Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR
Outcome: followed
shall consider first the question whether each of the new points sought to be raised on behalf of the appellant has a reasonable prospect of success. The first of these points arises from the following passage in the Tribunal's decision: "And while claiming in his protection visa application that his mother and sister were attacked with iron rods and wood and were admitted to hospital with severe injuries but on 12 August 2001 his mother died, at the hearing the Applicant did not make this claim but rather attributed the death of his mother to his claim that Ravi's family destroyed his house and this adversely affected his mother who then passed away." Mr Jenkins submitted that the state of the appellant's visa application, and specifically the absence therefrom of the explanation later advanced for the death of his mother, amounted to 'information' within the meaning of s 424A of the Act . He supported that submission by reference to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. He submitted that, in the circumstances, the Tribunal was obliged under s 424A to provide the appellant's visa application to him in writing, and to invite the appellant, in writing, to comment upon it. Mr Jenkins submitted that, for these purposes, it was not necessary for him to submit that s 424A(2) required the explanation ordained by s 424A(1)(b) also to be in writing: it was clear, he submitted that the visa application had not been given to the appellant in writing, and that he had not been invited, in writing, to comment upon it. Mr Reilly submitted that this new point was of doubtful merit. He submitted that, assuming that the visa application was 'information' for the purposes of s 424A(1) , when the Tribunal's decision was properly understood, it could not be said that the Tribunal considered that that information would be the reason, or a part of the reason, for affirming the decision under review. He submitted that, in the passage which I have set out above, the Tribunal was doing no more than noting its awareness of two different explanations which had been put forward by the appellant for his mother's death, purely as a matter of record, as a preliminary to moving forward and determining the case by reference to the explanation put forward at the hearing. Mr Reilly emphasised that the Tribunal, in relation to the original claim made by the appellant in his visa application, said that the appellant "did not make this claim", which was, in his submission, a clear statement that the Tribunal was not determining the matter by reference to that claim. Mr Jenkins' point was that it appeared that the Tribunal had taken into account the discrepancy between the two explanations offered by the appellant as to the death of his mother as a matter which had an adverse impact on the appellant's credibility. He pointed to a number of passages in the Tribunal's decision in which the Tribunal found that the appellant was not credible. It is clear that the credibility of the appellant was a significant element in the Tribunal's decision and, if the discrepancy between the two explanations offered by the appellant for the circumstances in which his mother died is to be regarded as an element in the Tribunal's general assessment of credibility, there would be an argument of apparent force that that discrepancy, and the view which the Tribunal took of it, constituted part of the reason for affirming the decision under review. Mr Reilly, however, took me to each of the passages in the decision in which the Tribunal had stated in terms that the matter under discussion impacted adversely on its assessment of the credibility of the appellant. There were several such passages. By contrast, as Mr Reilly submitted, in the passage dealing with the two explanations offered by the appellant for the death of his mother, the Tribunal says nothing in terms about the matter of credibility. In his submission, the Tribunal should be taken at its word, and there should be no ready assumption that that passage was relevant to its consideration of the matter of credibility or became part of its reason for affirming the decision under review. Mr Jenkins rejoined that the reason, or each part of the reason, which the Tribunal had for affirming the decision under review should be ascertained by a reading of the decision as a whole, rather than by the more narrow process of taking only the express words used in immediate conjunction with the passage in question. In this respect, he relied upon the following words of Weinberg J in SZEEU (at [164] [165]): "It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person's claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. The possibility that the similar claims information contributed to the Tribunal's rejection of the appellant's claim cannot realistically be excluded. The appellant's credibility was of critical importance to his claim. Any 'information' that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played 'a part' in the decision." Mr Jenkins submitted that the possibility that the Tribunal's thinking was influenced by the circumstance that the appellant's visa application (the original 'information') set up a different explanation for the death of his mother could not be excluded. Mr Reilly also derived support, he submitted, from SZEEU. He drew my attention to the following words of Allsop J (at [216]): "That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. 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 (for which Paul and VAF appear to call) 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. The above tasks of assessment or interpretation of the Tribunal's reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ." Mr Reilly particularly stressed that the mere fact that the Tribunal mentioned something in its decision does not mean that it constituted the reason, or part of the reason, for affirming the decision under review. In deciding the question of 'a reasonable prospect' in relation to the first of Mr Jenkins' two new points, the first matter to consider under s 424A is whether the inclusion in the appellant's application for a protection visa of an explanation for the death of his mother which differed from that later stated by him at the hearing before the Tribunal was 'information' within the meaning of the section. Mr Reilly did not argue that it was not, and I believe that he was well-justified in adopting that course. What Mr Jenkins proposed was 'information' in the present case cannot, in my view, be relevantly distinguished from the kind of thing which the Full Court held to be 'information' in the case of Mr SZBMI in SZEEU . The next matter to consider is whether this information was considered by the Tribunal to be the reason, or part of the reason, for which it affirmed the decision under review. In the decided cases in this Court, the approach has been taken that the actual reason, or part reason, for which the Tribunal has affirmed a decision under review, as disclosed by an objective analysis of the Tribunal's printed decision in the case in question, must be treated as the reason which the Tribunal considered to be such for the purposes of s 424A. That approach is consistent with the submissions made in the present case, and I shall adopt it, both at the 'reasonable prospect' and at the level the ultimate merits of the matter, should leave to argue the new point be granted. By s 430 of the Act , the Tribunal was obliged to provide a statement of its reasons. Conformably with this requirement, the Tribunal's published decision contains a section headed 'Findings and Reasons'. It is in that section that one finds the passage which I have set out in par 6 above. That purely textual circumstance, however, is not conclusive. My task is 'to isolate what were the integral parts of the reasons for the Tribunal's decision': VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, [33], relied on by Allsop J (and apparently also by Weinberg J) in SZEEU : 150 FCR at 262 [216]. Nonetheless, the placement of the passage in the section of its decision where the Tribunal was ostensibly stating its reasons in compliance with s 430 of the Act does, in the context of the whole terms of the decision in the present matter, establish what I would call a prima facie case for concluding that the circumstance referred to in the passage was at least part of the Tribunal's reason for affirming the decision under review. It is evident that the appellant's credibility was a significant factor in the Tribunal's thinking, and that the passage in question does present an inconsistency between different stories advanced by the appellant at various times, albeit perhaps tenderly expressed. For the above reasons I consider that Mr Jenkins' first new point would, if permitted to be run in this appeal, have a reasonable prospect of success. Considering whether this point has a reasonable prospect of success, the first question is whether the matter which Mr Jenkins identified was 'information' within the terms of s 424A of the Act . In SZEEU , Moore J (at [18]-[20]) and, apparently, Allsop J (at [205]-[207]) accepted, and followed, the judgment of Finn and Stone JJ in VAF at [24]. In the light of these authorities, I should regard information as 'knowledge of relevant facts or circumstances communicated to or received by the Tribunal', but not including 'subjective appraisals, thought processes or determinations' or 'identified gaps, defects or lack of detail or specificity in evidence' or 'conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc'. In the passage to which I have referred at par 27 above, I do not believe that the Tribunal was referring to 'information' as so understood. Indeed, whether there were any other documents at all was a circumstance of which the Tribunal had no knowledge, other than the appellant's own assertion. Further, it was the appellant's continued refusal to make good on that assertion (thereby, the longer that went on, making it less likely that there was any 'information' at all) that gave the Tribunal cause to point out that his credibility might come into question. In this respect, the context in which the Tribunal pressed him, and warned him, should, in my view, be seen as the identification of gaps, defects, or lack of detail or specificity in the evidence in relation to the appellant's case before the Tribunal. Further, the very existence of these additional documents was something which lay only in the appellant's own assertion before the Tribunal. To the extent, therefore, that there was any 'information' involved here, it seems to me that it would inevitably be covered by the exception provided for in par (b) of subs (3) of s 424A. I also accept Mr Reilly's submission that the fact that the Tribunal warned the appellant that his continued failure to produce these documents might affect his credibility, and recorded the fact of that warning in its decision, does not mean that the matter constituted a part of the Tribunal's reason for affirming the decision under review. In the section of its decision headed 'Findings and Reasons', there is no further reference to this point and, to the extent that the Tribunal took the appellant's credibility into account and, as I have said, there were several such occasions this point appears not to have been relevant. Mr Reilly also submitted that there was a basis upon which the decision of the Tribunal might be justified, quite independent of any failure to follow s 424A. In this regard he referred to the observation by Allsop J in SZEEU at [231] [233]. In the hearing before the Tribunal, the appellant had identified his brother-in-law and his family as the ones who were likely to harm him if he returned to that part of India where he previously lived. The Tribunal said it was satisfied that if, for any reason, the appellant did not wish to return to that area, he would be able to move elsewhere and live in safety. This was, Mr Reilly submitted, a finding of fact upon which the Tribunal relied in the alternative as a basis for affirming the decision under review, and in no respect did it rely upon the Tribunal having recourse to information in relation to which there had been doubtful compliance with s 424A. However, whatever the merits of this point, being an alternative basis for the justification of the decision of the Tribunal as it is, I do not think it would be proper to take it into account at the point when I am considering whether the inherent merits of the new points being raised by Mr Jenkins are such that they would have a reasonable prospect of succeeding. I shall return to Mr Reilly's alternative basis at the appropriate stage of my full consideration of the first point. I turn then to a consideration of Mr Jenkins' first new point, namely, whether the Tribunal failed to comply with s 424A of the Act in relation to the passage for its decision set out at par 6 above. As I have said, Mr Reilly did not deny that the absence from the appellant's protection visa application of the explanation which he later gave for the death of his mother constituted 'information' within the terms of that section. The question for determination, therefore, is whether that information was the reason, or part of the reason, why the Tribunal affirmed the decision under review. In light of the authorities to which I have referred, particularly VAF , and the way that judgment was explained in SZEEU , I need to consider carefully the Tribunal's decision as a whole, I need to be conscious that the Tribunal's reasoning may not necessarily be linear, and I need to isolate the integral parts of the reasons of the Tribunal, paying due regard to the structure, layout and arrangement of the printed form of the decision, but ultimately identifying those parts at the truly deliberative, as distinct from the merely formal, level of the Tribunal's decision. The Tribunal commenced its written decision with a short paragraph setting out the factual background to the application before it. It referred next to the legislation under which it was operating, and to the definition of 'refugee' in the Refugees Convention. It set out what it identified as 'four key elements' in the definition. The next section of the decision was headed 'Claims and Evidence'. The Tribunal noted that it had before it the departmental file, which included the appellant's protection visa application and the record of decision of the delegate. It stated that it had also had regard to the material referred to in the delegate's decision, 'and other material available to it from a range of sources'. In this section of the Tribunal's decision, there are three internal sections, each identified by its own subheading. They are, in order, 'Claims in the protection visa application', 'Claims made in his application for review' and 'Claims made at the hearing'. I turn finally to the point raised by Mr Reilly to which I have referred at par 34 above. He submitted that there was a basis upon which the Tribunal's ultimate decision might be affirmed which was 'entirely independent of the failure to follow s 424A ' within the meaning of the judgment of Allsop J in SZEEU (150 FCR 214, [233]). The basis was that the Tribunal stated that it did not accept that the appellant would be subject to harm at the hands of Ravi and his family, no matter where he went to live in India. Indeed, it did not accept that even if Ravi, or members of his family or community, 'stumbled upon the applicant elsewhere in India' they would seek to harm him because he came from a minority community or for other Convention-related reasons. Referring to these findings, Mr Reilly submitted that, even if everything the appellant claimed about the fear which he held were accepted, and even if the nature of that fear could legitimately be linked to the Refugees Convention, if the appellant could have safely returned to some other part of India than the village in which his original home was situated, it could not be said that he was outside his country of nationality owing to that fear. The difficulty with this submission is that it is immediately confronted by the undoubted circumstance that the Tribunal's finding that the appellant could safely return to live in some other part of India could only be made if the appellant's own evidence in that regard were disbelieved, as it was. Indeed, in the lengthy paragraph in which the Tribunal dealt with this aspect, there were six occasions upon which the Tribunal said that it did not accept particular assertions, or evidence, on the part of the appellant. As I have held above, concerns as to the appellant's credibility lay at the core of the Tribunal's use of the inconsistency as between the two explanations proffered for the death of the appellant's mother. If the appellant's ability to return to India, and to live elsewhere than in his original village, was an alternative basis providing support for the Tribunal's decision, on no view could it be said that that basis was 'entirely independent' of the Tribunal's failure to follow s 424A of the Act . In circumstances, there will be a writ of certiorari quashing the Tribunal's decision of 24 March 2005, and a writ of mandamus commanding the Tribunal to hear and determine the appellant's application for a review of the decision of the delegate according to law. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 28 August 2006 Counsel for the Appellant: D Jenkins Counsel for the Respondent: T Reilly Solicitor for the Respondent: Phillips Fox Date of Hearing: 8 August 2006 Date of Judgment: 28 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1138.html