Case: SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 ; (2006) 150 FCR 448
Outcome: followed
The appellant submitted that the learned Federal Magistrate erred in finding no jurisdictional error in the Tribunal's decision. In reference to his Honour's reasons for dismissing the claim of jurisdictional error, the appellant submitted that: ' [ s ] imply because the fact of the publication on the internet was raised at the [Tribunal] hearing and recorded in the reasons of the [Tribunal] does not mean that the [Tribunal] considered the effect of that publication when it adopted the earlier [Tribunal's] reasoning. If that information was in fact considered in this context by the [Tribunal] then [at] least some findings would be expected in respect of the likelihood that the information on the internet had come to the attention of the ... community in [the capital city] or the wider ... community [in the country of origin] '. 35 In this regard, the appellant argued that the structure of the Tribunal's reasons indicated that it had not in fact considered the likely effect of the internet publication on the substance of the parents' claims. The Tribunal made separate findings on the sur place claim and yet adopted the conclusion of the earlier Tribunal 'for the same reasons' in relation to the parents' claims. It was submitted that the Tribunal's treatment of the issue was insufficient. That the decision of the Federal Court Judge was in the public domain was a fact to be regarded as having been before the Tribunal. Nevertheless, the only basis upon which the Tribunal addressed the sur place claim, in response to the issue of the internet publication being raised by the appellant's father, was that independent information was available that unsuccessful refugee applicants who return to the parents' country of origin were not subjected to adverse attention or persecution for that reason alone . The appellant submitted that this exchange did not constitute a proper consideration of the effect of the internet publication on the substance of the parents' claims. 36 Further, the appellant argued that the content and structure of the written statements provided by the parents to the Tribunal demonstrated that the matter had been sufficiently articulated before the Tribunal in the parents' case. Whether the matter had been fully articulated is not determinative: rather, because the matter was sufficiently significant the Tribunal in the present case was required to make a finding on it having regard to the material before it. The decision in NABE mandated such a response, and contrary to that authority, the Tribunal Member had failed to make findings as to the content of the Federal Court Judge's decision, what relevant material had appeared on the internet, how long it had been on the internet, and who might have accessed it. As a matter of logic, and as a matter of necessary fact finding, the implications of the publication on the internet had a very significant role to play in determining whether the rumour about the parents could have gone further than their home neighbourhood, a suburb of the capital city, and therefore whether relocation by the parents was a viable option. In light of the failure to do so, the Tribunal had not considered the totality of the appellant's circumstances as it was required to do by the decisions in Guo (per the joint judgment of the High Court at 577-578) and Wu Shan Liang (at 294 per Kirby J, concurring). 37 The appellant also pointed to an issue of an admitted factual error that his parents had made in their claims to the Tribunal. In their written statement to the Tribunal, the appellant's parents said: 'When we seeked judicial review at one stage, at the Federal Court of Australia, the decision was published on the internet with our real names and work places and the name of the [dissident group] supporter who worked at [the company] .' (Emphasis added.) While that name did not actually appear in the Federal Court Judge's decision, it remained significant that the parents had claimed the contrary. The significance arose from the Tribunal's conclusion in the parents' case that the nature of their contact with the dissident group supporter who was in fact named by the Tribunal had not been brought to the attention of the authorities in the country of origin. In the light of the parents' (mistaken) claim that that dissident group supporter's name had appeared in the Federal Court judgment, it was submitted that the Tribunal Member was required to determine whether that person had in fact been so named, and if so, whether the earlier Tribunal's reasoning (in the parents' case) in relation to that person remained valid. The Tribunal Member's failure to identify the mistaken claim, despite the extensive consideration that was given to the dissident group supporter's role in the earlier Tribunal decision, was said to show the lack of consideration that the Tribunal Member gave to the substance of the appellant's claims. 46 It was that latter possibility alone that the Tribunal Member negatived. He negatived it by reference to 'independent' materials (actually from the Australian government itself). The information cited was, so far as relevant, as follows: ' QUESTIONS: [25/06/03] Q.5 Does the ... Government [in the country of origin] adequately protect ... [those who share ethnicity with the dissident group] ? ANSWERS: [09/07/03] The response to this request for information on the current treatment of [those who share ethnicity with the dissident group] in [the country of origin] should be read in conjunction with CX... which addresses in some detail the current treatment of [various ethnic and religious groups] in [the country of origin] . In preparing this response we sought information from ... police [in the country of origin] and a reliable senior ... journalist [who shares ethnicity with the dissident group] . [Those who share ethnicity with the dissident group] who return to [the country of origin] are not usually persecuted by the ... Government or its agents. There are no restrictions prohibiting [those who share ethnicity with the dissident group] from resettling in the ... of the Country. Many [of such ethnicity] (and Muslims) living in the ... are subject to extortion and forcible recruitment by the [dissident group] . A.1 Since the signing of [a] ceasefire agreement ..., the incidence of human rights abuses against [those who share ethnicity with the dissident group] by the ... Government has decreased dramatically (refer CX...). ... [R] eturnees [who share ethnicity with the dissident group] are unlikely to be persecuted by the Government. We have no information indicating ill treatment of failed asylum seekers by government authorities on their return to [the country of origin] (refer CX...).' 47 This entirely deals with unsuccessful claims for refugee status by returnees who share ethnicity with the dissident group in general . There was no consideration of the particular claims made by the appellant's father on his behalf. It is to be assumed (and hoped) that there were very few other cases of publication of the details of applicants who share ethnicity with the dissident group that identified them and linked them with allegedly well-known incidents, such as the theft of a computer from a major transport facility. 48 Even exercising due charity towards the Tribunal Member's stated reasons, it is not, it seems to me, reasonable to read them as including a consideration of the actual and specific claims made as part of the consideration of the less specific kind of claim that the Tribunal did deal with. Rather, the impression is that the Tribunal missed the potential force of what the father was saying, and the separate and distinct way he was putting the sur place claim. 51 As such it appears that what may fairly be regarded as an integer of the claim was not considered. That, it is well established, amounts to a constructive failure to exercise jurisdiction. Whatever its strengths or weaknesses, the appellant was entitled to have his claim fully considered. I adhere to what I said about NABE and other cases in SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 ; (2006) 150 FCR 448 at [50] - [52] . The considerations discussed there are generally relevant here. 52 Accordingly, the decision of the Tribunal will be quashed and the matter remitted for further consideration according to law. 53 I add that, given what has been made of the publication of the earlier judgment of this Court, I have taken reasonable steps to speak in generalities. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 29 January 2007 Counsel for the Appellant: D Godwin Counsel for the Respondents: M Wigney Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 6 December 2005 Date of Judgment: 11 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/5.html