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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant had been denied procedural fairness by not being given warning that other country information was being considered - whether the Tribunal disregarded the requirements of s.424A of the Migration Act - credibility of applicant's evidence - whether review should be declined in circumstances where a breach is found not to be material.

SZAAT v Minister for Immigration [2003] FMCA 71 (10 March 2003)

SZAAT v Minister for Immigration [2003] FMCA 71 (10 March 2003)
Last Updated: 19 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAT v MINISTER FOR IMMIGRATION
[2003] FMCA 71



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant had been denied procedural fairness by not being given warning that other country information was being considered - whether the Tribunal disregarded the requirements of s.424A of the Migration Act - credibility of applicant's evidence - whether review should be declined in circumstances where a breach is found not to be material.



Migration Act 1958 (Cth), s.424(1) and (3)(a)

Kamal v Minister for Immigration [2002] FCA 818

Kioa v West (1985) 159 CLR 550

Minister for Immigration v Al Shamry (2001) 110 FCR 27

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60

NAIH of 2002 v Minister for Immigration [2002] FCA 1010

SDAC v Minister for Immigration [2002] FCA 1482

VAF v Minister for Immigration [2003] FCA 18

W252/01A v Minister for Immigration [2002] FCA 50

WAFA of 2002 v Minister for Immigration [2002] FCAFC 248

Applicant:
SZAAT



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 942 of 2002



Delivered on:


10 March 2003



Delivered at:


Sydney



Hearing date:


3 March 2003



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr J Patel



Counsel for the Respondent:


Mr M Wigney



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 942 of 2002

SZAAT


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Uganda. He arrived in Australia on 30 August 1996 on a visitor's visa. On 26 February 1997 he applied for a protection (Class XA) visa. His application was considered by a delegate of the Minister who rejected it on the

15 February 1999. On 19 March 1999 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal considered the matter and made its decision on 12 August 2002, handing it down on 3 September 2002.

2. The grounds upon which the applicant seeks review of the delegate's decision are contained in his application dated 1 October 2002. He was represented at the hearing before me. But in fairness to Mr Patel, his counsel I should note that he only came into the matter the previous day and therefore did not have time to prepare an amended application which more accurately reflected the grounds upon which he argued the applicant's case. During the course of the hearing counsel agreed that he was proceeding under paragraph 2 of the original application (denial of natural justice), paragraph 3 (bias) and paragraph 5 (the Tribunal failed to complete its mandate and made orders without jurisdiction).

3. The applicant is approximately 36 years of age and was resident in Kampala the capital of Uganda. He obtained qualifications in accounting and business studies as well as music, dance and drama. He worked as an accountant from 1991 until he departed Uganda for Australia in 1996. He came to Australia to celebrate the wedding of a relation. Whilst living in Uganda he was a member of a dance troupe known as the Ngali Ensemble which appears to have been a government backed cultural group. The group had some affiliations with the government of the day. The applicant joined the group on its formation in late 1986 and travelled with it to Liberia in 1987, the Sudan in 1989-90 and to Canada in 1994.

4. The applicant claims that whilst a member of the group, and after it disbanded, he involved himself in a number of anti-government activities. Although not claiming to be a member of any particular party or organisation he supported an opposition candidate for president and made contact with a number of overseas based opposition groups. These contacts were made whilst travelling with the Ensemble. The applicant worked actively for an opposition candidate in the last elections before he left Uganda in 1996. The applicant gave a history of having been beaten up by people in army uniforms in 1994. He also claimed to have lost his house and other assistance given to him as a result of being a member of the Ensemble. He claimed that his brother-in-law was severely beaten by thugs from the ruling party who mistook him for the applicant. He died about two months later because of his wounds. This occurred in 1996 and the applicant fled Kampala for two weeks. However from May to August of that year he remained in the city and campaigned for Kulayisi Gooloba who was contesting the parliamentary election. Mr Gooloba was later arrested and tried for treason in connection with an attack upon a post office. The applicant denied involvement in the violent action.

5. The Tribunal came to the view that the applicant was not a person to whom Australia owed protection obligations. Much of its reasoning is summed up in the paragraphs extracted below from [CB 121]:

"SZAAT claims that the authorities began to search for him after he left the country because there was a crack-down on opposition groups following the 1996 elections. As discussed above, none of the reports which I have read on developments of Uganda during this period suggest that there was a crack-down on members of non-violent opposition groups following the 1996 elections. In these circumstances, and given that I do not accept that SZAAT did anything more than support opposition candidates in the 1996 elections, I do not accept that the authorities began to search for him after he left the country. In reaching this conclusion I have noted the letter from his sister which states that members of the security forces came to arrest him after he came to Australia. However, I believe this letter was written at SZAAT's request and it does not alter my conclusions that he is not of interest to the authorities in Uganda. I have considered the evidence provided by SZAAT about the arrest of Kulayisi Gooloba, Haruna Kasirye and George Miira, all of whom he claims were his associates. Given my findings on the limited nature of SZAAT's political activities, I do not accept that he was closely associated with any of these men. I believe he concocted these claims after finding newspaper articles regarding their arrests as he believed it would enhance his chances of obtaining a protection visa. I also note that the men were all arrested because they were suspected of involvement with violent activities carried out by groups such as the ADF and FDA. The fact that members or suspected members of such groups have been and continue to be arrested is not evidence of a crack-down on members of non-violent opposition groups. It is part of the normal operation of the law."

6. The court book contains between [CB 68-73] the decision of the delegate. At [CB 68] the delegate sets out the evidence that was before him. This consists of six items of which one is the departmental file relating to the applicant, one is a handbook on procedures and criteria for determining refugee status, three are cases decided in the Australian courts and one is the Uganda country report on human rights practices for 1997 by the US Department of State. The delegate discussed this document at [CB 72] and found that:

"the government's main interest is rebel fighters - the applicant does not claim to be a rebel."

7. The delegate also noted that the applicant had not made an application for asylum when he was in Canada in 1994 and combined these into his decision that the claim was not well-founded. When the matter came before the Tribunal the member emersed herself in background information concerning the political situation in Uganda. She provides a three page background between [CB 107-109] in which she refers to numerous documents, most of which are then reproduced in the court book. The applicant criticises this approach saying there are some 160 pages of background material which the Tribunal perused or took into account. He argues that much of this material does not relate to the claims made by the applicant and it is unclear why the Tribunal thought it had some bearing. Counsel stated that the Tribunal may only have perused some of the documents to reach its views and not looked at others. It may not have had regard to any of the documents. He said that none of the extracts were cited to the applicant or cited to support the way the political groups operated in the country and argued that the applicant should have been told what material it was that the Tribunal accepted as bearing on the situation in Uganda. The applicant's attention was not drawn to this and he was not asked for his responses. As a result, it is argued, the applicant was denied a fair and reasonable opportunity to present his case. He was kept in the dark about the information that the Tribunal was relying upon to find against him.

8. The issue of procedural fairness and the need to give information to an applicant was discussed in SDAC v Minister for Immigration [2002] FCA 1482 by O'Loughlin J. At [15] His Honour cites a passage from Kioa v West (1985) 159 CLR 550 where Mason J states at 587:

"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given the opportunity of responding to the matter."

In SDAC the court decided that certain material contained in three DFAT cables and one Reuters briefing note which had not been disclosed to the applicant was classified, in the language of s.424A(3) of the Migration Act 1958 (Cth) (`the Migration Act'), as information:

"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."

The result was that s.424A did not come into operation and there was no obligation for the Tribunal to give the applicant particulars of the material upon which it intended to rely in making its decision. (See also NAIH of 2002 v Minister for Immigration [2002] FCA 1010, W252/01A v Minister for Immigration [2002] FCA 50, WAFA of 2002 v Minister for Immigration [2002] FCAFC 248).

9. There are three passages in the reasons for decision which form the basis for the argument put forward. Two are found at [CB 118]. In paragraph two the Tribunal says:

"I do not accept that the applicant was ever involved in illegal or clandestine political groups or activities in Uganda. I found his claims regarding his alleged involvement with these groups completely unconvincing. Many of his claims are far-fetched and implausible and I found much of the evidence was confused and contradictory. Some of it was also at odds with other information before me" (Emphasis added).

At paragraph four the Tribunal says:

"The applicant claims that he first came into contact with members of underground opposition groups when he attended a party in Sudan in 1989. I do not believe that the applicant met leaders of rebel groups in Sudan in 1999. In the first place, I find the claim that Major Ali would have arranged for him to meet these people far-fetched and implausible. In the first place none of the information which I have read suggests that Major Ali was involved with these groups&q;
uot; (Emphasis added).

The third statement that caused concern to the applicant is made at paragraph two of [CB 121] previously quoted where the Tribunal says:

"None of the reports which I have read on developments in Uganda during this period suggests there was a crack-down on members of non-violent opposition groups following the 1996 elections" (Emphasis added).

10. The information upon which the Tribunal relied was not information that was before the delegate and therefore not information that the applicant would have had any notice of until he received the decision unless the Tribunal had specifically put that information to him and asked him to comment on it. The respondent argues that the first extract quoted is just an introduction upon which the Tribunal later expands. He argues in relation to the second passage that this is not a piece of positive information, which the applicant did not have, it is merely negativing the applicant's assertion. In any event, he says, it is not a decisive critical fact or a positive finding of fact from the country information. The findings made here are not material to the Tribunal's reasons for rejection. The respondent argues in relation to the third extract that these are matters that were discussed earlier in the reasons and are just a general piece of country information cast in generality. The respondent argues that the Tribunal's grounds for its finding against the applicant were based on the Tribunal's assessment of the applicant as a witness. That was the only critical fact. The country information was merely background. The respondent also urged me to take the whole of the applicant's evidence into consideration so that if I did make a finding against the Tribunal in this regard I should exercise my discretion not to grant relief in any event. Mr Wigney argued forcibly that the country information was not used in a positive way but merely held up as not corroborating the information and evidence put by the applicant.

11. The Tribunal's findings about the applicant's claim for refugee status was twofold. First, it did not accept that the applicant had really suffered any persecution whilst in Uganda because his involvement in politics was only limited. Secondly, it did not believe that there was a real chance that he would become involved in politics in a manner that would place him at risk of persecution if he returned to Uganda. The Tribunal took a benign view of the Ugandian government's attitude towards those who oppose it in a peaceful manner. It is the Court's duty to consider whether or not these conclusions were reached in a manner which denied the applicant procedural fairness. The Tribunal concluded that the applicant lacked credibility. This is a conclusion which the Tribunal is entitled to make and indeed has been described as its responsibility (Kamal v Minister for Immigration [2002] FCA 818). But what if the decision on credibility came about because the applicant was not given an opportunity to respond to adverse information? Should the Tribunal have put to the applicant information upon which it based the three conclusions to which I have adverted particularly if they affected the Tribunal's view of the applicant's credibility?

12. Taking the finding in turn I accept the submissions of the respondent that the first matter complained of was no more than a generalised introduction and seems to be the type of material that would fall within the exemption granted to the requirement of s.424A(1) of the Migration Act found in subsection (3)(a).

13. The second quotation complained of, "that none of the information which the Tribunal had read suggests that Major Ali was involved with these groups", is specifically about another person and is therefore not exempted by s.424A(3)(a). It seems to me that the Tribunal failed in this regard to fulfil the requirements of s.424A(1). However, the finding is only one of the reasons why the Tribunal came to the view that it did not accept the applicant's evidence that he met leaders of rebel groups in Sudan in 1989.

14. A similar issue arose in the Minister for Immigration v Al Shamry (2001) 110 FCR 27 where the Tribunal had relied on inconsistent statements made by the applicant in the first interview with a delegate of the Minister. The Tribunal made findings on the credibility of the applicant's evidence at the hearing on the basis these inconsistent statements. The applicant argued that he had been denied procedural fairness because had these been disclosed to him, he may have been able to explain the inconsistencies. At [39] Merkel J sets out the purpose of s.424A:

"Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 179 ALR 238 at 269 per McHugh J. By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information."

Further, at [42] His Honour describes the crucial deciding point in these cases:

"In such cases the applicant for relief may be required to establish that the breach denied him or her the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164-166; Abriel v Australian Guarantee Corporation [2002] FCA 165 at [18] and Carlos at [59]."

(See also VAF v Minister for Immigration [2003] FCA 18)

15. Although this case dealt with a different fact situation then to the one before me, it highlights the need to decide whether the reliance on `information' by the Tribunal which was not put to the applicant ultimately led to the applicant being denied the possibility of a successful outcome. I have indicated that I do not think it did for the reasons stated.

16. The third quotation complained about seems to me to be a clear rebuttal of a contention made by the applicant based upon the Tribunal not finding any corroborative evidence to support it. I cannot see how that falls within s.424A(1).

17. The Tribunal cites a number of reasons why it does not find the evidence of the applicant credible. The issue relating to Major Ali is only one of them. Whilst I am prepared to accept that there was a breach of the Act in relation to this matter, I take into account when considering what effect it should have the views of Hayne J expressed in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60 at [140]:

"Not every departure from the rules of natural justice automatically invalidates a decision adverse to the party affected by the breach. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome of the case."

18. Reading the decision in full I find that I do have the confidence required by this dicta. The incident referred to happened almost 10 years ago. Major Ali was acquitted of charges relating to his activities in the Sudan and went on to become Deputy Prime Minister [CB 110]. The applicant is straining to argue that even if his allegation were held to be true he would still be in danger if he was returned to Uganda as at the date of the Tribunal's decision.

19. For these reasons I dismiss the application. I order that the applicant pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.


I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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