SZHUP v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant entered Australia on 4 October 2004 on a business visa. On 16 November 2004 he lodged an application for a protection (class XA) visa. On 2 August 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application. The appellant lodged an application for review by the Refugee Review Tribunal ('the RRT') on 28 August 2005. On 24 November 2005 the RRT handed down its decision affirming the decision of the delegate to refuse to grant a protection visa. 2 On 12 December 2005 the appellant lodged an application for judicial review in the Federal Magistrates Court. That application was dismissed with costs by Lindsay FM on 11 September 2006. An appeal to this Court was lodged on 25 September 2006. 3 The appellant's written submissions before me are a confusing mix of generalised assertions that jurisdictional error has been committed by the RRT. Most reduce themselves to an allegation of lack of procedural fairness but they are garnished with a sprinkling of allegations to the effect that the RRT rejected the appellant's claims without paying regard to his oral evidence, was preoccupied, acted illogically and relied on information from secondary and fallacious sources. No detail is provided to support the allegations. 4 The Notice of Appeal is shorter but equally unhelpful. It suggests, directly or by inference, bad faith and prejudice on the part of the RRT, failure to reveal information the RRT proposed to rely upon and that the appellant was misled by the RRT. No particulars or specific examples are provided. 5 Lindsay FM also observed that the submissions to him were 'put forward in a somewhat formulaic fashion'. 6 I have read the decision of the RRT to see whether, despite Lindsay FM's consideration of the appellant's arguments on the earlier occasion, there is some reason to suspect jurisdictional error. At the hearing, when the appellant gave oral evidence, the RRT read to the appellant a summary of his claims, prepared by the RRT, which the appellant is recorded as accepting as 'a fair summary of his situation and claims'. 7 The summary is as follows: 'You are a Muslim businessman from Adirampattinam, in Tamil Nadu. You lived there between January 1994 and May 2004, when you went to Thailand. You had your own business between 1998 and 2004. You used to contribute to the local Hindu Temple, but when they asked you to pay more frequently, you refused and were attacked by Hindu fanatics, who also burnt your shop. Police reluctantly agreed to investigate the attack on you, but when you also reported the burning of your shop they refused to help you and threatened that they would charge you with an offence. The doctor who wrote a report for you was threatened and he asked you to return the report to him. Soon afterwards, a group of citizens and police came to your house and told you to move away. Someone stabbed you but the police did nothing. You could not get treatment locally, so you went to another town. Then you went to Delhi, but not long afterwards, Hindus in Delhi came to know of what happened in Tamil Nadu, and you were forced to leave there. You went to Madras, where someone you knew arranged for you to go to Thailand to work for him. You returned to India on business a few times. Then someone threatened your friend and forced him to make you leave. Someone else you met arranged for you to come to Australia. Hindu fanatics are still looking for you in India.' 8 There follows an extensive account of questions posed by the RRT and answers given by the appellant. It is not necessary to recount the detail. 9 The decision of the RRT to affirm the decision of the delegate to refuse a protection visa was based on findings of fact. The findings of fact involved conclusions adverse to the credit of the appellant. They were made in circumstances where the RRT appeared to appreciate the necessity to make an adverse finding on a material issue only if confident about the finding. 10 The RRT commenced its Findings and Reasons with the following: 'The applicant claims to fear persecution in India at the hands of Hindu groups such as the RSS. He claims their enmity originated because of his Muslim religion but has continued because, when they attacked him for refusing to pay increased contributions towards a Hindu temple, he fought back and, in particular, bit one of them on the ear. He claims they are looking for him all over India, and tried to pressure his boss in Thailand to return him to India. When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his or her claims. However, it is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA. If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) FCR 220). 11 These passages indicate that the RRT was aware of the way in which the applicant's claims should be assessed in the event that the appellant's claims were unconvincing. In particular, the RRT accepted that unless it could, with confidence, find adversely to a material claim made by the appellant it should 'proceed to assess the claim on the basis that the claim might possibly be true'. 12 The RRT then made the following findings and observations: '(a) In this case, there are significant inconsistencies between the applicant's oral evidence and his written claims, and within his oral evidence. (Examples were given.) (b) The Tribunal accepts that the applicant has a scar near his navel. However, that scar could have resulted in a variety of ways, including a simple surgical operation. The applicant said that he had "plastic surgery" on the site after the alleged stabbing. Whatever the cause, the Tribunal accepts that the applicant has had an operation on a site close to his navel. His oral evidence was that such an operation was as a consequence of the stabbing… (c) The applicant claims that, in order to elude those who sought to harm him, he went to Thailand. He claimed that a friend gave him a job there and he only returned to India to report to his boss and, on those occasions, stayed only one or two weeks to report to his boss and remained in a hotel room the entire time. In his oral evidence, he said he did this "once or twice" and, in his written statement he said "2, 3 times." … (d) … the Tribunal finds that the applicant was not being pursued by radical Hindu groups such as the RSS and the Hindu Munnani Organisation. The Tribunal finds that he was not assaulted by such people in March or April 2002, and that any operation he had was not as a consequence of any such attack. (e) The Tribunal finds that the applicant did not lose a job (if he ever had one) in Thailand because Hindu fanatics found out he was in Thailand and pressured his boss to fire him. (The RR earlier noted that each of the appellant's visas permitting entry to Thailand were marked "employment prohibited") (f) The Tribunal finds that the applicants returns to India were voluntary. From that, the Tribunal infers hat he was not in fear of persecution on any of the occasions when he returned to India. As he has made no claims of any incident after March 2002 which would have caused Hindu fanatic groups to wish to single him out, the Tribunal finds that he does not have a fear of persecution in India.' 13 The RRT stated the following conclusion: 'Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.' 14 As the assessment of the appellant's claims for a visa was a matter for the RRT under the scheme established by the Migration Act 1958 (Cth) ('the Act'), and is not a matter for this Court, cogent reasons would be necessary to disturb the RRT's findings or set them aside for jurisdictional error. 15 At the hearing of the appeal the appellant's oral submissions, through an interpreter, did not address any jurisdictional question or alleged error in the judgment of Lindsay FM. However, the appellant sought to tender two documents. The first purported to be a medical certificate alleging a reason for the death of the appellant's brother who died, apparently, on 22 February 2006, after the decision of the RRT. Lindsay FM records in his judgment that material related to the appellant's brother's death is irrelevant to an examination of jurisdictional error on the part of the RRT. I agree. I declined to receive the 'medical certificate' in evidence. The second document was a letter from India, which, it was said, would assist in rebutting a conclusion by the RRT that a certain letter before it, purporting to be from a mosque, should be given little weight. I declined to receive the second document also as, in my view, it was not capable of bearing upon any consideration of jurisdictional error. 16 In her submissions for the first respondent Ms Allars pointed out that the only ground of appeal capable of being referred to a cogent proposition of jurisdictional error by the RRT (even though lacking specificity) was as follows: 'My point is that despite having attended the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such in information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.' 17 She correctly said that the only matter on the face of the RRT's decision in respect of which such a question could arise was the use made by the RRT of information in the appellant's passport. She submitted, however, that the question was correctly, and in accordance with authority, decided against the appellant by Lindsay FM. 18 Before Lindsay FM there was a complaint by the appellant that the RRT had relied upon an analysis of the contents of his passport to make the findings I set out earlier about his visit to Thailand and the length of times he lived in India. The passport was provided by the appellant to the RRT at the hearing. 19 Lindsay FM followed Full Court authority in this Court in concluding that, by virtue of s 424A(3)(b) of the Act there was no obligation on the RRT to alert the appellant to the fact it might use what appeared in his passport in making a decision (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27). 20 This matter was not specifically referred to in the Notice of Appeal or written or oral submissions before this Court. However, it deserves some attention. Section 424A 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) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (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.' 21 It is appropriate that I set out the whole of the passage in which the RRT discusses the significance of entries in the passport. It is a part of the decision that follows the account of the hearing itself and it is clear that the analysis, which is revealed by this part of the decision, occurred after the hearing had concluded. The passage reads: 'Travel details At the hearing, the applicant submitted his passport for copying by the Tribunal. The passport was issued in Tiruchirappally in April 2001. After the hearing the Tribunal analysed the entries in the passport. Not all the entries in the passport are clear, and it appears that some records of entries or exits may have been omitted or covered by subsequent visas. However, from the entries which are evident, the Tribunal has deduced that the applicant entered Thailand six or seven times, and returned to India on five occasions. He left India on or about 12 November 2002 (no exit stamp obvious), and entered Thailand the following day. His visa stated "employment prohibited." He left Thailand and entered Singapore on 20 November on a visa which also prohibited employment, and stayed there for two days, before returning to India on 22 November. He entered Thailand again on 23 January 2003, so presumably left India on either 22 or 23 January (again no exit stamp is obvious). His visa for this entry also stated "employment prohibited." He left Thailand and returned to India on 5 February 2003. He entered Thailand a third time on 3 August 2003, so presumably left India on 2 or 3 August. His visa for this entry also stated "employment prohibited." He returned to India on 10 August 2003. The applicant left India for the fourth time on 27 September 2003 and arrived in Thailand the following day. His visa for this fourth entry to Thailand also stated "employment prohibited." He left Thailand on 11 October, and travelled to Singapore (his visa prohibited employment) before returning to India on 14 October. On 23 February 2004, the applicant obtained a further Thai visa from the Thai Embassy in New Delhi and, three days later, obtained a further Singapore visa from the Singapore Consulate in Chennai (Madras). Again, both visas prohibited employment. He left India on 12 March, and entered Thailand the following day. He returned to India on 11 April. He again obtained a Thai visa ("employment prohibited") from the Thai Embassy inNew Delhi on 27 April 2004. It is not clear when he used that visa, but there is an entry dated 30 June 2004, which indicates that a further application to remain in Thailand was refused and that he was required to leave Thailand (the entry says "the Kingdom") by 7 July. He obviously did so, as he re-entered the country on 2 July with a visa valid until 29 September 2004. Having arrived inThailand on this last occasion (no employment restriction is evident), he obtained an Australian business visa on 17 August 2004, he sought anextension of his Thai visa, but this was refused on 29 September, and he was given until 6 October to "leave the Kingdom". He did so on 3 October, and travelled to Australia. In summary, his longest stay in Thailand, his last, was three months. His first five visits were of seven, thirteen, seven, thirteen and twenty-nine days respectively. It is not possible to determine the duration of the sixth visit to Thailand, but it could have been no more than sixty six days. After his first departure from India, the applicant returned there for periods ranging between one and six months or so.' 22 Earlier in this judgment I extracted, for a more general purpose, the part of the 'Findings and Reasons' of the RRT which deals with the significance of these issues. However, it is appropriate to set it out again. It reads: 'The applicant claims that, in order to elude those who sought to harm him, he went to Thailand. He claimed that a friend gave him a job there and he only returned to India to report to his boss and, on those occasions, stayed only one or two weeks to report to his boss and remained in a hotel room the entire time. In his oral evidence, he said he did this "once or twice" and, in his written statement he said "2, 3 times. The overall impression given by the applicant's evidence, both written and oral, was that, in the period of two years after he first left India in October 2002, he worked in Thailand and returned for extremely brief visits to India. However, the evidence of his passport, submitted at the hearing is diametrically opposed to that. 23 It may be seen that the passport and visa information was an important part of the RRT's decision. Section 424A(1), is engaged with respect to information that is a part of the reasons for deciding the application adversely to the appellant. Ms Allars argued two bases for concluding that the information was not required to be given to the appellant pursuant to s 424A. One was that the RRT did not use the information as a part of its reasons. Rather, in her submission, the passages extracted in paras 21 and 22 above were part of a subjective appraisal or thought process. 24 The law as to what constitutes 'information' for the purposes of s 424A has recently been addressed by a Full Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195. Young J (with whom Gyles and Stone JJ agreed) said: 'The meaning of 'information' was considered in the context of s 424A(1) by Allsop J in SZEEU at 259-260 [204]-[205]: 'The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision. Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].' In contrast with the above, the Tribunal's subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs(2001) 113 FCR 396 ('Paul') at 428 [95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 206 ALR 471 ('VAF') at 476-477 [24] per Finn and Stone JJ. The concept of information does not 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: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 124 FCR 276 at 282 [26]-[27]. The distinction between 'information' that is part of the Tribunal's reason on one hand, and 'subjective appraisals', 'thought processes' and 'determinations' of the Tribunal on the other hand, may be plain in some cases, but in other cases it may prove to be very fine, if not elusive: Paulat 428 [95]; VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 [36] ('VWFP'). It is not necessary that the information is integral to the Tribunal's reasoning process; s 424A(1) is enlivened even if the information forms only a minor or subsidiary part of the Tribunal's reason for affirming the decision under review: SZEEU at 252 [158] per Weinberg J and at 262 [215] per Allsop J; and SAAPat 179-180 [68] and 184-185 [83] per McHugh J, 203 [173] per Kirby J and 211 [208] per Hayne J.' 25 In my view the information in the passport and the visas is information which stands apart from the reasoning process of the RRT. It was information upon which the appraisal and thought processes operated but this does not mean that the objective material, or information, is subsumed in the subjective appraisal, thought process or determination. In my view the information in question fell clearly within s 424A unless within the exemption in s 424A(3)(b). 26 Ms Allars' second proposition was that it was within the exemption. Lindsay FM concluded that it was when a similar issue was raised before him. There are a number of aspects to be considered. 27 First, doing the best I can with the RRT's description of how the passport came under examination, it appears it was provided at the request of the RRT to be copied. The letter inviting the appellant to a hearing contained the following: '• If you have a passport you should bring it to the hearing.' 28 Of course, he was under no obligation to attend the hearing, and probably not under any obligation to bring or produce his passport but the question remains: if, having brought it with him, he is simply asked to produce it so the RRT can take a copy, is it information given by him for the purpose of his application for review? 29 In M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 Gray J considered the use by the RRT of visa information in a passport. He said: 'To the extent to which the federal magistrate took the view that provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s 424A(1), her Honour was therefore in error. Her Honour was wrong in holding that the provision of the passport for the purposes of the protection visa application must be taken to have been also for the purposes of his application to the Tribunal. That is the not the end of the matter. 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). The Tribunal was under no obligation to explain to the appellant how it proposed to use the information derived from the passport. In any event, it did canvass with him the crucial issue, which was how the appellant managed to renew his passport at a time when he was, according to his account, in hiding. It also canvassed with him the fact that he had managed to leave Sri Lanka lawfully, through the airport, at a time when he claimed that he was wanted by the authorities. The Tribunal did not contravene s 424A by relying on the information it derived from the appellant's copy passport. Nor did it deny him procedural fairness in relation to that information, or in relation to any issue on which it found against the appellant on the basis of that information.' (emphasis added) 30 The present case is not one where specific reliance, in representations to the RRT, was made on the contents of the application for the protection visa, including a copy of the passport. The material was not advanced directly or indirectly by the appellant in the written statement he made to the RRT. It appears to have been before the RRT solely at its request. 31 That factual distinction may not have legal significance however. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 five cases concerned with the application of s 424A were considered by a Full Court. One of these cases - Appellant SZEEZ - involved consideration of visa information in a passport. The visa information was one of five, or possibly six, pieces of information suggested to fall within the requirements of s 424A. Two members of the Court (Moore, J dissenting) were agreed that certain material in the application for a protection visa was required to be given to the appellant under s 424A and was not exempted by s 424A(3)(b). This was enough to establish jurisdictional error. It was not necessary, therefore to decide whether the visa information in question fell within s 424A(3)(b) or not. 32 Moore J, however, as part of his analysis concluding that none of the information in question was required to be provided under s 424A, dealt with the visa information in the passport, concluding it had been given to the Tribunal by the applicant at the hearing. He said: 'The submission of the Minister in relation to PRC visa information was partly dependent on the tender, in this appeal, of a copy of a page of the appellant's passport. Ultimately, the tender was not opposed and leave should be given to tender a copy of the relevant page of the passport into evidence. The Minister submitted that it can be inferred that the appellant was asked by the Tribunal to bring his passport to the hearing (having regard to a letter sent to the appellant on 25 May 2004 making that request) and the appellant did so (because the Tribunal mentions in its reasons having seen the passport at the beginning of the hearing). Accordingly, it was submitted, the information (that the appellant had a visa to enter the PRC) was not information derived by the Tribunal from the original application for a protection visa but rather information known to the Tribunal because it sighted the passport at the hearing. The submission of the Minister should be accepted. While no analogue of the best evidence rule operates in the Tribunal, plainly the primary source of its knowledge that the appellant had a visa to enter the PRC arose because it saw the visa in the appellant's passport. Accordingly, it constituted information provided by the appellant for the purpose of the application for review and is thus caught by s 424A(3)(b).' 33 Weinberg J did not deal with the visa material (at [254]). Allsop J said at [243] and [245]: '243 … it is strictly unnecessary for me to deal with the other issues in the appeal. Argument took place in relation thereto, and Moore J has dealt with them. Therefore I will state my views briefly. 244 … 245 I agree with Moore J about the "PRC visa information".' 34 Moore J's observations are directly in point for the purpose of the present appeal. Although, strictly speaking, not part of the ratio decidendi of the case, and therefore not binding upon me as a matter of judicial precedent, I do not feel I should take a different approach to the application of s 424A(3)(b) expressed by Moore J and Allsop J on an issue so closely related in point of principle. 35 I confess to some disquiet about the notion that material or information brought to hearing at the request of the RRT, sighted or copied by the RRT, analysed later and then used to reject important parts of an applicant's claims, can be said to be information given by the applicant to the RRT for the purpose of the application for review so that the RRT is relieved of an obligation to put it squarely before the applicant and give him a chance to comment. Nevertheless, judicial comity and respect for the authority of the Full Court decision in SZEEU, which dealt comprehensively with a range of issues concerning the application of s 424A, compels me to conclude that the visa information in the appellant's passport was exempted by s 424A(3)(b) from any requirement falling upon the RRT under s 424A(1) or (2). 36 This was the only matter which, in my view, provided any potential to reveal a jurisdictional error on the part of the RRT and, for the reasons I have given, no jurisdictional error is disclosed. Accordingly I find there was no error in Lindsay FM's conclusion that no jurisdictional error was established in the proceedings before him. The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.