SZLIW v Minister for Immigration & Anor [2009] FMCA 333

A number of issues arise in relation to s.424A of the Migration Act. First, insofar as the applicant alleged generally that the Tribunal should have invited him to make written comments on the issues raised by the Tribunal during the hearing and that its failure to do so constituted a breach of s.424A of the Migration Act, this contention is not made out. If the applicant intended to contend that the Tribunal should have put to him its preliminary reasoning for comment, it is clear from the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 that it was not obliged to do so. In SZBYR the majority of the High Court (at [18]) referred with approval to the observations by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 (at 476 - 477) that the word "information" in s 424A(1):
- ... 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. ...
As stated in SZBYR at [18]:
- 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.
Further, while the Tribunal had regard to inconsistencies between the applicant's oral claims and those in his written statement provided to the Tribunal, no breach of s.424A(1) is apparent in that respect. As Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ pointed out in SZBYR at [18]:
- 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.
If it was asserted that the Tribunal should have put independent country information to the applicant for comment, such material is within the exceptions in s.424A(3) of the Act. Information the applicant provided to the Tribunal (in particular his written statement of claims) is also within s.424A(3) exceptions.
During the hearing an issue that arose on the face of the Tribunal's decision as to whether the Tribunal was obliged to put to the applicant for comment under s.424A of the Migration Act the similarities of the applicant's claims with those of other protection visa applicants was discussed. The parties were given the opportunity to make further written submissions on this issue and the hearing was adjourned.
The Tribunal as originally constituted had written to the applicant under s.424A of the Act on 3 July 2007 putting to him information to the effect that his typed statement of claims submitted to the Tribunal was the same in many respects as the statements submitted by two other persons who had arrived in Australia on the same flight and with whom he was living and that the review applications submitted by all of them appeared to have been handwritten by the same person. This information was said to be relevant because it may lead the Tribunal to conclude that the applicant's claims had been concocted for migration purposes and not to give any weight or credence to the personal details in his claims. The applicant was asked to comment on such information at an interview before the Tribunal hearing. The court book does not contain the decision of the Tribunal as originally constituted, but the Tribunal as reconstituted recorded that the applicant had been unable to explain to the satisfaction of the previously constituted Tribunal inconsistencies in his evidence in four respects, including the similarities between the accounts of his written statement and the accounts of the two other applicants, and that that led the previously constituted Tribunal to disregard the applicant's claims as fabricated.
As set out above, in the second hearing the Tribunal referred to the similarity of the applicant's claims to those of two others who had travelled with him and asked him if his claims reflected his personal experience or if he was given the claims by somebody else. It recorded that he claimed he became acquainted with the other applicants and that they discussed their claims.
As set out above (at [14]), in paragraph [56] of its findings and reasons the Tribunal referred to these other claims. It accepted that it was possible that it was the applicant's claims upon which others had based their claims and stated that it therefore made no adverse inference in relation to this matter, but noted that even if the applicant was the generator of the claims it did not make the claims in and of themselves true.
In these proceedings the first respondent did not contend that the second Tribunal was entitled to rely on the s.424A letter dated 3 July 2007 sent to the applicant by the first Tribunal. Rather, the first respondent contended that the Tribunal did not fail to comply with s.424A in respect of the matters contained in paragraph [56] of the Tribunal decision in relation to similarities of the applicant's claims with those of other protection visa applicants.
Counsel for the first respondent contended that there were two decisions of the Federal Court relevant to this issue that were "irreconcilable". The first of those decisions is the 3 November 2008 decision of Perram J in SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721. The second is the 19 November 2008 decision of Jagot J in SZJZB and Another v Minister for Immigration and Citizenship and Another [2008] FCA 1731; (2008) 105 ALD 226 (on appeal from my decision in SZJZB & Anor v Minister for Immigration & Anor [2008] FMCA 848). Their Honours were each exercising the appellate jurisdiction of the Federal Court.
In SZLPJ Perram J considered the temporal operation of s.424A in circumstances where at the hearing the Tribunal had raised with the applicant the fact that there was another matter before the Tribunal in which similar claims were made and the fact that this could raise concerns about her claims. His Honour stated (at [13]) that a passage in the Tribunal decision describing his evidence at the Tribunal hearing could not be read in isolation and had to be read with the following passage from the Tribunal's reasons for decision:
- As discussed in the course of the hearing, there was another matter before the Tribunal where similar claims have been made; the Tribunal has not in any way used this issue adversely to the applicants.
Perram J considered whether s.424A of the Act was enlivened in respect of any information relating to the other matter before the Tribunal in which similar claims had been made, observing (at [15]) that such information was not within the s.424A(3) exception and that "prima facie" therefore one might think that s.424A(1) would apply. Counsel for the Minister had submitted that because the Tribunal indicated it had not in any way taken into account the similar application, s.424A(1)(a) was not enlivened. Perram J held (at [15]) that "strictly speaking", for the reasons explained by the High Court in SZBYR at [17]:
- ... s 424A speaks not to the time of the Tribunal's decision, but rather at some anterior point, at which the Tribunal turns it mind to the particulars which must be provided. For that reason, the strict answer to the question posed by s.424A(1)(a) turns to be decided upon and examination of the Tribunal's state of mind at that anterior point.
His Honour acknowledged that the decision of the High Court in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 24; (2005) 228 CLR 294 may mean that such "anterior time" was not a single point of time but "in effect is all times which existed up until the moment of the Tribunal's reasoning process" (at [16]) and found that ultimately the question was "what inferences can be drawn from the material which was available to the Tribunal".
In the case before him, Perram J found it reasonable to draw the inference that the Tribunal did not at that earlier time or times consider that the separate application with similar claims would be the reason or a part of the reason for affirming the decision under review. His Honour accepted that the statement about the Tribunal's state of mind made when it delivered its reasons was sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time (SZLPJ at [16]).
In SZJZB Jagot J considered a Tribunal decision which referred to the fact that there were significant inconsistencies between the evidence of the applicant husband and that of his wife at the hearing. This evidence related to whether the husband had continued to reside in one location at all times. The Tribunal raised the inconsistencies with the husband during the hearing (SZJZB at [15]). In its findings and reasons the Tribunal stated (see SZJZB at [16]) that there were:
- ... significant differences in evidence of the applicant husband and the applicant wife concerning important aspects of the claim. The Tribunal does not rely on such inconsistencies in reaching its decision and does not consider these to be adverse to the applicant.
However Jagot J held that the Tribunal had failed to comply with s.424A of the Act, suggesting that in determining this issue much would depend on the nature of the material said to constitute "information" within the meaning of s.424A. Her Honour found that the appellant wife's evidence remained relevant to the assessment of the existence of the claimed well-founded fear of persecution despite the fact that her husband had initially given evidence to the same effect (so that there were internal inconsistencies in his evidence). Her Honour found that such inconsistencies did not mean that the appellant's wife's evidence was relevant only as part of an assessment of his credibility and that her evidence about where her husband lived after claimed attacks was "centrally relevant" to the substance of his claims of persecution in his home town for political and religious reasons (at [24]). The fact that "ultimately" the Tribunal did not use the wife's evidence to assess the substance of the claim (as opposed to the husband's credibility) was said not to be an answer (at [25]). Jagot J noted (at [25]) that SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [25] "leaves open the question of the permissibility of examining the Tribunal's decision when determining the application of s 424A reasons in the light of the High court's decision in SZBYR" (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190). However her Honour found in SZJZB that "insofar as the Tribunal's reasons are relevant to the present task, disavowal of reliance on the information is itself potentially ambiguous rather than determinative of the issue given the terms of s 424A" (at [25]).
The written submissions of counsel for the first respondent in relation to this issue were to the effect that the decisions in SZLPJ and SZJZB were "irreconcilable" on the basis that whereas Perram J held that it was sufficient to infer the Tribunal's state of mind from its written reasons, Jagot J did not reach the same conclusion. The first respondent suggested three reasons why the decision of Perram J in SZLPJ should be preferred and Jagot J's judgment in SZJZB should not be followed. Those submissions involved a criticism of the reasoning of Jagot J. In addition, counsel for the Minister contended that the circumstances of the present case were indistinguishable from those in SZLPJ and that there was no sound reason why a different result should be reached in these proceedings.
When the hearing resumed, I first raised with counsel for the first respondent my concern that I was being asked to consider whether the decision in SZJZB was wrong, notwithstanding that Jagot J was exercising the appellate jurisdiction of the Federal Court and had determined that my approach to s.424A at first instance was in error. In contrast, in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [35] - [38] the Full Court of the Federal Court (Weinberg, Jacobsen and Lander JJ) stated:
- [35] In NAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 136; (2002) 170 FLR 477 at [27] Raphael FM held that the judgments of single judges of this Court, are not binding on Federal Magistrates when those judgments are not delivered as an exercise of the Court's appellate jurisdiction from Federal Magistrates. However, his Honour observed that ordinary principles of comity required Federal Magistrates to follow judgments of single judges of this Court unless they were considered to be wrong
- [36] The authorities to which Raphael FM referred in NAAT certainly lend some support to his Honour's analysis. They suggest that the principle of stare decisis requires a court lower in the particular judicial hierarchy to follow a decision of a court higher in that hierarchy only where that higher court is exercising appellate jurisdiction; see Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 at 591 (Barwick CJ); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504 (Gummow J); Chief Executive Offıcer of Customs v Tony Longo Pty Ltd (t/as Aquila Shoes) Precedent in English Law
In both SZLPJ and SZJZB their Honours were exercising appellate jurisdiction. Neither SZANS (nor the recent "caveat" entered by Spender, Buchanan and Perram JJ in Suh v Minister for Immigration and Citizenship [2009] FCAFC 42 at [29] "against any notion that the authority of judgments of single judges of the [Federal] Court waxes and wanes according to whether they are sitting as single judges in the Court's appellate jurisdiction or in the Court's original jurisdiction"), addressed the issue of conflicting appellate decisions of the Federal Court.
I also raised with counsel for the Minister the issue of why, if there were two "irreconcilable" appellate decisions, it would not be proper for this Court to follow the decision that was later in time, which at that time would have been SZJZB.
In oral submissions counsel for the first respondent contended that the Federal Magistrates Court was not bound to follow the more recent decision of the Full Court of the Federal Court in SZJZB, on the basis that Jagot J did not refer to or consider the earlier decision of SZLPJ. Such submission appeared to suggest that the "per incuriam" rule applied to this Court in relation to a decision of a superior court, contrary to what Moffit P suggested in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 as follows:
- The per incuriam rule is a rule which applies only to a review by a Court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior Court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it had only decided the question apparently argued before it or on the basis that its reasons were its decision.
Counsel for the Minister also indicated that there was a very recent ex tempore decision of Logan J directly in point. In the absence of any submissions on these issues from the applicant (who was self-represented), I gave the parties time to make further written submissions in light of the approach taken by the Full Court of the Federal Court in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at [42]. In SZGME Black CJ and Allsop J observed at [42] that principles of precedent required a Federal Magistrate to follow a particular decision of a single judge of the Federal Court being a decision in the Court's appellate jurisdiction and the most recent Federal Court appellate decision on an issue where there were conflicting Full Court authorities. Their Honours did not think it was open to the Federal Magistrate to regard what was said in that Federal Court case as obiter and continued (at [42]):
- In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent. His Lordship said:
  - It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.
In further supplementary submissions the first respondent acknowledged that the doctrine of stare decisis requires a lower court in a particular judicial hierarchy to follow a decision of a court higher in that hierarchy if the higher court exercises appellate jurisdiction over the lower court (Favelle Mort Limited v Murray [1976] HCA 13; (1976) 133 CLR 580 at 591 and Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504) and that where there are two decisions of the higher court that are in conflict, the later decision in time should ordinarily be followed (see Miliangos and SZGME). It was submitted that the Court was not bound to follow the decision in SZJZB because it was distinguishable (albeit "irreconcilable" with the decision in SZLPJ) but that in any event the Court should follow the later decision of Logan J exercising appellate jurisdiction in SZLJF v Minister for Immigration and Citizenship [2009] FCA 158.
The first respondent maintained the contention that SZLPJ and SZJZB were irreconcilable insofar as different results were reached, but submitted that SZJZB was distinguishable for reasons that included those in the earlier submission that took issue with the fact that an important step in Jagot J's reasoning in SZJZB was said to be her Honour's conclusion that the appellant wife's evidence was "centrally relevant" to the husband's claims to fear persecution. The first respondent submitted that it was "not to the point that her Honour considered the applicant wife's evidence to have been 'centrally relevant'", that it was a question for the Tribunal to determine whether the wife's evidence would be the reason or part of the reason for affirming the decision under review and that "Her Honour's views as to the objective relevance of certain information had nothing to do with the proper interpretation and application of s.424A of the Act".
However, rather than suggesting a point of distinction, such contentions appear to me to take issue with the correctness of the approach taken in SZJZB to the scope of s.424A of the Migration Act. I am of the view that it is not open to me to take such an approach in relation to the decision in SZJZB (cf SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 in which Jacobson J distinguished SZJZB at [19] on the basis that "the information in question was considered ... to be relevant by the Tribunal, either explicitly or by inference from the review process" (emphasis added)).
In any event, there is now a later decision that is directly in point on the issue before the Court which I consider I am bound to follow. On 17 February 2009, in SZLJF, Logan J considered circumstances very similar to those that arose in the present case. In that instance, as in this case, the matter was before the Tribunal after remittal from this Court. The Tribunal as originally constituted had put information to the applicant pursuant to s.424A of the Migration Act in exactly the same terms as the information in this case: that the applicant in that case received his visa on the same day as two other persons who arrived on the same flight and with whom he was living, that the typed statement of claims were the same in many respects and that the review applications all appeared to have been hand-written by the same person. The Tribunal as reconstituted stated in its reasons (at [102]) (see SZLJF at [14]):
- As noted, the RRT has dealt with another two applicants who have made similar claims. The tribunal has not in any way used this matter in an adverse manner to the applicant. The tribunal has assessed the applicant's claims and evidence on their own merit.
Logan J found no error on the part of the Federal Magistrates Court in failing to find a failure to comply with s.424A of the Act. His Honour referred to the suggestion by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [17] in relation to s.424(1)(a) that:
- The use of the future conditional tense (would be) rather than the indicative, strongly suggests that the operation of section 424A(1)(a) is to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case.
In SZLJF Logan J (at [18]) also referred with approval to the approach taken by Perram J in SZLPJ:
- This acknowledged, it is permissible, in my opinion, to draw an inference that, even prospectively, the adverse contingency, which generated on the part of the first Tribunal, the letter of 3 July 2007, did not form part of the second Tribunal's thinking. That inference, to me, seems to be open from para 102 of the Tribunal's reasons. I note that in SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721, Perram J adopted a similar approach: see especially para 16 of his Honour's reasons for judgment.
In these circumstances I consider that this Court should follow the more recent decision of the Federal Court exercising appellate jurisdiction. I note that no issue arises in this instance as to any distinction between a decision of a single judge of the Federal Court exercising original jurisdiction and a decision of a single judge exercising appellate jurisdiction. (Compare Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 and Suh v Minister for Immigration and Citizenship [2009] FCAFC 42).
On this basis, in determining whether s.424A(1)(a) was enlivened I have considered what inferences can be drawn from the material available as to the Tribunal's state of mind at the anterior point or points of time as considered in SZLPJ and SZLJF, consistent with SZBYR at [17]. I note in that respect that as Jacobson J observed in SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [17] - [18]:
- [17] The question of whether the Tribunal considered the information to be a reason for affirming the decision must be a question of fact. As Siopis J observed in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36]:
  - [T]he assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information.
- [18] That is to say, in a proper case, the Court, in making its assessment, may draw inferences from the Tribunal's reasons as to whether the Tribunal considered the information to be a reason for affirming the decision.
In so doing I consider it reasonable, in the particular circumstances of this case, to draw the inference that "even prospectively" (SZLJF at [18]), the Tribunal did not consider that the similarities of the applicant's claims with those of other protection visa applicants (which were the subject of the first Tribunal s.424A letter) would be the reason or a part of the reason for affirming the decision under review. As in SZLPJ and SZLJF, I accept that the Tribunal's statement about its state of mind when it delivered its reasons (that it was possible that it was the applicant's claims on which the others with whom he discussed his claims based their claims and that it therefore made "no adverse inference in relation to his matter") is sufficient to permit an inference to be drawn that "the same state of mind existed at an earlier time" (SZLPJ at [16] and SZLJF at [18]).
It must be said that there are some difficult questions about the drawing of an inference in relation to whether s.424A(1)(a) was enlivened where particular information was raised in some way at a Tribunal hearing but was not used in the Tribunal decision (see SZJZB, MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319; (2008) 166 FCR 483 and SZMPT v Minister for Immigration and Citizenship [2009] FCA 99). The mere fact that an issue was discussed in some way at a hearing should not of itself preclude the drawing of an inference that s.424A was not enlivened (see SZLPJ at [13]). Nor should it compel an inference that particular information "would be" the reason or a part of the reason for affirming the decision under review.
In the particular circumstances of this case, while the issue was raised at the hearing, the Tribunal proceeded on the basis that it accepted the applicant's oral explanation for the similarity of the claims of others. The Tribunal made no adverse inference in relation to these matters. However it did not simply disavow reliance on the information. It explained why it did so. It was on this basis that it went on to consider the merits of the applicant's claims, that is, it accepted for the purposes of the decision that the applicant was "the generator of these claims and not the simulator".
In light of all the material before the Tribunal, its explanation for its state of mind and its consideration of whether it accepted the applicant's claims on their merits is such that it can be inferred that the Tribunal did not consider the information about the similar claims would be "the reason or a part of the reason for affirming the decision under review" at an anterior time in the sense considered in SZBYR. Hence I am satisfied that s.424A(1) of the Act was not enlivened.
As no jurisdictional error has been established the application must be dismissed.

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Cases Cited (38)

SZLIW v Minister for Immigration & Anor [2009] FMCA 333 (24 April 2009)