SZOCE v Minister for Immigration & Citizenship

Federal Court of Australia|2011-02-22|Before: Gordon J

REASONS FOR JUDGMENT 1 This is an appeal against an Order of Federal Magistrate Barnes of 22 December 2010 dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal) of 15 December 2009. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the First Respondent), to refuse to grant the appellant a protection visa (Class XA) under s 65 of the Migration Act 1958 (Cth) (the Act).

PROCEDURAL HISTORY 2 The appellant is a citizen of Cameroon. The appellant entered Australia on 30 July 2009 as the holder of a business visa. When interviewed at the airport, the appellant made claims for protection and was detained. On 13 August 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. On 30 September 2009, a delegate of the First Respondent refused the application for a protection visa. On 1 October 2009, the appellant applied to the Tribunal to review that decision. 3 On 15 December 2009, the Tribunal affirmed the decision of a delegate of the First Respondent to refuse the appellant's application for a protection visa. The appellant then sought review of the Tribunal's decision and, on 22 December 2010, the Federal Magistrates Court dismissed that application for review.

THE TRIBUNAL DECISION 4 The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol Relating to the Status of Refugees. The Tribunal considered the appellant's claims to fear persecution on two separate bases (i) political opinion and (ii) tribal marriage. 5 The Tribunal was satisfied that the appellant was Cameroonian and an Anglophone but was not satisfied that the appellant's circumstances as a whole supported the view that the appellant was subject to discrimination amounting to persecution. In particular, the Tribunal found that it was not satisfied that the appellant had given a "full and frank" account of his family and employment situation before coming to Australia. 6 Concerning the appellant's alleged persecution on the basis of his imputed political opinion, the Tribunal found that "serious flaws" in the appellant's claims and evidence about an alleged incident in December 2008 and the subsequent events leading up to his departure from Cameroon "raise[d] concerns about the veracity of the claims". The Tribunal found that the authorities did not pursue him based on his imputed political opinions, namely a perceived association with the Southern Cameroon National Council. 7 In dealing with the appellant's claim of fear of persecution arising from his tribe's tradition of requiring a dead man's son to marry his fathers widow(s) (apart from the son's mother), the Tribunal concluded that it did not have before it any independent evidence indicating that such a custom existed in the particular tribe to which the appellant belonged and that it considered the appellant's conduct was very strong evidence that he was not subject to persecution for such a reason. 8 The Tribunal affirmed the decision of the First Respondent not to grant the appellant a protection visa.

THE COURT BELOW 9 The appellant filed an application for review in the Federal Magistrates Court on 7 January 2010. The grounds of review before the Federal Magistrate were: 1. That the … Tribunal failed to accord procedural fairness to me. 2. That the [Tribunal] in finding an adverse view of [his] credibility, then failed to properly examine [his] case. 3. That the [Tribunal] failed to give due consideration to the evidence that [he] gave it, on the basis that forgery is common place in Cameroon. 10 On 24 September 2010, the appellant filed an amended application. It contained one ground as follows: The Tribunal made a jurisdictional error by failing to comply with s 424A of the ... Act. Particulars (a) By letter dated 2 November 2009, the Tribunal wrote to the [appellant] pursuant to s 424A of the Act attaching, inter alia: i) A marriage certificate, two (2) birth certificates and letters of administration being documents included in a Business Visa Application made in the [appellant's] name and lodged with the Australian High Commission in Pretoria on 27 March 2009 (Attachment A). (b) The Tribunal did not put to the [appellant], nor otherwise enclose with the s 424A letter, a copy of the Business Visa Application. 11 The appellant's complaint was that the Tribunal failed to put to the appellant for comment, or failed to provide him, a copy of the application for an Australian business visa lodged on 27 March 2009 with the s 424A letter. The Business Visa Application was not before the Federal Magistrates Court. 12 This ground of review was dismissed by the Federal Magistrate.

APPLICATION TO THIS COURT 13 The Notice of Appeal filed in this Court on 10 January 2011 was substantially a reproduction of the amended application filed in the Federal Magistrates Court (see [10] above). The single ground of appeal in this Court was "that the Federal Magistrate erred in law by not finding that the … Tribunal made a jurisdictional error by failing to comply with s 424A of the … Act". 14 By written submissions filed on 17 February 2011, the appellant sought to file and serve an amended Notice of Appeal which included the following particulars to the single ground of appeal as follows: Particulars: (i) The Tribunal send the appellant a letter dated 2 November 2009 … purportedly pursuant to s 424A of the … Act. (ii) The Tribunal stated that the appellant business visa application included "documents relating to (the appellant's) employment and (the appellant's) planned deals with an Australian company that appear to be false". (iii) The Tribunal considered that the falsity or otherwise of these documents would be the reason, or a part of the reason, for affirming the decision that is under review. (iv) The Tribunal did not give the appellant clear particulars of this information. The Tribunal denied the appellant a meaningful opportunity to comment or respond. (Emphasis in original.) The First Respondent opposed the appellant being granted leave to file and serve the amended Notice of Appeal.

Analysis 15 The Federal Magistrate dealt with the appellant's complaint in a number of ways. 16 After setting out s 424A of the Act, the Federal Magistrate summarised the appellant's contention that the Business Visa Application (in addition to the documents provided as part of the Business Visa Application) constituted evidentiary material or documentation (as discussed in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]) and that particulars of that information ought to have been provided to the appellant for comment. In particular, the Federal Magistrate recorded the appellant's written submissions in the following terms: … it was contended that at the time the Tribunal wrote the s.424 letter it identified the business visa application as well as the business visa application documents as information for the purposes of s.424A of the Act and anticipated that such information was potentially dispositive of the [appellant's] claims for four separate reasons, which were said in written submissions to be as follows: (i) The timing of the application (27 March 2009) relative to the date of the claimed beatings by French Police (December 2008) and the Convocations (6 May 2009) might lead the Tribunal to infer that the [appellant] did not depart Cameroon to flee persecutory harm as claimed. (ii) If the marriage certificate was genuine, it suggested that the [appellant] had failed to marry [his partner] because he was already married, and not because of any threats from tribal elders as claimed. If the letters of administration document was genuine, the [appellant's] father's death did not occur as claimed. (iii) If the documents were not genuine, the [appellant] or someone acting on his behalf had produced or manufactured fraudulent documents, and therefore other documents submitted by the [appellant] might also be fraudulent, leading the Tribunal to place little or no weight on those documents as evidence that the [appellant] is of adverse interest to the Cameroonian authorities as claimed. (iv) Irrespective whether the documents are genuine or false, the documents might lead the Tribunal to draw adverse inferences as to the [appellant's] credibility, particularly if the Tribunal disbelieves some or all of the [appellant's] claims in relation to the making of travel arrangements to Australia. 17 Relevant extracts from the s 424A letter were then set out: see [47] of the Federal Magistrates reasons for decision. Those extracts identified the manner in which the Tribunal had put the matters to the appellant. There were two headings - "The information" and "The information is relevant because". 18 Of central importance to the current appeal is the passage in the s 424A letter which states that: Your business visa application was lodged with the Australian High Commission in Pretoria on 27 March 2009. It includes documents relating to your employment and your planned deals with an Australian company that appear to be false. As discussed at the hearing, it also includes a marriage certificate, 2 birth certificates and letters of administration (Attachment A). They indicate, among other things: (a) you married a [named person] on 2 February 2005, (b) you had 2 children, [named person] (DOB 9 November 2005) and [named person] (8 January 2007), and (c) your father died in 1982. 19 The Federal Magistrate recorded that: 1. the appellant acknowledged that the Tribunal had put to the appellant in its s 424A letter the fact that his Business Visa Application was lodged on 27 March 2009 and that it included documents that appeared to be false and included documents that indicated certain things about his family composition and that his father died in 1982; and 2. the appellant responded to the s 424A letter through his solicitor in part in the following terms: I am instructed that on 2 November 2009 my client spoke with his brother, [named person] … and [named person] communicated that his mother spoke to an agent and gave him money from a partial sale of her farm, from family members, friends, relatives and church members. [Named person] communicated that his mother followed the agent's instructions in obtaining the visa and that it was the agent who compiled the fraudulent documents. I am instructed: a) Any delay in applying for the business visa application was as a result of his mother struggling to obtain to get money to pay to the agent. b) The documents are not genuine. c) The Convocation, Arrest Warrant and Wanted Notice are genuine documents and my client says that the police station who issued the same can verify the authenticity. … It will be necessary to return to consider the contents of the solicitor's letter in further detail later in these reasons for decision. 20 Two aspects were relied upon by the appellant before the Federal Magistrate. First, that under s 424A of the Act, the Tribunal was obliged to put to the appellant for comment a copy of his Business Visa Application and, secondly, that the Tribunal was obliged to "enclose with the s 424A letter", a copy of the Business Visa Application. The Federal Magistrate dismissed both grounds: at [59].

Ground One 21 The Federal Magistrate correctly stated that the obligation under s 424A of the Act arises in relation to information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. First, a document is not information: Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at [59] and SZLPO v Minister for Immigration and Citizenship (No 1) (2009) 177 FCR 1 at [111]. Secondly, s 424A(1) of the Act may only require the Tribunal to provide "clear particulars" of any information to which it applies, not any document referable to those particulars: SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361 at [24]; (see also SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]). The Federal Magistrate acknowledged that in some circumstances the obligation to comply with s 424A of the Act may require a Tribunal to disclose a whole document; however, the Federal Magistrate was not satisfied that this was such a case: see SZNKO at [18] - [23]. 22 Thirdly, to the extent that the Business Visa Application contained information, the Federal Magistrate found that the Tribunal put that information to the appellant in its s 424A letter. In particular, the Federal Magistrate found that the s 424A letter: 1. stated that the timing of the Business Visa Application may lead the Tribunal to infer that the appellant did not depart Cameroon to flee persecutory harm from incidents in December 2008; and 2. stated that the fact that the application was lodged with the Australian High Commission in Pretoria as well as the falsity of documents and the discrepancy between information in the documents accompanying the application and in the appellant's evidence before the Tribunal may lead the Tribunal to possibly disbelieve some or all of the appellant's claims that he relied upon his mother to arrange transport to Australia. 23 Fourthly, the Federal Magistrate found that the Tribunal did not attribute the whole of the Business Visa Application to the appellant and, instead, referred to the fact that the appellant used his own passport, departed from Cameroon six weeks after the Australian visa was granted and found that he was involved in the preparation of the application and travel arrangements. Put another way, the Tribunal did not accept that the appellant's mother made all the arrangements without his knowledge right up to departure. The Tribunal found that his delayed departure was a strong indication that he did not flee persecution. All that information had been put to the appellant. 24 Fifthly, the Business Visa Application was not before the Federal Magistrates Court. No part of the text or content of the application was identified as "information" apart from the date and fact of lodgement and the supporting documents, all of which were put to the appellant for comment. 25 This appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error: Allesch v Maunz (2000) 203 CLR 172 at [23]. The appellant must demonstrate that the judgment under appeal is a consequence of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13] - [15]. 26 In relation to Ground One, for the reasons given by the Federal Magistrate I can identify no appellable error. Section 424A(1) requires the Tribunal to give clear particulars of information to an applicant. Here, it did. This appeal ground should be dismissed.

Ground Two 27 Ground Two must also fail. It stands or falls with Ground One. This was not a case where it was necessary for the Tribunal to provide a copy of the whole of the Business Visa Application to the appellant in order to satisfy the requirements of s 424A(1) of the Act: see Nader at [59] and SZLJC at [24].

Amended Notice of Appeal 28 As noted earlier, immediately before the hearing of this appeal, Counsel for the appellant sought to raise for the first time an argument that the Tribunal had erroneously concluded that the appellant had stated that all supporting documents provided with the Business Visa Application were fraudulent. The appellant relied on the following passages from the Tribunal's reasons: The Tribunal wrote to the [appellant] on 2 November 2009, inviting his comments/responses to information that the Tribunal considered would, subject to any comments/responses he made, be the reason, or part of the reason, for affirming the decision under review. Essentially, the information covered the following: … The business visa application lodged on 27 March 2009 had attached to it supporting documents, including a marriage certificate, birth certificates for 2 children born in this marriage, and a document showing that his father had died in 1982. The Tribunal explained that this information was relevant because the timing of the application did not suggest that it was linked with the claimed harm; if the documents are genuine, they suggested that the [appellant] was indeed married; if the documents are not genuine, they showed the manufacture of fraudulent documents, including with official stamps; and in either case, they may bring into question the [appellant's] credibility. … On 9 November 2009, the [appellant] provided his comments/responses and further information. These are, in summary: … The [appellant] has learned that, while the supporting documents for his business visa application are fraudulent, the convocation, arrest warrant and wanted notice are genuine. (Emphasis added.) 29 In fact, as noted earlier (see [18] above), the s 424A letter identified at least two groups of documents attached to the Business Visa Application, namely (1) documents in relation to the appellant's employment and planned deals with an Australian company that appear to be false, and, (2) a marriage certificate, two birth certificates and letters of administration. The last group of documents were Attachment A to the s 424A letter. 30 As noted earlier (see [19] above), in the solicitor's response to the s 424A letter to the Tribunal under the heading "Business visa application documents", the appellant's solicitor stated that she was instructed that the appellant's relative had communicated to him that: 1. "… it was the agent who [had] compiled the fraudulent documents"; and 2. "[t]he documents are not genuine". 31 Counsel for the appellant submitted that the Tribunal failed to comply with s 424A of the Act because it did not provide "clear particulars" about why the Tribunal thought the first category of documents (see [29] above) were false with the result that the appellant was not in a position to respond to the allegation of falsity when he did not know the basis of the falsity. In further support of that contention, the appellant referred to his statement to the Tribunal that he did not forward the Business Visa Application and therefore had no knowledge of its contents. I reject those submissions. I can identify no jurisdictional error in the way in which the Tribunal dealt with the s 424A letter and the response. 32 First, as noted at [18] above, under the sub-heading "The information" in the section dealing with the "Business Visa Application Documents", the Tribunal described the documents that appeared to be false. Secondly, under the heading "The information is relevant because", the Tribunal explained the significance to the appellant if the documents were not genuine in the following terms: If these documents are not genuine, they suggest that you (or someone acting on your behalf) have had fraudulent documents, including official documents with stamps, manufactured. The Tribunal may take into account your access to such materials in assessing the more recent documents that you have submitted, such as the convocation (summons), the arrest warrant and the wanted notice, and accordingly place little or no weight on these documents as evidence that the Cameroon authorities have an adverse interest in you. 33 The solicitor's response to the s 424A letter responded directly to these allegations: see [19] and [30] above. The letter adopted the same headings as the s 424A letter. Under he heading "Business Visa Application Documents", the letter: 1. said it was based on instructions; 2. conceded that it was an agent that compiled the fraudulent documents; 3. conceded that "the documents were not genuine"; and 4. identified three genuine documents - the convocation, the arrest warrant and the wanted notice. 34 In these circumstances, I accept the submissions of the First Respondent that the Tribunal complied with its obligations under s 424A of the Act. It provided clear particulars of the information and its significance. Moreover, it was otherwise entitled to accept at face value the clear and unequivocal reply of the appellant's solicitor to the s 424A letter. If the solicitor's letter did not accurately record the appellant's instructions, then as Counsel for the appellant rightly conceded in his written submissions, that alleged error predates any alleged error by the Tribunal. The operation of s 424A(1) is to be determined in advance and independently of the Tribunal's particular reasoning on the facts of the case: SZBYR at [17]. In other words, the documents before the Tribunal included the solicitor's response to the s 424A letter in the form in which it was sent to the Tribunal. If there was an error, it was not an error of the Tribunal but of the solicitor. 35 Moreover, this ground of the amended Notice of Appeal seeks to introduce a ground of appeal not included in the review application before the Federal Magistrate: see Coulton v Holcombe (1986) 162 CLR 1 at 7 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. I would not have granted leave for the appellant to rely upon this new ground. This proposed ground of appeal would have no prospects of success. 36 The appellant has not established that the Tribunal's decision was affected in the manner contended, let alone in a manner sufficient to demonstrate jurisdictional error: VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 at [56].

CONCLUSION 37 I would dismiss the appeal. The appellant will be ordered to pay the First Respondent's costs of the appeal to be taxed in default of agreement. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (14)

Cited By (2)