Case: SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: considered
The first ground of appeal substantially restates the second ground of review before Emmett FM. Before me, the appellant submits that her Honour erred in finding the obligations under s 424A(1) were not enlivened. Dr Azzi for the appellant submitted in summary: 1. Emmett FM erred in finding that inconsistency as between the claims in the visa application and the appellant's claims before the Tribunal played no part in the reasoning of the Tribunal. 2. Emmett FM erred in finding that the information was caught by the exclusion in s 424A(3)(b). 3 . The Tribunal noted that the appellant claimed in his visa application that he has "never been charged with any offence that was currently awaiting legal action". However the appellant did not give his original protection visa application to the Tribunal; rather it was given to the Tribunal by the Department pursuant to s 418. 4 . The appellant's evidence at question 6 of the visa application was not adopted by the appellant at the hearing before the Tribunal, and needed to be adopted by the appellant before being deemed to have been given to the Tribunal by the appellant: NBKT v MIMA [2006] FCAFC 195. 5. The fact that the Tribunal expressly referred to the information in the visa application indicated that the information was sufficiently important to warrant specific mention: SZEEU v MIMA [2006] FCAFC 2 ; (2006) 150 FCR 214 at 253. 6. The Tribunal also treated the information in the visa application as supportive of its conclusion that the appellant had not been charged with a killing of a person in Bangladesh: NBKS v MIMA [2006] FCAFC 174 at [74] . 17 Under s 424A "the Tribunal must give to the applicant 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". However, the obligation does not apply to: &#8226; information which the applicant gives the Tribunal, regardless of when that information is given: s 424A(3)(b) , McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 175; or &#8226; all information the Tribunal receives. The section only applies to information that the Tribunal considers "would form part of its reason for refusing the application for review". Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 40; McHugh J in SAAP 215 ALR at 175, Allsop J in SZEEU 150 FCR at 262. 18 As Allsop J pointed out in SZEEU 150 FCR at 262 however: One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A , without any additional requirement....that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. 19 In SZEEU 150 FCR at 263 where an issue of inconsistency of prior statement arose, Allsop J also observed: If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. The significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). 20 In the context of this ground of appeal, the following issues in the Reasons for Decision of the Tribunal are relevant: &#8226; the Tribunal considered the details in his original application, including that false charges existed against him, but the Tribunal noted that elsewhere in his application "he said that he had never been convicted of a crime or offence and that he had never been charged with any offence that was currently awaiting legal action (see question 6 on Pt B of the application form)" &#8226; the Tribunal noted that on 5 April 2005 the appellant had produced to the Tribunal "copies of what purport to be the following documents: o a letter from a lawyer dated 16 December 2004 stating that a criminal case has been lodged against the Applicant, that a warrant has been issued for his arrest, that if he is arrested he will be put in gaol for a long time, that '[y]our enemy party worker's [sic] are trying to doom your life' and that in the circumstances his life will not be safe in Bangladesh o an 'Ejahar' (petition for filing a case) submitted by a Sub-Inspector of Police on 5 September 2001 stating that he was on duty at Joypara College Road when a disturbance took place between the Awami League and the BNP in connection with the election in which a man named Salim Bhyan (sic), Senior Vice-President of Dohar Thana BNP, was killed. The deposition names the Applicant, identified as Vice-President of the Dohar Thana Juba League, as one of those involved o a First Information Report (the initial claim or complaint which is the basis of an investigation) made by the same Sub-Inspector on the same date in relation to the same incident o a warrant issued by a magistrate in Dohar on 5 January 2002 for the arrest of the applicant in relation to the same case o an order for the attachment of the movable property of the Applicant issued by a magistrate in Dohar on the same date in relation to the same case o a memorandum submitted by a Sub-Inspector of Police reporting the execution of the order on 28 January 2002 which states, somewhat curiously, that '[a]ll members of the accused were absconding' o an order sheet purporting to record orders made by a magistrate in Dohar in relation to the above case which somewhat curiously refers to 'the convicted accused' o a 'Charge Sheet' dated 25 July 2002 in relation to the same case repeating the content of the Ejahar referred to above o a Post-Mortem Report dated 7 September 2001 in relation to Salim Bhuyan (sic), identified as Vice-President of the BNP of Dohar PS (Police Station), stating that the deceased suffered a stab wound in his left upper chest." &#8226; the Tribunal also noted that the applicant produced an undated letter faxed to him from Bangladesh "purporting to be from Md Mahbubur Rahman, General Secretary, Bangladesh Awami League, Dhaka Zila Unit, certifying that the Applicant is an activist of the Jubo League and stating that the BNP and Jamaat-e-Islami took powering 2001 through a rigged election....and that as part of this the Applicant has been implicated in concocted manslaughter cases" &#8226; the Tribunal said that the appellant had told the Tribunal that, so far as he was aware, all the answers in his original application were correct and complete &#8226; the Tribunal stated "The Applicant said that the charge against him in relation to the killing of the BNP supporter on 5 September 2001 was still pending. I asked him why he had said in his original application that he had never been charged with any offence that was currently awaiting legal action. The Applicant said that he had not been guilty of the offence. I noted that the question asked whether he had been charged with any offence. The Applicant said that when he had made his original application he had not had the details of the charges against him. He said that it had only been after he had come to Australia that he had obtained these details. I noted that the Applicant had been living at his home in Joypara until July 2002. The Applicant said that he could only have obtained the details of the charges against him by going to the court or to the police station and then he would have been arrested" &#8226; the Tribunal said "I put to the Applicant that it was a little difficult for me to accept that, if the police had wanted to arrest him, they would not have been able to do so before July 2002. The Applicant said that it was true that the police had wanted to arrest him but he had been very fortunate" &#8226; The Tribunal said that it put to the applicant that "the information available to the Tribunal indicated that forged or fraudulently obtained documents were readily available in Bangladesh. The police would work in collusion with applicants for refugee status in supplying bogus papers.... The Applicant said that he did not reject this information but at the same time you would get fraudulent documents in any country in the world" 21 In relation to the alleged false charges against the appellant, the Tribunal found, in summary: &#8226; it preferred the appellant's evidence to what was said in the letters to the extent of any inconsistency &#8226; it did not accept that the appellant had in fact been charged in relation to the killing of Salim Bhuyan because: o he "continued to live in his home town, Joypara, sometimes staying at relatives' or friends' houses, until July 2002 and I found his evidence with regard to how he managed to evade arrest unconvincing" o although "the Applicant said that when they had come to his home to arrest him he had just run out by the back door and that he had been very fortunate", the Tribunal did not accept that the police would not have been able to arrest him before July 2002 if they had wanted to o the appellant stayed in Bangladesh for a further two years after July 2002 o the appellant's conduct in working for a company which was his party leaders' organisation did not suggest that he was in fear of being arrested o despite the appellant's fear of being arrested he applied through a broker for a passport in what he said was his true identity, and the passport was issued in June 2004 o although "as the Applicants said there must be some genuine documents in Bangladesh.... I do not accept that he has been charged with the killing of Salim Bhuyan".