Case: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
Outcome: referred to
The obligation imposed on the Tribunal by s 424A(1)(a) is an obligation to provide "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision ... under review." This provision requires the Tribunal to alert an applicant to specific information which it considers would be the reason for dismissing the applicant's claim. The Tribunal cannot resort to generality when the information it has relates to specific conduct by specific individuals and it is that conduct which is relied on by the Tribunal as the reason or part of the reason for it dismissing an appeal: see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [31] - [36] . 17 The legal issues raised by this case are somewhat different and, insofar as the researches of counsel and my own review of authority would suggest, are novel. The appellant's allegation of lack of specificity in this case focuses on the terminology adopted by the Tribunal when it sought information from the appellant in its letter of 23 January 2006. His contention is that the reference to "[y]our profile as a leader and activist in Burma ..." is insufficiently precise because it fails to make clear what information is comprehended by the word "profile". In particular, it is contended that the reference to the appellant's "profile" does not make clear to him that the Tribunal had in contemplation an adverse finding that he was not known as an Indian leader of demonstrations in 1987 and that a reason for this conclusion was that the claim was made for the first time at the review stage of his application. The respondent Minister contends that the appellant can be taken to have understood what was meant by the reference to his "profile" by reason of the various exchanges during the hearing before the Tribunal during which the member invited comment from the appellant about him being an "Indian leader". In one such exchange, for example, the member said to the appellant: "The Indian leader this has only been raised more recently. In your first lot of documents, you said you took part. You were a bystander. You were hit and you took part because you got angry. But there is no talk about you being an Indian leader or outer head. Its something that has come up more recently I think. I could be wrong. I was wondering why its only been raised more recently rather than in your initial statement." 18 Whether or not information has been identified with sufficient specificity for the purposes of s 424A(1) of the Act will be a matter of fact, degree and context depending on the circumstances of the case. Past dealings between an applicant and the Tribunal may have involved the adoption of terminology which, although it may lack clarity if addressed to a third party, will readily be comprehensible to the applicant. 19 In this case, the reference, by the Tribunal, to the appellant's "profile" and changes to it between the time he made his original application and the time at which he was preparing submissions to the Tribunal and appearing before it can reasonably be seen to comprehend his claimed profile as an Indian leader. He used the term "profile" in this way in his statutory declaration of 14 December 2005. The declaration read in part: "The Burmese authorities are very suspicious of Burmese who have been overseas in western countries such as Australia, particularly if they have a past and significant profile in Burma like myself. I wish to add by way of clarification that my involvement in the protest of 6 August 1987 was very important. I was a leader of this protest was in the front line. I was known by the authorities as "the Indian leader" because of my appearance and ethnicity. So at the time, the authorities considered me a leader. The same is the case later in the 8/8/1988 protest, where I again took a leading role in the demonstrations. Protesters at my house ("the Indian's house") before going to the demonstrations. This is why I continue to be monitored and pursued by the authorities." However, a more extensive "profile" was described in written submissions lodged with the Tribunal five days later. The relevant submission was that the appellant had "a profile as an active and prominent political dissident and pro-democracy activist, as well as having pro-Western sympathies." That document also contained reference to the appellant's alleged "profile as security guard with the US Embassy and political dissident." 20 The Tribunal sought to meet its obligation under s 424A(1)(a) by advising the appellant that it had information that would, subject to any comments which he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. One item of information which was identified was the appellant's "profile as a leader and activist in Burma [seeming] to have increased in the time [since he] first arrived in Australia and claimed protection and [his] more recent statements at the hearing." I have come to the view that the language employed by the Tribunal has failed to satisfy its obligation under s 424A(1)(a) of the Act because it fails to alert him with sufficient specificity to the adverse material on which it ultimately relied, in part, to reject his claim. The reference to the appellant's "profile as a leader and activist in Burma" does not unambiguously draw his attention to the view that he "was known as an Indian leader of the demonstrations". The profile claimed by the appellant was much broader in its reach ("an active and prominent political dissident and pro-democracy activist, as well as having pro-Western sympathies."). Moreover, the wording employed by the Tribunal lacks the necessary clarity. It is open to the construction that it is referring to an increase in the appellant's profile in Burma in the period between his arrival in Australia in March 2004 and the hearing before the Tribunal on 19 December 2005. The Tribunal does not make it clear that the point of its concern is that the appellant's claims had appeared to it to have changed in Australia in that period. The appellant's response to the Tribunal's request to comment on this item of information led to a denial that his profile had increased "in the way suggested". It does not appear that the appellant and his advisors understood that the Tribunal was directing particular attention to the claim that he was perceived to be "an Indian leader". 21 Although the point was not raised or relied on by the appellant, I would also express my doubt that the Tribunal satisfied its obligations to the appellant under s 424A(1)(b) of the Act . The Tribunal advised the appellant that the reason that the information identified in its letter of 23 January 2006, "is relevant [is] because it indicates some inconsistent account in relation to these aspects of your claims and evidence at different stages of the proceedings." Such a statement was apt to mislead if it was intended to refer to alleged inconsistencies between what the appellant said at the time at which he applied for a protection visa and what he told the Tribunal in written submissions and orally. No "proceeding" was extant at the time of the original application.