SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs

Ground A(ii): Failure of the Federal Magistrate to find that the Tribunal had applied the wrong test or yardstick concerning the burden of proof 7 The appellant contends that the Tribunal 'made a clear cut jurisdictional error' when it concluded 'The Applicant must satisfy the Tribunal that all of the statutory elements are made out.' At the hearing, Mr Jayawardena, clarified that it was the appellant's submission that the Tribunal was under an obligation to investigate and make inquires into the claims. He submitted that the Tribunal was not entitled to take the view that it was for the appellant to satisfy the Tribunal. Mr Jayawardena accepted that there was clear authority against his argument. His only authority was the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. 8 It is well accepted that the powers of the Tribunal to make an investigation under the Act do not give rise to any mandatory investigation; Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Cassim (2000) 175 ALR 209 at [13]. It is for the appellant to present to the Tribunal material necessary for it to achieve the requisite satisfaction (Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Abebe (1999) 197 CLR 510; Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 411). If the Tribunal is not satisfied that the appellant has a fear of persecution for a Convention reason, the Tribunal must refuse the application for review and affirm the delegate's decision. There is no requirement for the Tribunal to make a positive finding of disbelief; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. 9 No jurisdictional error is demonstrated. The Tribunal was not obliged to conduct its own investigation. The Federal Magistrate was not in error when he concluded that the Tribunal was cognisant of, and applied, the correct test in performing its task.

Grounds A(iii): Error in finding that the case does not appear to come within the scope of the Convention 10 The appellant is critical of the Tribunal's observation: 'Even if his claims are accepted at face value, his case does not appear to come within the scope of the Convention'. Mr Jayawardena contends that this statement indicates that the Tribunal did not consider the appellant's claims, each in turn. In particular, he says that the Tribunal failed to deal with the appellant's claims of persecution, arrest, torture and detention. 11 There is no doubt that the Tribunal was required to address the appellant's claims and their component integers; WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. The Tribunal is not, as the appellant appears to be contending, obliged to consider every assertion of fact. The detentions, arrest and torture of the appellant are factual assertions submitted to support the appellant's claim about his political beliefs. Indeed, the Tribunal could not be expected to make a finding about the appellant's asserted arrests, detention and torture where it had insufficient information to do so. In its decision, the Tribunal refers to those factual assertions in some detail. They were addressed by the Tribunal. 12 Driver FM concluded at [10] that the Tribunal gave real and genuine consideration to the appellant's claims and rejected this ground of review. That conclusion has not been shown to have been made in error.

Grounds A(iv): Error in failing to assess the appellant's claims "constructively and probatively" 13 To the extent that this ground represents an alleged failure to consider the claims, I have dealt with it. To the extent that it challenges the Tribunal's findings of fact, it amounts to impermissible merits review.

Further submissions: Compliance with s 424A 14 The appellant's further submissions were confined to the relevance of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) ALR 162. They do not raise the applicability of Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 to this Tribunal decision. It is submitted that, in writing the letter, the Tribunal 'admitted' that it needed to investigate the appellant's claims more fully. Therefore, in Mr Jayawardena's submission, its only option in the absence of the appellant at the hearing was to write to the appellant for comment. 15 In SAAP, the applicant attended the hearing and gave evidence. There was no consideration of the interaction between s 424A and s 426A and the circumstances of non-attendance at the hearing. Section 426A provides that, if an applicant is invited to appear before the Tribunal and does not appear on the hearing date, the Tribunal 'may make a decision on the review without taking any further action to allow or enable the applicant to appear before it'. The section is designed to relieve the Tribunal from having to reschedule the hearing or to hold it at all. 16 By not attending the hearing, the applicant has, in effect, waived his opportunity to provide further comment on adverse information. (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82). He cannot then complain that, by that action on his part, the Tribunal has denied him procedural fairness. 17 In my view, there has been no lack of compliance with s 424A. The Tribunal sent the letter to the appellant inviting him to a hearing and notifying him that the Tribunal was not able to make a decision in his favour. The Tribunal therefore had informed the appellant that it was not satisfied that the appellant had a well-founded fear of persecution because of inadequacies in the information he provided. The reason for the decision was the deficiency in the information. The appellant was informed of that reason prior to the Tribunal hearing and the Tribunal decision. 18 The information before the Tribunal was the same information the subject of the letter. That is, the Tribunal notified the appellant in writing that it considered the information insufficient and for that reason, without more information, the Tribunal would affirm the decision under review. The Tribunal's written reasons, in effect, were a subsequent detailed analysis of and reasons for that decision. In my view, even if the gaps or deficiencies identified by the Tribunal or other matters in the decision constituted information for the purposes of s 424A(1), there had been compliance with s 424A(1) and (2). I agree with the observations of Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]: 'The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant´s favour on the basis of the information before it, and as the Full Court observed in NAVX vMinister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application. Thus, even though the RRT adverted to matters (b) and (c) in its reasons, what was integral to the RRT´s reasoning process was the notified inadequacy of the information provided by the appellant in support of his claims, and his rejection of the invitation to appear at a hearing designed to afford him the opportunity to elaborate on that information.' 19 The appellant submits that the Tribunal was obliged, in any event, to send him its reasons before coming to a decision, as a matter of procedural fairness. It is difficult to see any procedural unfairness in the fact that the Tribunal did not send to the appellant a draft of its reasons when the appellant was on notice that the Tribunal could not, on the basis of the information he had provided, make a decision in his favour and he then declined to attend the hearing or advance more evidence. In my opinion no denial of procedural fairness has been established.

The decision of the Tribunal and s 424A(1) 20 In the hearing of this appeal, I drew to the attention of the parties my concerns about the sentence of the Tribunal's decision: 'I find it difficult to believe that [the appellant] would have returned to India after travelling abroad a number of times after his problems began if he was at risk of serious harm'. This sentence referred to information in the appellant's application for a protection visa. It was not information which was in the application to the Tribunal. 21 Material contained in the initial visa application could be "information" within the meaning of s 424A(1). Such material is not given for the purposes of "the application" within the meaning of s 424A(3)(b) since that expression refers to the Tribunal application for review (Al Shamry at [17] per Ryan and Conti JJ; at [40] per Merkel J; cf VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [18]-[22] per Finn and Stone JJ). A contravention of s 424A(1) by the Tribunal constitutes jurisdictional error. 22 Both parties filed further written submissions. 23 The Tribunal decision is short. While it could be said to lack some logical order in the way it was written, the Tribunal's findings and reasons are apparent. 24 After noting that it was not the role of the decision maker to make the applicant's case for him or her or to accept uncritically any assertions he or she makes, the Tribunal set out the appellant's claims in some detail and summarised the claims as the appellant having faced numerous problems in India because of his involvement with the Congress Party. The Tribunal expressed the view that some of the evidence suggests that the problems alleged by the appellant were caused by another for commercial reasons. The Tribunal said: 'If this is so, even if the claims are accepted at face value his case does not appear to come within the scope of the Convention. And without the opportunity to investigate [the appellant's] claims more fully, I am not prepared to accept his case at face value.' (emphasis added) 25 The Tribunal then commented that it had difficulty accepting that the appellant's claimed problems resulted from political views or activities. This was because of the fact that the appellant repeatedly travelled abroad and returned to India and because of country information about the lack of risk of serious harm to members of the Congress party for peaceful expression of their views or involvement in legitimate political activities. The Tribunal said that, if the appellant had attended the hearing, it would have been possible to investigate his claims more fully. However, he failed to attend and, on the evidence before the Tribunal, it was not satisfied that he has a well-founded fear of persecution in India for reasons of political opinion or for any other Convention reason. 26 As was submitted by Ms Clegg, who appeared for the first respondent, there is no finding by the Tribunal that the case does not fall within a Convention ground; the Tribunal said that the claims did 'not appear' to come within the scope of the Convention. There is no adverse finding against the appellant based upon country information; the Tribunal had 'considerable difficulty' accepting that the appellant suffered serious harm. In any event, country information did not need to be provided to the appellant as it came within s 424A(3)(a) of the Act. Although the Tribunal did refer in its decision to a possibility of relocation, there was no finding that the appellant could relocate. There was no finding that he does not face harm in India because he had returned to India on a number of occasions; the Tribunal found it 'difficult to believe' that he would have returned if he were at risk of serious harm. 27 The claim of persecution was based upon the actions of someone taking over the Presidency of the local market. That information was repeated in the application to the Tribunal, as was the claim of subsequent mistreatment by the police. Accordingly, it was information given to the Tribunal by the appellant within s 424A(3)(b) of the Act. 28 The matters referred to by the Tribunal were gaps or deficiencies in the claims advanced by the appellant that resulted in the Tribunal's finding of a lack of satisfaction that the appellant had a well founded fear of persecution. 29 The respondent submits that, in the present case, an analysis of the Tribunal's reasons demonstrates that it considered that the absence of information provided, or the defects in the information provided, was fundamental - not the information itself. The lack of satisfaction of the Tribunal was reached after considering all the information before it including documents which would be information for the purpose of s 424A. I agree. These matters did not constitute information which were the reasons or part of the reasons for the decision of the Tribunal within the meaning of s 424A(1) of the Act (VAF). 30 In the respondent's submission, the information that the appellant visited India on a number of occasions was not an integral or essential part of the Tribunal's reasons but rather was inessential to those reasons, within the principles of VAF. The Tribunal does not make a finding that the appellant does not face harm in India because he had returned to India on a number of occasions. The Tribunal merely expresses some doubt about the matter. It cannot be said that the Tribunal was not prepared to accept the claims because of the appellant's continuous returns to India. Rather, the reason for the decision was the absence of information. Similarly, the respondent contends, the Tribunal makes no other findings in its decision; not on relocation or on whether or not the case falls within a Convention ground or a finding based on country information. 31 In my view, the mere reference to material, such as the travel to India, in the section under heading "findings and reasons" does not mean that the Tribunal has made a finding on that material or that it was the reason or part of the reason for the decision. It is a matter of logical analysis of the reasons. 32 I agree with the respondent that the reason for the decision was the absence of information provided and the gaps in that information that it did have. As Allsop J held in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]: 'The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision.' 33 The Tribunal's decision in no way depended upon any disparity between the contents of the initial protection visa application and the claims made by the appellant to the Tribunal. Therefore, as the sentence referring to the appellant's travels abroad was not 'the reason or part of the reason' for the decision, the obligation under s 424A is not enlivened.

CONCLUSION 34 The appellant has not established contravention of s 424A(1) or any other jurisdictional error by the Tribunal or error by the Federal Magistrate. 35 The appeal is dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 13 December 2005 Solicitor for the Appellant: C. Jayawardena

Date of Judgment: 13 December 2005