SZLSM v Minister for Immigration and Citizenship

SZLSM v Minister for Immigration and Citizenship - [2009] FCA 537 - FCA 2009 case summary — Zoe

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APPLICATION IN THE FEDERAL MAGISTRATES COURT 7 By application filed in the Federal Magistrates Court of Australia on 5 December 2007 and by amended and further amended applications filed in Court on 5 June 2008 the appellants sought judicial review of the Tribunal decision. 8 Before Nicholls FM the appellants claimed that the Tribunal had breached s 424A of the Act. The appellants submitted that the Tribunal considered the appellants' father to be their representative, yet he was not appointed by them as their representative and was therefore not able to lawfully represent them before the Tribunal. The appellants alleged that the evidence provided by the appellants' father was not information provided by the appellants and accordingly was not excluded from the requirements of s 424A(1) of the Act by s 424A(3)(b). Accordingly the Tribunal was required by s 424A(1) of the Act to provide the appellants with details of 'this adverse information' and to invite them to comment upon it. 9 Secondly, the appellants alleged that the Tribunal failed to comply with s 424AA of the Act as it relied on 'independent information' and 'previous claims' but failed to provide adequate particulars of such information to the appellants, failed to explain 'why it was relevant' and failed to provide an opportunity to the appellants to comment upon it. 10 The appellants also claimed that the Tribunal failed to consider 'all integers' of their claims, particularly their claim to fear harm 'due to them being children born outside Bangladesh'. 11 Nicholls FM found in relation to the first ground that the Tribunal had not appointed the appellants' father as their representative. Rather, the appellants' father did this himself when he signed and lodged the Application for Review form. His Honour stated that the appellants' father acted in his capacity as the appellants' common law guardian, and was responsible for the entirety of the conduct of the review before the Tribunal. In the circumstances it was therefore correct for the Tribunal to have treated the appellants' father's evidence as being the evidence of the appellants. Such information was thereby excluded from the operation of s 424A(1) of the Act by s 424A(3)(b). 12 Nicholls FM observed in relation to the second ground that 'information' for the purposes of s 424AA of the Act has the same meaning as 'information' in s 424A of the Act citing SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 at [18]. His Honour found that there was no obligation to give the independent country information to the appellants under s 424AA as that information, being information not specifically about the appellants, was excluded from s 424A(1) of the Act by reason of s 424A(3)(a) of the Act. His Honour noted that, in any event, the independent country information was put to the appellants' father at the hearing. His Honour also found that neither the independent country information nor the appellants' father's 'previous claims' that he had made plans to leave Bangladesh were the reason or part of the reason for affirming the delegate's decision. 13 Nicholls FM then considered the appellants' argument that the Tribunal failed to consider the appellants' claim to fear harm 'due to them being children born outside Bangladesh'. His Honour was satisfied that the Tribunal had clearly understood the extent of the appellants' claims, both as expressly put, and as could be said to arise on the materials before it. His Honour found that there was no material before the Court that gave rise to any claim by the appellants to fear harm because they were children born outside Bangladesh, or because they were members of any particular social group. 14 Nicholls FM found no jurisdictional error in the Tribunal decision and dismissed the application.

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18 Nicholls FM applied such principle to the circumstances of the appellants' family, whilst observing that Re Woolley was decided in the context of s 189 of the Act. His Honour concluded that the appellants' father undertook the role of guardian for the appellants when he signed the Application for Review form and lodged it with the Tribunal. His Honour also noted that the appellants' response to the Tribunal's s 424A letter was signed by the appellants' father and that the Response to Hearing Invitation Form was also signed by the appellants' father. Further, when the Tribunal hearing commenced the appellants' father confirmed that 'he was giving evidence on behalf of' the appellants. 19 His Honour found that at all times the appellants' father acted in the capacity of the appellants' common law guardian and was their 'representative'. 20 The appellants submit that Nicholls FM erred in characterising the appellants' father as their common law guardian by relying upon the decision of the High Court in Re Woolley. The appellants submit that such authority does not apply as the common law principle of guardianship is overridden by the inconsistent provisions of ss 36(2)(b) and 424A of the Act. Section 36(2)(b) of the Act specifies the criteria for a protection visa and allows, inter alia, for dependants to apply for a protection visa in their own right and name, and s 424A refers to 'an applicant' without any qualification that such applicant must not be legally incapacitated. The appellants accordingly submit that 'express evidence' was required before Nicholls FM could characterise the appellants' father as their common law guardian. 21 The Court finds that the appellants' submission represents a misconception of the provisions of the Act. The Court acknowledges that s 36(2)(b) of the Act provides that an applicant may apply for a protection visa in his or her own right, regardless of any legal incapacity. In this regard, the Act is 'clear and valid' (see Re Woolley at [194] per Kirby J) and overrides any common law principle requiring an infant to act through a guardian: see, for example, Wettig v Langdon (1885) 11 VLR 530. However, the Act does not purport to prevent an infant from acting through their guardian, nor do the provisions of s 424A restrict the operation of the common law principle of guardianship. 22 The appellants rely upon the finding of McHugh J in Woolley at [101] in which his Honour said: The parens patriae jurisdiction of the courts cannot be invoked to read down the legislative direction that children who are unlawful non-citizens must be detained in immigration custody.

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Information provided by the appellants' father 27 In view of the above finding that the appellants' father was acting as the appellants' common law guardian, any information provided to the Tribunal by the appellants' father on their behalf was not required to be given to the appellants under s 424A(1) of the Act because of the exception contained in s 424A(3)(b). However, the Court will consider the appellants' submission regarding the information provided to the Tribunal by the appellants' father. 28 The appellants submit that Nicholls FM, by relying upon the decision of the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [17]-[18], erred in finding that the evidence provided by the appellants' father was not 'information' for the purpose of s 424A(1) of the Act. 29 Section 424A(1) requires the Tribunal to give to an applicant 'particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review'. 30 In SZBYR at [17]-[18] the High Court found that a Tribunal's disbelief of the appellants' evidence is not 'information' for the purpose of s 424A, because the evidence 'did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations' (see SZBYR at [17]). The appellants seek to distinguish SZBYR from the current proceeding on the basis that in the present proceedings the Tribunal had made findings that the appellants' father's evidence was confused and non-responsive whereas the inconsistency considered in SZBYR arose from the evidence before the Tribunal compared to that provided in the protection visa application. The appellants claim that there is a distinction between the respective inconsistencies referred to by the Tribunals in each matter in reaching their decisions. 31 The principle arising in SZBYR that inconsistencies, and the Tribunal's reasoning, does not comprise 'information' within the meaning of s 424A(1), has been followed by this Court regardless of the specific nature of the doubts, inconsistencies or deficiencies in evidence that led the Tribunal to reach an adverse credibility finding. The reason the High Court in SZBYR excluded such things from the definition of 'information' in s 424A(1) was not based on the inconsistencies which the Tribunal relied upon to form an opinion on credibility in the appeal before it, but rather upon an awareness of the problems which would arise if adverse credibility findings and the Tribunal's reasoning could be said to constitute 'information'. As the High Court said 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 each step in its reasoning process.

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Ground 2: Failure to accord procedural fairness 46 The appellants submit that Nicholls FM erred in finding that the Tribunal complied with s 424AA of the Act. The appellants submit that the Tribunal, by referring at the hearing to independent country information which suggested a strong link between Jamaat-e-Islami and the present government in Bangladesh, should have stated explicitly the relevance of such link to the appellants' claimed fear of persecution in order to discharge its obligation under s 424AA(b)(i). That is, to ensure, as far as practicable, that the appellants understood why the information was relevant to the review. The appellants also claim that since they were not provided with an opportunity to comment upon such information as provided by s 424AA(b)(ii), this section was also not complied with. 47 The appellants submit that 'the fact that the Tribunal does not record that it explicitly stated the relevance of the independent information strongly suggests that it was not explicitly stated by the Tribunal at the hearing'. Having embarked upon a discussion of the country information, it is submitted that the Tribunal was obliged to explicitly state the relevance of that information to the appellants. The appellants challenge his Honour's finding that the information was 'clearly put' to the appellants' father at the hearing. Under this ground of appeal the appellants submit that it is such information, rather than the Tribunal's adverse finding of the father's evidence that is at issue. The appellants submit that Nicholls FM erred in finding that the 'information' set out in [47] above was not 'information' for s 424AA purposes. 48 The Tribunal decision records the following: The Tribunal noted that independent information suggests that there is a strong link between the current government and JeI [Jamaat-e-Islami] and it is in a much stronger position than the other parties. [The appellants' father] said that maybe JeI made a link but personally he is against it. The Tribunal noted that [the appellants' father] claims persecution because of his work for JeI and given the current political situation, the Tribunal may find that there is no real chance that he will face persecution if he returned to Bangladesh.

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49 Section 424AA of the Act applies to applications for review lodged after 29 June 2007: see Migration Amendment (Review Provisions) Act; see also SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [13]. Since the application for review was filed on 5 September 2007, s 424AA is operative to this appeal. 50 Section 424AA provides that 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': see s 424AA(a). Additionally, the Tribunal must ensure as far as is reasonably practical 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: see s 424AA(b)(i). 51 The Court observes that it is uncertain whether the Tribunal intended to raise the independent country information with the appellants' father with the intention of discharging its obligations under s 425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152) or alternatively whether by raising the independent country information with the appellants' father at the hearing, the notification procedure provided in s 424AA of the Act was required. 52 If the former were the case and the Tribunal did not intend to activate the discretionary notification procedure contained in s 424AA, the Tribunal was merely discharging its obligations under s 425: see SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589 at [24]. Section 424AA is engaged only where the Tribunal clearly elects to exercise its discretion by following the procedure specified in that section. 53 In this instance the Court concludes from the Tribunal's decision that it did not 'orally give to the applicant clear particulars of the information' as required by s 424AA. Rather, it merely invited the appellants' comment upon independent country information. Pursuant to s 424A(3)(a), the obligation under s 424A(1) has no application in respect of independent country information. Accordingly, on this basis s 424AA of the Act did not apply. 54 However, even if the Tribunal had engaged s 424AA of the Act, the Court observes that the exclusions contained in s 424A(3) apply with equal force to s 424AA: see SZLXI at [27]. Accordingly, as independent country information is excluded from the operation of s 424A(1) of the Act by s 424A(3)(a), such information is also excluded from the operation of s 424AA of the Act. The Tribunal was accordingly not required under s 424AA of the Act to provide the independent country information to the appellants' father or to explain its relevance to the decision under review. There was accordingly no breach of s 424AA. 55 In support of the finding that s 424AA has not been breached, the Court refers to the recent decision of the Full Bench of the Full Federal Court in SZMCD. In that decision Tracey and Foster JJ said at [103]: (a) The Tribunal has a discretion as to whether it will go down the path of providing oral particulars as contemplated by s 424AA;

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Should the matter be referred to the Full Bench of the Full Federal Court? 57 The Court notes the further submissions of the appellants requesting the Court to submit this issue for reconsideration by the Full Bench of the Full Federal Court. The relevant provision is s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth)which provides that an appeal from a migration judgment of the Federal Magistrates Court can be heard by a Full Bench where 'a judge considers that it is appropriate for the appellant jurisdiction of the Court…to be exercised by a Full Court'. 58 The relevant inquiry is whether it is 'appropriate'. Some examples of decisions in which it was considered appropriate were SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193, SZFSV v Minister for Immigration and Citizenship [2007] FCA 1860and Man Chi Christine Chung v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal [2006] FCA 1317. In SZKJI, Gyles J referred the appeal to the Full Bench because a previous Full Bench decision had been brought into question as a result of changes in the Act and subsequent decisions of other judges of the Federal Court. In those circumstances his Honour considered that the Full Bench decision needed to be reviewed and the appropriate mechanism was by way of another Full Bench decision. 59 In SZFSV Gray J referred the appeal to the Full Bench because an important question of law arose, there was conflicting single judge authority and there was no clear Full Court or High Court guidance on the question. In Chung Tracey J referred the matter to the Full Bench because it involved a novel question of law. 60 The present appeal stands in stark contrast to the authorities cited. The decision of the Full Bench in SZMCD has confirmed authorities of seven different judges in this Court concerning the interpretation of s 424AA of the Act and its relationship to s 424A (see [99]). The decision of the Full Bench was unanimous and the decision was handed down only a little more than a month ago. There is simply no valid reason for this Court to find that it is appropriate to refer the matter to the Full Bench.

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Ground 3 61 The appellants submit that Nicholls FM erred in finding that the Tribunal correctly applied the test for persecution. The appellants claim that his Honour did not properly consider the particular attributes of the appellants, namely that the appellants are members of a minority group, being children born outside of Bangladesh, and that they would therefore not be able to obtain effective protection from the authorities. For convenience such claim will be hereafter referred to as 'the additional claim'. 62 It was not apparent to Nicholls FM that the additional claim had been articulated before the Tribunal as a separate claim. His Honour observed that the assertions that appellants feared harm because their father had been involved in a political movement were included in the appellants' claim. 63 The Tribunal decision records the appellants' claim that 'they [the appellants] were born in Australia, they are not familiar with Bangladesh, its language and culture and…they will be unable to settle there'. The Tribunal concluded that any difficulties encountered by the appellants in settling in Bangladesh would not amount to 'serious harm' within the meaning of s 91R(1) of the Act and that any 'such harm would not be for a Convention reason'. The Court considers that such finding is without error. 64 The appellants alternatively submit that the additional claim extends beyond the scope of the Tribunal's consideration. The appellants submit that by reason of their being born outside of Bangladesh they would be unable to access effective protection from the authorities in Bangladesh. The appellants rely upon the decision of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] in submitting that the Tribunal should have discerned and considered the additional claim even though it was not explicitly raised before the Tribunal. However, the appellants do not point to any material that was before the Tribunal which the Federal Magistrate did not consider in his assessment and rejection of the appellants' submission before him that such a claim was apparent before the Tribunal. 65 While the exact standard of 'apparentness' which is necessary before a Tribunal must consider a claim is not clear, the Court observes that the Tribunal is not required to make the appellants' case for them: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 at [40]. The Tribunal's role is to address the issues put before it: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78] per Kirby J. It is for the appellants to advance their arguments and evidence to support their contention that they have a well-founded fear of persecution: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. 66 The Full Court in NABE at [58] said that an unarticulated claim will only attract the review obligation of the Tribunal when such claim is 'apparent on the face of the material before the Tribunal'. The Full Court in NABE at [60] also said that '[i]t [the Tribunal] is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it'. 67 Nicholls FM found that there was no available material that gave rise to this additional claim. In the absence of any evidence from the appellants that there was material that the Federal Magistrate failed to consider, this Court also considers that the additional claim was not apparent on the material before the Tribunal. As referred to above, the only identifiable claim that arose from the appellants' claim that 'they were born in Australia' was considered and determined by the Tribunal without error. 68 The Court concludes that neither the Tribunal nor Nicholls FM was in error.

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