SZLPO v Minister for Immigration & Citizenship

7 A Full Court held that the first Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) ("the Act") by not giving the appellant particulars of the sources consulted by DFAT. It found jurisdictional error in the first Tribunal's decision as a result. It set that decision aside and remitted the matter to the Tribunal; see SZLPO v Minister for Immigration and Citizenship (No 2) (2009) 255 ALR 435; [2009] FCAFC 60. 8 On 29 July 2009, the review of the delegate's decision came before the Tribunal ("the second Tribunal") for its consideration. The second Tribunal conducted an oral hearing on that day. 9 In its reasons for decision, dated 28 September 2009, at [32], the second Tribunal said: The Tribunal explained to the applicant why the court had remitted his case to the Tribunal. The Tribunal read out to the applicant the entire response that the previous Tribunal had received from the Department of Foreign Affairs and Trade, including the sources of information upon which DFAT relied in concluding that the letter of introduction that the applicant had provided was fraudulent. The Tribunal asked the applicant if he would like to respond to this information.

10 The appellant responded saying, in effect, that Mr Bhuiyan was biased against him. Later at [44] of its decision the second Tribunal said that it: …put to the applicant that there is information which might cause the Tribunal to doubt that the applicant is Ahmadiyya and if the Tribunal made such a finding, the Tribunal might then refuse the visa application. This information is the denial by Mr Buyian that he wrote the applicant's letter of introduction and the applicant's evidence that he has had little involvement with the Ahmadiyya in Australia. The Tribunal informed the applicant that he was entitled to ask for time to provide a written or verbal response to this information.

11 After a short adjournment the applicant requested "two to three months to provide the Tribunal with further documents". The second Tribunal granted one month to the appellant to respond to the information referred to above. After the expiry of one month the appellant required an additional month. The second Tribunal refused a further extension but said that if the appellant provided material prior to the making of the decision, the Tribunal would have regard to it. The extension request was sent on 27 August 2009, about one month before the decision.

Section 424AA 12 In his amended application for judicial review before the Court below, the appellant asserted that the second Tribunal did not comply with s 424AA of the Act. The appellant asserted at paragraph 4 of his grounds of review that "[t]he explanation given in paragraph 80 to satisfy the requirement [of s 424AA] is not sufficient for complying [with] s 424AA of the [A]ct." 13 At [80] of its reasons for decision, the second Tribunal said: The applicant was invited to comment or respond to the information provided by the National Ameer and Mr Asaduzzaman Bhuiyan pursuant to s424AA of the Act. The applicant was allowed a month to provide further information. He wrote to the Tribunal on 27 August 2009 seeking an extension of time to gather some documents to support his statement that he was an Ahmadiyya. However, the applicant did not indicate the nature of the documents he was seeking. The Tribunal also does not accept the explanation given by the applicant in response to the information provided by the National Ameer and Mr Asaduzzaman Bhuiyan. The applicant has been aware since the first Tribunal in 2007 that the National Ameer has denied that he was a member of the Ahmadiyya community and that the letter of introduction was found to be false. In these circumstances the Tribunal decided not to grant an extension of time but indicated that any submissions the applicant provided before this decision was made would be taken into consideration. The applicant has not submitted any further documents relating to this issue.

14 Section 424AA of the Act provides If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear 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) if the Tribunal does so - the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 15 At [22] of his reasons for judgment, the Federal Magistrate noted that pursuant to s 424AA, as disclosed at [80] of the second Tribunal's decision, the appellant was invited to comment on or respond to the information provided by the National Ameer and Mr Bhuiyan. The Federal Magistrate said he was satisfied that the second Tribunal complied with s 424AA of the Act by its statement at [80] that it had put the relevant information to the appellant. He also observed that the appellant had not provided any evidence that the second Tribunal had not put the relevant information to him at its oral hearing. 16 Ground 1 of the appellant's grounds of appeal asserts that the relevant information was not put to him during the hearing. He also asserts that the Tribunal did not give him all the information it received from DFAT. In the absence of the transcript of the second Tribunal hearing, this Court is unable to say that the Court below erred in accepting, on its face, that the second Tribunal's finding that it did as it said it did at [80] of its decision. In any event, there is an internal inconsistency in Ground 1 of the appellant's appeal. In one sentence of it he claims not to have had information put to him and in the next sentence he claims not to have had all the DFAT information put to him. The later reference may have been intended for the first Tribunal's decision which is not the subject of this appeal. 17 Ground 3 of the ground of appeal alleges again that the Court below erred in not finding that the Tribunal did not comply with s 424AA "and not allowing additional time to the applicant". The second Tribunal did comply with s 424AA and did allow additional time to the appellant, up to and including the date of the decision. 18 Any challenge to the judgment below based on any alleged breach of s 424AA by the second Tribunal is misplaced.

Other grounds 19 Ground 2 of the grounds of appeal refers to [33] of the judgment below. That paragraph concerned the appellant's ground of review before that Court which asserted that: [the] Tribunal wrongly put to the applicant that his failure to become involved in the Australian Ahmadiyya community might lead the Tribunal not to accept that the applicant is an Ahmadiyya.

20 At [33] of its judgment the Court below said: The applicant alleged that his involvement in the Australian Ahmadiyya community was not a legal criterion for being given protection in Australia and that a lack of such involvement did not amount to a failure to satisfy any criterion for the grant of a protection visa. Although that is correct, the Tribunal's conclusions on the credibility of the applicant's claims were relevant to its ultimate decision whether it was satisfied that he has a well-founded fear of persecution for a Convention reason." (emphasis included in quote)

21 At [34], the Federal Magistrate said: In any event, the allegation misstates what the Tribunal relevantly put to the applicant. Paragraph 44 of the Tribunal's decision records that it: …put to the applicant that there is information which might cause the Tribunal to doubt that the applicant is Ahmadiyya and if the Tribunal made such a finding, the Tribunal might then refuse the visa application.

22 The analysis of the Federal Magistrate is correct. There is nothing in Ground 2 which identifies an appealable error in the judgment of the Court below. 23 In addition to referring to s 424AA, Ground 3 further alleges that: The Tribunal also did not understand the requirement of s 91R (3) of the Act and there is a lack of attention on the part of the Tribunal.

24 A similar assertion was made in Ground 4 of the grounds of review from the proceeding before the Federal Magistrate. 25 Section 91R(3) of the Act provides that: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfied the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 26 Section 91R (3) was not relevant to the second Tribunal's deliberations because the appellant did not engage in any particular conduct in Australia which he relied on to support his claims for a protection visa. That does not prevent the Tribunal relying on an absence of conduct, such as religious worship in Australia, in assessing whether or not a claimant adhered to a particular religion. As Crennan and Kiefel JJ said in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [54], "…the only conduct to which sub-s (3) is directed is that which may be weighed in favour of an acceptance of the person's claims". The reasoning of the Federal Magistrate is not inconsistent with this analysis. There is no appealable error in his consideration of s 91R (3) at [44] to [46] of the reasons for judgment. 27 The only remaining matter dealt with is that contained in appeal Ground 4, which alleges that the information collected by the Tribunal was information which the Tribunal was not authorised by s 424A to collect. This ground of appeal relates to that part of the Federal Magistrate's judgment at [58] to [60] under the heading "DFAT enquires beyond power". 28 At [58] to [60] the Court below said: "In his written submissions the applicant queried the power of DFAT to make the enquiries which it made and submitted that the Tribunal could not request DFAT to make such inquiries. The applicant submitted that, in asking DFAT to make enquiries which it was not empowered to make, the Tribunal exceeded its own powers and erred as a result. However, whether or not DFAT had the power to do what it did, the fact is that it did make enquiries for the Tribunal. Further, the real question is not the extent of DFAT's powers but whether the Tribunal had power to obtain information in this way. In this regard, the broad terms of s.424 (1) must be noted. That subsection provides:

In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. Section 424(1) confers a general power on the Tribunal to obtain any information that it considers relevant. The only limitation on that power is that the Tribunal must have regard to that information in making its decision: SZKTI at 501 [37]. As the High Court said, s.424(1) puts into statutory form a power to obtain information by asking questions, an obvious power to give an inquisitorial body: SZKTI at 503 [45]. Further, nothing about s.424 (1)suggests that the Tribunal itself is obliged to contact the ultimate source of the information. Were that to be so, the Tribunal could never rely on the information commonly called "independent country information" which is prepared by bodies such as the US Department of State, the UK Home office, Amnesty International and media agencies, all of which were relied upon by the Tribunal on this occasion and to which no objection has been made by the applicant.

29 The above analysis of his Honour is correct. There is no basis for any assertion, if made, that it was wrong for the Tribunal to consider that the DFAT material was relevant. The material was relevant to the second Tribunal's assessment of the truthfulness of the appellant and to whether or not he had a subjective fear of persecution on the basis of religious beliefs.

Conclusion 30 As each ground of appeal raised by the appellant fails to reveal any appealable error in the Court below and/or any judicially reviewable error in the reasoning of the second Tribunal the appeal is dismissed. The appellant must pay the costs of the first respondent Minister. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.