SZBYR and Anor v Minister for Immigration and Citizenship and Anor

[2007] HCA 26
(2007) 235 ALR 609

(Judgment by: Gleeson CJ, Gummow J, Callinan J, Heydon J, Crennan J)

SZBYR and Anor
v Minister for Immigration and Citizenship and Anor

Court:
High Court of Australia

Judges:
Gleeson CJ

Gummow J
Kirby J
Hayne J

Callinan J

Heydon J

Crennan J

Hearing date: 28 February 2007
Judgment date: 13 June 2007

Canberra


Judgment by:
Gleeson CJ

Gummow J

Callinan J

Heydon J

Crennan J

[1] The appellants are Indian citizens who arrived in Australia on 2 October 2002. They are husband and wife, although the facts surrounding their claim to refugee status largely concern the husband's previous marriage to a woman named Salima. After the appellants' arrival in Australia, they applied for a protection (class XA) visa, which was refused by the respondent minister's delegate on 21 November 2002. [1] The Refugee Review Tribunal (the tribunal) refused the appellants' application for review of the delegate's decision. The Federal Magistrates Court rejected an application for judicial review of the tribunal's refusal, and an appeal by the appellants to the Federal Court of Australia was dismissed.

[2] The resolution of the appeal to this court depends on two matters: first, whether the tribunal fell into jurisdictional error; and secondly, if it did, whether relief should follow. The resolution of these issues therefore turns on the proper construction of s 424A of the Migration Act 1958 (Cth) (the Act) and the application of the correct principles regarding the discretionary grant of relief. No party sought leave to reopen the question of the construction given to s 424A by the majority of this court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs. [2] However, this does not obviate the need to pay careful attention to the application of s 424A to the present facts. Likewise, notwithstanding some resistance on their behalf, the appellants' case cannot escape scrutiny in the light of the discretionary considerations identified in Re Refugee Review Tribunal; Ex parte Aala [3] governing the grant of certiorari and mandamus.

The appellants' claims

[3] The appellants' entitlement to a protection visa under s 36(2) of the Act depends on their being persons to whom Australia owes protection obligations, namely those who have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Convention). The appellants contend that they fear persecution in India because of their religion. The female appellant's claim is largely dependent on the male appellant's claim, pursuant to s 36(2)(b) of the Act. In the decisions below, the appellants also referred to their membership of a particular social group, although the basis of this claim was never clearly expressed, and the appellants did not pursue it in this court.

[4] The appellants are Ismaili Muslims and followers of the Aga Khan. Around 1992 or 1993, the male appellant was living in Hyderabad and met a woman named Salima whose familiy were Muslims of a different sect and a higher social status. Salima's family was said to be very influential in Hyderabad. Notwithstanding her family's disapproval, Salima married the male appellant in May 1997. Thereafter, the male appellant claims to have been falsely arrested, charged by the police and imprisoned on a number of occasions between early 1997 and December 2001, each time at the corrupt instigation of Salima's family. The male appellant also claimed to have suffered other forms of harassment at the hands of Salima's family, including an assault in 1997, and he feared the future repetition of such acts. The timing and circumstances of these episodes were not entirely clear, and there were significant discrepancies between the oral evidence which the appellants gave before the tribunal and the content of their statutory declaration made on 25 October 2002 in support of their application for a protection visa.

[5] Some time around early 1999, Salima's father asked that the male appellant divorce Salima. The male appellant did so in March 1999 and thereafter in October 2000 married his present wife, the female appellant. The appellants were living in Hyderabad when they heard that Salima had committed suicide, at which point they moved to Mumbai (Bombay) in the apparent fear that the male appellant would be blamed for Salima's death. In Mumbai, the appellants claim that they were arrested for the death of Salima, jailed for 15 days, and then released on unconditional bail. The appellants said that they were charged with murder, although the precise offence in question was not clear. The appellants claimed that the hostility of Salima's family towards them was motivated by a desire for revenge over Salima's death.

[6] After their release from prison, the appellants returned to Hyderabad and lived there and in a number of other places. Then in Mumbai they obtained a visa to travel to Australia. They left India using their own passports, apparently without any difficulty despite the outstanding charges relating to Salima's death. The appellants fear that, if they are returned to India, they will be imprisoned as a result of the outstanding charge relating to Salima's death, and that they will suffer continued animus from Salima's family. While in their statutory declaration the appellants claimed to fear hostility from "Muslim people" generally, there was no subsequent suggestion other than that they feared hostility from Salima's family, and from police acting at the instigation of Salima's family.

The proceedings below

[7] The minister's delegate was not satisfied that the appellants were persons to whom Australia owed protection obligations because such persecution as they feared was not for a Convention reason. The delegate concluded that the appellants' difficulties arose out of the male appellant's personal relationship with Salima and her family, which was "a private matter which falls outside the scope of the Convention", and while religious differences may have been involved, the male appellant's fear arose out of a "personal and longstanding conflict between [him] and his ex-wife's family over their relationship".

[8] Dissatisfied with this result, the appellants applied to the tribunal for review of the delegate's decision. The application for review was filed on 2 December 2002, and the tribunal wrote on 10 July 2003 to invite the appellants to attend a hearing which was held on 27 August 2003. That invitation was given pursuant to s 425 of the Act. Before the hearing, the tribunal had received various documents including the appellants' statutory declaration of 25 October 2002 in support of their application for a protection visa. At the hearing, the appellants gave oral evidence and were questioned by the tribunal. In particular, the tribunal explicitly drew the male appellant's attention to discrepancies between his oral evidence and his written claims in the statutory declaration, and invited him to comment. The male appellant offered no comment or explanation other than to say that his memory was poor.

[9] Like the minister's delegate, the tribunal did not accept the appellants' claims and, in a decision dated 14 October 2003, dismissed their application for review. Fundamentally, the tribunal was not satisfied that the appellants suffered persecution for a Convention reason. The tribunal concluded that:

Taking into account all the evidence before me, I am satisfied that the [appellants] are involved, or have been involved, in a personal dispute and there is no Convention nexus. The [appellants] are not being targeted for reason of their religion, even though the claimed protagonist the father of [Salima] is not a follower of the Aga Khan. Nor are the [appellants] being targeted for reason of membership of a particular social group constituted by social status.

The tribunal did not consider the male appellant to be a reliable witness, and the "modifications and refinements between his written claims and his oral evidence" within his oral evidence and between his and his wife's evidence led the tribunal to conclude that he was not "entirely frank", especially as regards the circumstances of his alleged arrest in 2001. Other factors leading towards the rejection of the appellants' claims included the lack of documentary evidence, and the implausibility of the appellants' being able to leave India on passports in their own names, given the alleged existence of outstanding murder charges.

[10] In the Federal Magistrates Court, Raphael FM rejected the appellants' application for review of the tribunal's decision, [4] and an appeal to the Federal Court (constituted by Madgwick J) was likewise dismissed. [5] The appellants were unrepresented, and in neither court was substantial attention given to the operation of s 424A. The Federal Magistrate reasoned that neither the text of s 424A nor the decision in SAAP were of assistance to the appellants because "the essential reason for the decision of the tribunal was that the [appellants'] claims were claims which had no Convention nexus" and that "whatever might be said in support of other technical breaches of the tribunal's duty not to fall into jurisdictional error, it would not outweigh that one important point". [6] In the Federal Court, Madgwick J said that "[r]ead charitably" the Federal Magistrate's reasoning was that "any criticism of the tribunal arising from s 424A of [the Act] is not a valid ground for review in this case for the central reason that the tribunal Member's decision was unaffected by any information to which s 424A might have applied", and so understood it did not disclose error. [7]

The operation of s 424A

[11] Section 424A was inserted into the Act by the Migration Legislation Amendment Act (No 1) 1998 (Cth). [8] It forms part of Div 4 of Pt 7 of the Act. That division begins with s 422B, which provides that the division is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". It should be noted that the decision in SAAP concerned the Act as it stood before the insertion of s 422B. [9]

[12] Section 424A provides as follows:

424A Information and invitation given in writing by Tribunal

(1)
Subject to subsections (2A) and (3), the Tribunal must:

(a)
give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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; and
(b)
ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and the consequences of it being relied on in affirming the decision that is under review; and
(c)
invite the applicant to comment on or respond to it.

(2)
The information and invitation must be given to the applicant:

(a)
except where paragraph (b) applies -- by one of the methods specified in section 441A; or
(b)
if the applicant is in immigration detention -- by a method prescribed for the purposes of giving documents to such a person.
...

(3)
This section does not apply to information:

(a)
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; or
(b)
that the applicant for review gave for the purpose of the application; or
(ba)
that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)
that is non-disclosable information.

If subs (1) is engaged, subs (2)(a) relevantly directs attention to the methods of communication specified in s 441A of the Act. Each of the methods there specified requires transmission of a written document. Oral communication is not sufficient.

[13] A majority of this court in SAAP determined two points about the operation of s 424A: first, that its effect was mandatory, in that a breach of the section constituted jurisdictional error; [10] and second, that its temporal effect was not limited to the prehearing stage. [11] However, these propositions do not determine the outcome of this case, and attention must be given to the particular terms of para (a) of s 424A(1) and its operation upon the present facts.

[14] Had the second point in SAAP been decided differently, the present case would have been simpler to resolve: the scope for the operation of s 424A would have been exhausted once the appellants were invited to appear before the tribunal pursuant to s 425 of the Act. Certainly, there was nothing in the conduct of that hearing which was of itself procedurally unfair and, given the presence of s 422B, it might be surprising if s 424A were interpreted to have an operation that went well beyond the requirements of the hearing rule at common law. Unlike SAAP, where the relevant "information" was testimony of the appellants' daughter which had been given in their absence, the "information" in this case consisted of the appellants' own prior statutory declaration, to which the tribunal explicitly drew their attention during the course of the hearing. If the common law rules of procedural fairness applied, one would certainly not criticise the tribunal's approach in this regard. However, it follows from SAAP that the parliament has determined that, if s 424A is engaged, only written notice will suffice.

[15] This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. Rather, the tribunal's obligation is limited to the written provision of "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". What, then, was the "information" that the appellants say the tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite "information" as being the "inconsistencies" between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.

[16] Four points must be noted about this submission. First, while questions might remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information "that the applicant gave for the purpose of the application" did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry [12] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs. [13] Accordingly, no occasion now arises for this court to determine whether that assumption was correct.

[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "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 that the word "information": [14]

... 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.

[19] Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, [15] no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the tribunal from dealing with such matters during the hearing itself.

[20] Moreover, supposing the appellants had responded to a written notice provided by the tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by -- or remaining despite -- the original response to the invitation to comment? If so, was the tribunal obliged to issue new notices for so long as the appellants' testimony lacked credibility? If the appellants' desired construction of s 424A leads to such a circulus inextricabilis, it is a likely indication that such a construction is in error.

[21] The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. That being so, this case does not require this court to address the differences in opinion in the Federal Court concerning the "unbundling" of tribunal reasoning. [16]

[22] Once the limited scope of s 424A is appreciated, and once the proper meaning of the word "reason" in s 424A(1)(a) is discerned, the apparent need for "unbundling" is correspondingly reduced. The respondent minister's concern about "minor" or "unimportant" matters engaging s 424A is largely to be resolved by the proper application of s 424A itself, not by any extra-statutory process of "unbundling".

"Primary" and "residual" claims

[23] In this court, the appellants placed great emphasis on the supposed disjuncture in the tribunal's reasoning between the appellants' "primary claim", namely the laying of the false charge of murder in 2001, and the "residual claim", namely the fear that false charges would be laid in the future at the behest of Salima's family. This disjuncture was said to arise out of the tribunal's use of the phrase "residual claim" in one passage in its reasoning when discussing the feared future actions of Salima's family. The consequence of this disjuncture, so the appellants said, was that the tribunal's reasoning with respect to the lack of "Convention nexus" went only to the residual claim, and not to the primary claim. The primary claim, it was said, failed not for want of a Convention nexus, but solely because the male appellant was disbelieved as a result of the discrepancies between his oral evidence and his earlier statutory declaration.

[24] In turn, this alleged disjuncture led the appellants to argue that the tribunal's alleged breach of s 424A with respect to the primary claim infected its finding about lack of Convention nexus with respect to the residual claim. It was said to be an "absurdity" and a "logical impossibility" to link the finding of lack of Convention nexus with the tribunal's findings about the appellants' arrest in 2001.

[25] In truth, any absurdity arose only from the appellants' artificial construction of the tribunal's reasons. The following words of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang are relevant here: [17]

... [T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

[26] There was no logical inconsistency between on the one hand determining that, even taken at its highest, the appellants' evidence did not disclose a Convention nexus, and on the other hand finding that the appellants' evidence could not be wholly believed because of its inconsistency and implausibility. When read fairly -- and certainly when read in light of the decision of the minister's delegate -- the tribunal's reasons indicate that its finding about lack of Convention nexus applied to all of the appellants' claims, not just to some of them. The incidental use of the phrase "residual claim" did not require any contrary conclusion. Moreover, the appellants' lack of credibility regarding the acts comprising the so-called "primary claim" could not have affected the finding about lack of Convention nexus, as that latter finding was not credibility-based. Rather, it was inevitable even on the best view of the appellants' case.

Discretion

[27] The respondent minister raised the issue of discretionary relief by way of a notice of contention dated 16 February 2007. The minister argued that, even if the appellants' arguments about s 424A were correct, their claim would be doomed to failure because of the absence of a Convention nexus, and thus the grant of certiorari or mandamus would be futile. This submission was not put to the courts below, and, given the conclusions expressed in these reasons that on the facts of this case s 424A had not been engaged at all, it is not critical for the minister to rely upon it in this court. However, it is convenient to say something on the subject.

[28] This court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that: [18]

[56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said: [19]
"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."

[29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [20] cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". [21] In this regard, the references that were made in the course of argument to the "unbundling" of a tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.

Orders

[30] The appeal should be dismissed with costs.