SZKPN v Minister for Immigration and Citizenship

THE TRIBUNAL DECISION 8 The Tribunal found that the appellant was not a credible witness. In considering the appellant's political activities before 2001, the Tribunal did not discern any actual or imputed political opinion arising from such activities that would give rise or contribute to a real chance of prospective harm. Regarding the appellant's claims surrounding the 2001 mayoral election, the Tribunal did not accept that her uncle was killed during this period because it found her evidence of the alleged murder implausible and because the Tribunal could not locate any independent evidence of the murder or any electoral violence. 9 The Tribunal accepted that the appellant supported a candidate opposed to the current mayor in the 2001 mayoral campaign but found her knowledge of the political issues and her political activities at this time inconsistent with her having played a notable role in the campaign or having acquired any kind of political profile. 10 The Tribunal rejected the appellant's claims that she had been targeted in the period following the 2001 elections. The Tribunal also did not accept the appellant's claims that she had moved to Manila in July 2001. 11 The appellant's 'unconvincing' evidence relating to her alleged rape and the Tribunal's findings regarding the appellant's general credibility led the Tribunal to reject her claim that she had been raped in 2004. On credibility grounds the Tribunal also rejected her claims to have fled to Thailand in 2004 and to have suffered persecution in the Philippines from 2004 until her departure in 2006. 12 The Tribunal was not satisfied that the appellant had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 ('Convention')reason. The Tribunal affirmed the delegate's decision to refuse to grant the protection visa to the appellant.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE 13 By application filed in the Federal Magistrates Court of Australia on 8 May 2007, amended application filed on 27 July 2007, and further amended application filed on 21 September 2007 the appellant sought judicial review of the Tribunal decision. The initial and amended applications raised several grounds of review which included claims that: the Tribunal erred in finding that the appellant did not satisfy the four elements of the Convention definition of a 'refugee'; the Tribunal did not give the appellant the benefit of the doubt; the Tribunal made mistaken findings of fact on the superficiality of the appellant's political knowledge; the Tribunal was biased; and the Tribunal failed to comply with ss 424A(1) and 424A(2) of the Migration Act 1958 (Cth) ('the Act'). 14 In considering the grounds in the original application, Federal Magistrate Turner found that the appellant's claim that she satisfied the Convention definition of 'refugee' sought to review the Tribunal's findings of fact. The Federal Magistrate accordingly rejected such ground. In relation to the appellant's ground that the Tribunal should have given her the benefit of the doubt, his Honour found that there was no reason to give the appellant the benefit of the doubt as the Tribunal had formed an adverse view of the appellant's credibility. 15 The Federal Magistrate noted that no particulars or evidence supported the appellant's claim that the Tribunal was biased against her. His Honour found that there was 'nothing to show' that a 'fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided': see Re Refugee Review Tribunal & Another; ex parte H & Another (2001) 179 ALR 425 at [27]. His Honour accordingly rejected this ground. 16 The Federal Magistrate considered the grounds contained in the appellant's amended applications alleging breaches of s 424A of the Act and found that such section contains no requirement that notice be given under the section prior to the hearing: see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 per Kirby J at [160]. His Honour further found that it was only after the hearing that inconsistencies came to constitute a reason for undermining the appellant's claim, and then noted that the relevant appraisals of the Tribunal were not 'information' for the purposes of s 424A(1) of the Act. 17 The Federal Magistrate dismissed the appellant's application, amended application and further amended application.

APPEAL TO THIS COURT 18 On 21 December 2007 the appellant filed a notice of appeal in this Court which raised three grounds of appeal as follows:

1. His Honour erred in concluding that the Tribunal's decision was not affected by jurisdictional error because the following material was not 'information' within the meaning of s 424A Migration Act 1958 such to enliven the obligations provided by that section:

a. Information from the protection visa application that the appellant was based in Manila from 1995 to May 2006;

b. Information from a Departmental case note on the appellant's application for a tourist visa that the application had provided the Department with evidence of being in stable employment for seven years and two months as a sales and marketing manager.

2. In relation to the material at paras. 1(a) and (b), His Honour misapplied s 424A in failing to find that the material itself was 'information' within the meaning of s 424A.

a. His Honour only considered whether the Tribunal's subjective appraisal of the material was 'information' and not the material itself.

3. His Honour erred in finding that s 424A imposed no obligation on the Tribunal to give notice of any 'information' prior to a hearing even when at that stage it had determined that the 'information' would be the reason or part of the reason for affirming the decision under review.

FINDINGS 19 In relation to the first ground of appeal, the appellant raised the same issues before Federal Magistrate Turner who found that the information relied upon to support the first ground of appeal ('the particularised information') was not information which formed part of the Tribunal's reason for decision. 20 In SZBYR the High Court of Australia considered whether certain information contained in the statutory declaration 'would be the reason, or part of the reason, for affirming the decision that is under review': see s 424A(1)(a) of the Act. The High Court at [17] said: The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

21 The Court in relying upon the above observations is unable to conclude that the Federal Magistrate erred in law. The particularised information did not constitute information for the purpose of s 424A(1) of the Act as it was not a reason used by the Tribunal to reach its conclusion that the appellant was not a refugee. In SZBYR at [18] the Court said: Thirdly 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…

22 There is a second reason to reject the appellant's contention that the details she provided constituted 'information' which should have been provided to her under s 424A of the Act. The precise information which the appellant relies upon was put to her by the Tribunal's letter dated 12 February 2007 and she was asked to comment on it. The information was stated to be relevant to the Tribunal's review of the delegate's decision. By letter dated 26 February 2007 the appellant responded to such letter. There is no obligation upon the Tribunal to invite the appellant to comment upon such information before the Tribunal hearing: see SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198 at [34] and SAAP per Kirby J at [160]. 23 The Federal Magistrate was correct in his conclusion that there was no error by the Tribunal. Accordingly, the first ground of appeal is rejected. 24 The second ground of appeal alleges that in respect of the particularised information his Honour misapplied s 424A in failing to find that the material itself was 'information' within the meaning of s 424A. It is alleged that his Honour only considered whether the Tribunal's subjective appraisal of the material was 'information' and not the material itself. 25 For the reasons set out above in SZBYR, there was no obligation upon his Honour to make findings as to whether the particularised information constituted 'information' for the purposes of s 424A(1) of the Act. Such material clearly was information provided to the Tribunal. However, it was the appraisal of that information and not the information itself which formed part of the reasons for the Tribunal's decision. There is no error in his Honour's decision. 26 It should be noted, again, that the Tribunal's letter dated 12 February 2007 complied with the requirements of s 424A of the Act. 27 The third ground of appeal claims that his Honour erred in finding that s 424A imposed no obligation on the Tribunal to give notice of any 'information' prior to a hearing even when at that stage it had determined that the 'information' would be the reason or part of the reason for affirming the decision under review. 28 As stated above, the decision of the Full Court in SZKLG establishes that there is no obligation upon the Tribunal to forward the letter pursuant to s 424A prior to the hearing. There is no error in his Honour's determination in respect of this issue. 29 It follows that no jurisdictional error has been demonstrated in the findings of Turner FM and that the appeal must be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 19 May 2008 Counsel for the Appellant: The Appellant appeared in person