s 424A(1) of the Act, is untenable. 37 I would refuse leave to amend the notice of appeal and, since the appellant advanced no other ground that requires consideration, I would dismiss the appeal instanter. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.