SZGIY v Minister for Immigration and Citizenship

Federal Court of Australia (Full Court)|2008-05-02|Before: Edmonds JJ

REASONS FOR JUDGMENT THE COURT: 1 The appellant, who is a citizen of China, entered Australia on 12 March 1997 and, on 4 August 1998, applied for a protection visa, claiming that she feared persecution in China for reason of her political beliefs. On 16 December 1998 a delegate of the first respondent (the "Minister") declined the application. The appellant sought review of that decision in the Refugee Review Tribunal (the "Tribunal"). On 2 July 1999 the Tribunal rejected that application.

NOTICE TO ATTORNEYS GENERAL 2 Notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were, on or about 13 November 2007, sent to the Attorney General of the Commonwealth and to all State and Territory Attorneys General. None has intervened.

THE TRIBUNAL'S DECISION 4 The Tribunal effectively rejected the appellant's evidence as vague and unconvincing and affirmed the delegate's decision.

SUBSEQUENT PROCEDURAL HISTORY 5 Notwithstanding the refusal of her application the appellant remained at large until 2004 when she was taken into immigration detention. On 20 May 2005 she lodged an application to the Federal Magistrates Court (the "2005 application") seeking review of the Tribunal's decision. The matter was listed for final hearing on 13 September 2005 but, on 9 September 2005, the proceedings (the "2005 proceedings") were discontinued. 6 On 19 April 2007 the appellant again applied to the Federal Magistrates Court for review of the Tribunal's decision (the "2007 application"). In that application the appellant asserted that she did not require an extension of time in which to bring proceedings pursuant to s 476 of the Migration Act 1958 (Cth) (the "Migration Act") and that the 2005 application had been "Discontinued by consent". We will refer to the proceedings commenced by the 2007 application as the "2007 proceedings". In a supporting affidavit she said: 1. I am the applicant of the proceeding, I am in immigration detention now. It is highly likely that my lawyer will put an amended application soon. 2. Previously I discontinued my proceeding against the Respondents due to lack of representation. Now I have found counsel who is prepared to review my case pro bono and to appear if appropriate. 3. Federal Magistrates Court constituted more than 84 days after the notice to me of the refusal of my protection claim by Refugee Review Tribunal on 2 July 1999. I did not have any Federal Magistrates Court to go to with my judicial review application within the time limit retrospectively made in the Migration Act 1958, and so the time limit in s 477 has no application to my case. 7 In the Federal Magistrates Court, counsel for the appellant conceded that if s 477 was validly enacted, it barred the proceedings commenced by the 2007 application. However counsel challenged the constitutional validity of its enactment. That question prompted the s 78B notices to which we have referred. However it will not be necessary for us to consider it. 8 On 25 June 2007, in the 2007 proceedings, the appellant filed an amended application for review (the "amended 2007 application"). On that date she also filed a notice of motion (the "2007 motion") seeking an order that the notice of discontinuance in the 2005 proceedings be set aside, that those proceedings be reinstated and that the 2005 application be amended so that it was in the same terms as the amended 2007 application. 9 In a supporting affidavit filed on 25 June 2007 the appellant asserted that: I now know that the RRT handed down its decision on 2 July 1999 in relation to my case.' 10 She then said: 3. I have been shown a letter addressed to me at PO Box 661 Kempsey and dated 2 July 1999. The PO Box 661 in Kempsey belonged to a friend of mine although I also had a key. I do not remember receiving that letter or a copy of the decision of the RRT at that time. 4. I visited a migration agent Priscilla Yu. I remember she told me that the RRT had refused my application and told me that I should write to the Minister asking him to give me a visa. Priscilla Yu prepared a letter to be sent to the Minister for me. I did not read the letter and Ms Yu did not translate the letter for me. I could not read any English at that time. 11 We should interpolate that in her original visa application the appellant had identified her postal address as PO Box 661 Kempsey, New South Wales. However she directed that all correspondence concerning her application be forwarded to her agent Pricilla (sic) International Co Pty Ltd, Suite 101 Dixon House 413-415 Sussex Street, Haymarket, New South Wales. In her affidavit the appellant then asserted that Ms Yu advised her to apply to the Minister rather than to the Court as it would be less expensive. The appellant asserted that thereafter she 'did not know' that she could 'still apply to the Court'. She claimed to be 'scared that I would be sent back to China'.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT 12 The 2007 proceedings and the 2007 motion were heard in the Federal Magistrates Court on 9 July 2007. The 2007 motion was treated as an interlocutory application in the 2005 proceedings. The appellant's attempt to resurrect those proceedings was important given the possible operation of s 477 upon the 2007 proceedings. The Federal Magistrate formally heard submissions concerning the validity of s 477. However he had, in another matter, previously dismissed a similar submission. On that basis his Honour held that the 2007 application was "incompetent". He therefore dismissed it and proceeded to hear the 2007 motion to reinstate the 2005 proceedings and to amend the 2005 application. 13 The Federal Magistrate assumed, without deciding, that he had power to set aside the notice of discontinuance. He considered that in determining whether or not to exercise such power he should take into account 'the interests of the administration of justice in the circumstances shown in the evidence'. Relevant considerations were the adequacy of the appellant's explanation of her delay in seeking judicial review in 2005 and of the further delay from 2005 to 2007 in seeking reinstatement of the 2005 application, and her prospects of success "on the merits" in having the Tribunal's decision set aside. The Federal Magistrate concluded that although there was some prospect that the application might succeed, the delay had not been satisfactorily explained. In those circumstances, the 2007 motion was dismissed.

THE APPEAL 14 At one stage the Minister made a concession concerning the application of s 424A of the Migration Act in the circumstances of this case, which concession was subsequently withdrawn. Counsel for the appellant conceded that if the s 424A question were decided in a way which was unfavourable to the appellant, the appeal must fail. In those circumstances, it is convenient that we deal only with that question. 15 Section 424A relevantly provided: (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; … (3) This section does not apply to information: … (b) that the applicant gave for the purpose of the application;… … 16 For present purposes, the first question is whether, subject to s 424A(3)(b), any information satisfied the requirements of s 424A(1)(a) so that the prescribed particulars had to be given to the appellant. The second question is whether such information fell within s 424A(3)(b). 17 The relevant "information" was particularized in the notice of appeal as follows: The Tribunal did not provide written notice to the [appellant] that it considered that the fact that the [appellant] did not apply for refugee status until August 1998, some 15 months after her arrival in Australia, would be the reason or part of the reason for affirming the decision under review. 18 Relevantly for present purposes, the Tribunal observed in its reasons: I note that the [appellant] arrived in Australia in March 1997 but did not apply for refugee status until August 1998, some 15 months after her arrival. I have considered her explanation, given at hearing, that she was hoping things would be resolved, until she heard about the jail sentence. However, I am not satisfied with this explanation. Had she really been concerned about the Chinese authorities seeking her, I consider that she would have submitted a claim for protection much earlier. 19 In her application to the Tribunal the appellant had asserted that: A.1 I lodged my application for a Protection visa on 4 August 1998, because I believe to be a person to whom Australia has protection obligation under UN Refugee Convention. A.2 I do not agree the refusal decision on my application, because I do not think that my application has been fairly and carefully assessed, and I therefore seek a review by the Refugee Review Tribunal. … C.4 I do not think that the decision maker has really understood the whole story of my claims for a protection visa. I even doubt whether or not the decision maker has carefully and fairly read my application. Obviously, based on my claims, I must have a well founded fear of persecution on my return. 20 In her visa application the appellant claimed to have entered Australia on 12 March 1997. We did not understand the appellant to dispute that the references to "application" in her application to the Tribunal were to her visa application. That document was included in the Court book. We have referred to it. 21 During the Tribunal hearing, the following exchange occurred: MEMBER: Okay. Your documentation says that you came to Australia in - March of 1997. INTERPRETER: Correct. MEMBER: But you didn't apply for refugee status until August 1998. Which is about sixteen or seventeen months after you arrived in Australia. So why did you wait so long? INTERPRETER: Because at the beginning I was hoping that everything will be resolved but later I heard that some were sentenced to jail, so I believed if I went back to China I would be sentenced to jail as well. 22 The issues on appeal are: · whether the appellant's date of arrival in Australia was information for the purposes of s 424A(1); · if so, whether such information fell within s 424A(3)(b); · whether the date of the appellant's application for a protection visa was information for the purposes of s 424A(1); · if so, whether such information fell within s 424A(3)(b); and · whether the "composite information" particularised in the notice of appeal (the delay between arrival and application) was information for the purposes of s 424A(1)(a).

Date of arrival 23 The appellant's counsel accepted that the date of the appellant's arrival in Australia was, itself, neutral. As such, it would not engage s 424A(1). It did not, in terms, reject, deny or undermine the appellant's claim to be a person to whom Australia owed protection obligations. See SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]. It was therefore not information which could be the reason, or part of the reason, for affirming the delegate's decision. 24 In any event, we consider that, for the purposes of s 424A(3)(b), the appellant gave the Tribunal the relevant information concerning her date of arrival. That date was stated in her visa application to which she expressly referred in her application to the Tribunal. In the latter application she claimed that the delegate had not read the visa application carefully. The Tribunal's duty was to consider her application on its merits. Whilst she set out certain aspects of her claim in her application to the Tribunal, any reasonable reader would have understood that the appellant was inviting detailed attention to her visa application. Further, when asked by the Tribunal, the appellant agreed that her documentation showed that she had come to Australia in March 1997. Whilst it is possible to argue that she merely agreed that her documents showed as much, her failure to disavow the correctness of such information was a proper basis for inferring that she accepted it as correct. There is some controversy as to the circumstances in which information, provided orally by an applicant at a Tribunal hearing, is given by that applicant for the purposes of s 424A(3)(b). For present purposes we consider that the decision of the Full Court in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 compels the conclusion that the appellant relevantly gave such information. See NBKT at [50]-[62].

Date of visa application 25 In our view this date was not relevantly information simply because it was "neutral" in the sense in which we have previously used that word. In any event the appellant gave this information to the Tribunal in her application for review. It was, therefore, within the exception contained in s 424A(3)(b).

Deduction from facts not information 26 The appellant submitted that an inference or deduction based upon the two dates was, itself, distinct information to which s 424A(1) applied. The particulars in the notice of appeal, to which we have referred above, suggest that the relevant inference or deduction was the length of time between the appellant's arrival in Australia and her visa application. The Tribunal considered that the appellant's delay in making the visa application cast doubt upon the validity of her claims. 27 The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of s 424A(1) does not fit easily into the structure of s 424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review. That process must necessarily reflect the prescribed criteria which were relevant in making the original decision. In the present case, the primary question was whether the appellant was a person to whom Australia owed protection obligations. The dates, taken in isolation, said nothing about whether the appellant was such a person. Taken together, they demonstrated that she had made the visa application almost seventeen months after her arrival in Australia. That fact, which was the product of arithmetical calculation, taken in isolation, also said nothing about Australia's obligations to her. However it was open to the Tribunal to consider the appellant's conduct and whether it was consistent with her claims. Unexplained delay in applying for a protection visa might well be inconsistent with her claim to fear persecution in China. The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of s 424A(1). 28 In SZBYR at [18] the majority of the High Court observed: Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information" does not encompass the tribunal's subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 29 The two facts (the dates of the appellant's arrival in Australia and of her visa application) and the inference or deduction therefrom (the period of time between them) were all neutral. In any event the two dates were supplied to the Tribunal by the appellant. The period of delay was merely another way of expressing the temporal relationship between those two dates. The treatment of the delay as an inconsistency was part of the reasoning process leading to the rejection of the appellant's evidence. It was, for the purposes of s 424A, no different from any other inconsistency in her account or in her conduct. 30 The Tribunal invited the appellant to explain the delay. She acknowledged it and offered an explanation, apparently understanding that it was in her interests so to do. The appellant submitted that if the Tribunal felt it necessary to invite an explanation, then s 424A(1) must apply. That submission has no merit. The Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s 424A has no application.

CONCLUSION 31 There was no failure to comply with the requirements of s 424A. It was agreed that, if this issue were resolved against the appellant, there was no further issue to be determined in the appeal.

ORDERS 32 The appeal must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Bennett and Edmonds.

Counsel for the Appellant: Mr SEJ Prince

Counsel for the First Respondent: Mr CR Kennett

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr CR Kennett

Solicitor for the Second Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 424A, 476, 477

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