SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 (20 February 2008)

Last Updated: 25 February 2008

FEDERAL COURT OF AUSTRALIA

SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1

MIGRATION LAW – notice of invitation to appear issued by Tribunal under s 425A of the Migration Act 1958 (Cth) communicated effect of s 426(2) – information forming part of Tribunal’s reason to affirm delegate’s decision given to the appellant pursuant to s 424A – failure to contact appellant after non-attendance at hearing did not subvert invite issued under s 425.


Migration Act 1958 (Cth) ss 424A, 425, 425A, 426, 426A


Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 cited
SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724 considered
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 considered
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 cited
SZJBA v Minister for Immigration and Citizenship (2007) 98 ALD 270 distinguished




















SZICU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1473 OF 2007

TAMBERLIN, FINN AND BESANKO JJ
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1473 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZICU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	TAMBERLIN, FINN AND BESANKO JJ
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1473 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZICU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	TAMBERLIN, FINN AND BESANKO JJ
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1 This is an appeal from a judgment of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal ("Tribunal") which affirmed the decision of a delegate of the first respondent not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act") .

2 The appellant is a citizen of India who lodged an application for a protection visa on 8 November 2004. He claims that if he is returned to India there is a real chance that he would be persecuted.

3 The appellant’s claim is that he was born in 1984 in Idairuppu in the Tanjore district of India, and is a Hindu who worked as a farmer up until December 1998. His father was an active member of the political party known as CPI (ML), which is a branch of the Communist Party of India, and he supported the struggle for farmers’ rights. During a rally on 1 May 1994, the appellant’s father was arrested along with some members of the CPI (ML) after protesters and police clashed physically. His father was kept in gaol, but after release in 1996 was unable to find work. Subsequently, the appellant’s father became a political activist, at one stage gathering support for a boycott of a state election, and was arrested and physically assaulted for this activism. One serious assault resulted in the death of the appellant’s father.

4 The appellant claims that he became an active member of the CPI (ML) and that he coordinated party meetings in his local village, and as a consequence began to attract public attention. In early 2000, he was arrested by local police for his activism. The appellant’s party was banned and he was sentenced to gaol until his release in June 2001. After returning to his village, the appellant could not find his family, and he fled the village to hide in forests where the police would not pursue him. He also claims that he was eventually arrested again in April 2002 and, he says, was subjected to false accusations and brutal attacks by the police. One of these attacks required hospitalisation, but, since the appellant believed that the police asked his doctors to kill him, he ran away. The appellant said that, until 2004, he hid in forests and villages. Ultimately, a friend in the CPI (ML) arranged his visa to escape to Australia. The appellant believes that police and others will kill him anywhere in India if he returns.

5 The delegate of the first respondent refused the appellant’s application for a protection visa. Essentially, the reason for the rejection was that, since the appellant had no difficulty obtaining an Indian passport, he was "not of adverse interest to the authorities".

6 The appellant’s application for review to the Tribunal was dated 12 August 2005. In it he nominated an authorised recipient. That person received correspondence from the Tribunal, including a letter dated 4 November 2005 inviting the appellant to a hearing of the Tribunal to be held on 25 November 2005. The appellant did not attend the proposed hearing on 25 November 2005. The Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it. In doing so, it exercised the power in s 426 of the Act. The Tribunal affirmed the delegate’s decision not to grant a protection visa to the appellant. A record of the Tribunal indicates that the appellant’s authorised representative spoke to administrative staff at the Tribunal on 10 November 2005 and advised the staff member that the appellant would attend the hearing and that he, the authorised representative, would send the "Response to Hearing Invitation" form "by tomorrow". Neither of those things occurred.

7 The issues arising for determination on this appeal are:

1. whether the Tribunal failed to comply with s 426(1)(b) of the Act by not setting out the effect of s 426(2) in the notice it issued to the appellant under s 425A;

2. whether the Tribunal was required under s 424A of the Act to provide particulars to the appellant of certain information, namely, that the appellant’s passport showed that he left India legally on a passport issued in his own name; and

3. whether the Tribunal properly issued an invitation to the appellant to appear at the hearing before it pursuant to s 425 of the Act.

GROUND ONE – NOTICE AS TO EFFECT OF SECTION 426(2)

8 Section 425A of the Act provides that an applicant who is invited to appear before the Tribunal must be given notice of the day on which, and the time and place at which, to appear. Section 426(1) provides that the notice must contain a statement as to the "effect" of s 426(2) of the Act. Section 426(2) provides that an applicant may, within seven days of the Tribunal’s notice, give the Tribunal written notice that he or she wants the Tribunal to obtain oral evidence from another person.

9 In the present case, on 4 November 2005 the Tribunal sent to the appellant and he received a written notice of invitation to appear in these terms:

‘Dear [SZICU]

Your Application for Review

The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

If you want to come to a hearing it will be on:

Date: Friday, 25 November 2005

Time: 12:00 PM ...

Place: Level 11, 83 Clarence Street, Sydney

Important information about your hearing

• The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.

• If you have a passport you should bring it to the hearing.

"Response to Hearing Invitation" form

Please read and complete the enclosed form carefully and:

• tell us if you are coming to the hearing or not coming to the hearing

• complete the "Witnesses" part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name

• send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator

• answer all the other questions on the form and return the completed form and any new documents or written arguments by 11 November 2005.

We have enclosed a brochure that explains what will happen on the day of the hearing. You can also find more information about the Tribunal and its procedures on our website: www.rrt.gov.au ....’

(Emphasis added.)

10 The "Response to Hearing Invitation" form referred to in the above notice of invitation to appear contained the following notation:

‘If you want the Tribunal to take evidence from a witness or witnesses, please give their names, and brief details of what evidence you expect each witness to give at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. A witness should give evidence to help show why you are a refugee and need a protection visa.’

11 The appellant submits that the notice of invitation to appear did not expressly inform him that, pursuant to s 426(2), he had seven days after notification to give to the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from certain persons. The appellant says that the sentence in the notice of invitation to appear, "You can also ask the Tribunal to obtain oral evidence from another person or persons" was not sufficient, and that the attached "Response to Hearing Invitation" form did not make it clear that failure to respond within the seven days would mean that the appellant would no longer be able to request the Tribunal to obtain oral evidence from a person specified by him. This was despite the notice of invitation to appear expressly stating that the appellant should "return the completed form and any new documents or written arguments by 11 November 2005", which was seven days after the date on which the notice of invitation to appear was sent. The appellant also says that the notice of invitation to appear was deficient because it did not inform the appellant that he could request the Tribunal to obtain evidence from another person otherwise than by filling in the "Response to Hearing Invitation" form.

12 On this point, the Federal Magistrate found that the notice of invitation to appear together with the attached "Response to Hearing Invitation" form notified the appellant in substance of the effect of s 426(2) because it informed the appellant not only of the means by which he should state his desire that the Tribunal obtain evidence from another person, but also of the statutory seven day period to reply.

13 A decision which both the parties and the Federal Magistrate discussed was SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724, in which Moore J considered what amounts to a notification of the "effect" of a provision. The issue in that case was whether the effect of s 426A of the Act was conveyed by a notice which stated "If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice."

14 In that case his Honour observed at [27]:

‘Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal.  In my opinion the notice conveys this.’

15 The appellant in the present case submits that the notice of invitation to appear must clearly alert an applicant to the consequences of a failure to appear or failure to take a course of action. It is said that the decision in SZCQR [2005] FCA 724 is distinguishable because in that case the notice did alert the applicant to the consequences.

16 In our view, in the present circumstances there is no substance in the submission of the appellant in relation to this ground of appeal. The notice of invitation to appear, together with the attached "Response to Hearing Invitation" form, made it quite clear that both the completed form and any new documents or written arguments had to be returned to the Tribunal by 11 November 2005. Importantly for the purposes of making the effect of s 426(2) clear to the appellant, the notice of invitation to appear expressly stated that it was necessary to complete the section of the attached form dealing with witnesses if the appellant wanted the Tribunal to obtain evidence from another person, and that the Tribunal was not required to obtain that evidence.

17 In these circumstances, we are satisfied that the effect of s 426(2) of the Act was conveyed to the appellant. There is nothing in the notice of invitation to appear or the "Response to Hearing Invitation" form which might create any real possibility of confusion.

18 Accordingly, this ground of appeal fails.

GROUND TWO – PROVISION OF INFORMATION UNDER SECTON 424A

19 Section 424A(1)(a) of the Act requires that the Tribunal give an applicant particulars of any information that it considers would be the reason, or part of the reason, for affirming a decision under review. The present ground of appeal alleges that the Federal Magistrate erred in concluding that the Tribunal was not obliged under s 424A of the Act to provide particulars to the appellant of the information that the appellant’s passport showed that he left India legally on a passport issued in his own name.

20 By way of contextual background to this ground the following needs to be noted. (i) The information concerning the appellant’s passport details and his departure from India were disclosed in his visa application and the attached statutory declaration. (ii) The delegate in refusing the visa noted that country information indicated that no-one of concern to the authorities would be able either to acquire a passport in his own name or to leave the country undetected using such a passport, and considered that the fact that the appellant was able to do so indicated he was of no interest to the authorities. (iii) In his application for review of the delegate’s decision the appellant gave as his reason for making the application "My passport" and he indicated that he would later be submitting a statement. He did not do so. (iv) The s 425 hearing invitation indicated that the Tribunal had considered the material before it in relation to the visa application but was unable to make a decision in his favour on that information. (v) The appellant did not attend the hearing and did not provide material to the Tribunal in support of his application. (vi) In its reasons for decision, the Tribunal commented:

‘The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention if he returns to India. The Applicant was on notice, from the Tribunal’s letter of 4 November 2005, that the Tribunal was unable to make a favourable decision on the information before it, yet he did not attend the hearing. The Tribunal also notes that the Applicant wrote, when he sought review with the assistance of a registered migration agent, that a statement would follow, but as at the date this decision was signed, more than three months later, nothing has been submitted. Although the Applicant made a number of serious claims about his political activities, about being arrested and seriously mistreated by the police as a result of those activities and apparently at the behest of the "rulers", he provided no documentary evidence to support any aspect of his claims, nor any country material to support the assertions he made about the treatment of various persons and groups referred to in his account, and importantly, as he failed to attend the Tribunal hearing, the Tribunal has not had the opportunity to test any of his claims, or even to clarify them.

The Tribunal finds the Applicant’s claims vague in many respects, and lacking useful detail, as well as unclear. For example it is unclear what exactly the Applicant’s most recent political activities were and on behalf of which party or group, the CPI (ML) or the Tamil Liberation Force, there is no information whatsoever about the charges he was convicted of in 2000, or about the "several fake cases" he was charged with when arrested in April 2002, or about when and how he escaped from the hospital, or about how he managed to survive hiding in the forests and villages of AP state for some two years and yet could afford to travel to Australia. It is also unclear why the Applicant didn’t leave India earlier if he feared persecution and was in hiding, given that he’d had a passport since October 2003. As the delegate noted, the Applicant claimed to have obtained a passport without difficulty in October 2003 yet he was in hiding from the authorities, and to have left India legally in September 2004, yet independent country information does not suggest that he could do either of these things, if as he claimed he was of such adverse interest to the authorities that he was in hiding for over two years; these issues too could have been explored had the Applicant attended the hearing. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.’

21 As appellate decision in this court now stands – the High Court has left open its correctness: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [16] – the Tribunal was obliged to give the appellant particulars for any "information" it considered to be the reason, or part of the reason, for affirming the decision under review and it would not be relieved of that obligation under s 424A(3)(b) if that information was provided in the appellant’s visa application but was not later provided to, adopted in, or was the subject of answers to questions in, the Tribunal: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; see also Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162.

22 The appellant’s contention is that information concerning his passport and departure from India, though provided in his visa application, was not provided to the Tribunal. It thus was information that fell within s 424A(1). It ought to have been given to the appellant in accordance with that subsection.

23 Section 424A(3)(a) excludes from s 424A(1) the giving to an applicant of information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. For this reason the Tribunal was not obliged to give the appellant the country information concerning departure from India on a legally issued passport in one’s own name, which gave rise to the "issue" which the Tribunal indicated in its reasons it could have explored with the appellant at the hearing.

24 In SZBYR [2007] HCA 26; 235 ALR 609, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ considered aspects of the operation of s 424A(1)(a). Of present relevance, their Honours observed at [17]-[18]:

‘17. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration [the alleged s 424A(1) ‘information’] ‘would be the reason, or a part of the reason, for affirming the decision that is under review’. The statutory criterion does not, for example, turn on ‘the reasoning process of the tribunal’, or ‘the tribunal’s published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. 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.

18. 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 [2004] FCAFC 123; [(2004) 206 ALR 471 at 477] 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 ...’

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. 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. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.’

(Emphasis added.)

25 It is not necessary for present purposes to enter upon the question as to how far, in light of the above observation, a court can or should enter upon a consideration of the Tribunal’s actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to making that decision had arisen.

26 In the present appeal the alleged s 424A(1) "information" was that the appellant’s passport showed that he left India legally on a passport issued in his own name. That information did not in terms contain a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligation: cf SZBYR 235 ALR at [17]. On that question the passport was quite neutral. What undermined the appellant’s claim was not conveyed by the passport as such but by the country information which the Tribunal was not obliged to disclose because of s 424A(3)(a). It was that information which, but for the statutory exception, could be said in terms to provide part of the reason for the Tribunal’s decision in that it could cause the Tribunal to disbelieve the appellant’s claim to be of adverse interest to Indian authorities. The relevant "information" for s 424A(1) purposes, as SZBYR 235 ALR at [18] indicates, is not to be found in disbeliefs arising from a process of reasoning applied to the evidence. If it is to be found in this matter it must be in the text of the passport itself. It is not.

GROUND THREE – INVITATION UNDER SECTION 425

27 On the hearing, the appellant sought leave to add a further ground not pleaded in the Notice of Appeal. Given leave, the appellant submitted that the Tribunal, having concluded that the appellant did not have a well-founded fear of persecution and having observed that the issues could have been more fully explored if the appellant had attended the hearing, had an obligation to take steps to further investigate the questions before it. It is said that the Tribunal was in error not to explore the issues (particularly those concerning the charges brought against the appellant, his need to hide for a prolonged period of time and his ability to acquire a valid passport and depart India lawfully) by taking the simple administrative step of contacting the appellant. The appellant argues that, in circumstances where he had expressed an intention to attend the Tribunal hearing, the Tribunal should have taken further administrative steps with respect to his non-attendance and investigated why he did not ultimately attend. This failure, it is said, amounts to an effective subversion of the invitation to attend the hearing issued under s 425, and thus constitutes jurisdictional error.

28 In our view, there is no substance in these submissions by the appellant. There was no ambiguity about the proposed time and place of the hearing before the Tribunal. There is no suggestion that the appellant was unaware of these details. In accordance with s 425(4) of the Act, the Tribunal had issued an express warning as to the consequences of a failure to appear. The appellant had a full opportunity to appear and present his case. Accordingly, the Tribunal was entitled to proceed on the material before it and was not required to investigate why the appellant had not appeared at the hearing.

29 The appellant relied in submissions on the decision of SZJBA v Minister for Immigration and Citizenship (2007) 98 ALD 270. In our opinion, that case is distinguishable from the present case because in that case there was a failure to inquire into readily available and centrally relevant information, which is not the situation in the present case. Having regard to the procedural history in the present case, there was no apparent reason for the Tribunal to consider that further inquiries as to why the appellant did not appear would have been of any assistance to it in reaching a conclusion. The obligation imposed on the Tribunal by ss 425 and 425A of the Act is satisfied if the appellant is notified as to the time and place of the hearing.

30 Accordingly, this ground of appeal also fails.

CONCLUSION

31 As there have been no reviewable errors disclosed in the decisions of the Tribunal or the Federal Magistrate in this matter, this appeal is dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Finn and Besanko.

Associate:

Dated: 20 February 2008

Counsel for the Appellant:	Mr D Godwin
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 November 2007
Date of Judgment:	20 February 2008