SZDBZ v Minister for Immigration and Multicultural Affairs

Introduction 1 In this appeal, the Appellant contends that Federal Magistrate Lloyd‑Jones erred (SZDBZ v Minister for Immigration & Anor [2006] FMCA 890) in dismissing on 12 July 2006 an Application for Review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 20 February 2004 and delivered on 11 March 2004 affirming a decision of the Minister's Delegate refusing the Appellant's application for a protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The Appellant's Notice of Appeal recites three grounds which fail to reveal the content or substance of the Appellant's contentions. Nevertheless, the grounds are these: '(a) The magistrate made [a] mistake in law in rejecting the Submissions made by my Lawyer. (b) The magistrate made [a] mistake in law in that the Tribunal had not decided my case correctly. (c) The magistrate made [a] Jurisdictional mistake in law in not holding that I was denied procedural fairness and denied natural Justice.' 3 Mr J M Patel of counsel prepared written submissions on behalf of the Appellant in support of the proceedings before Federal Magistrate Lloyd‑Jones and the Appellant relied upon those written submissions in support of the grounds of appeal before this Court. In those submissions Mr Patel addresses three grounds of appeal. The first ground is that the Tribunal made a jurisdictional error in failing to properly construe and apply a correct understanding of the notion of 'persecution' and the elements of a 'well‑founded fear' of persecution for the purposes of Article 1A(2) of the 1951 Convention relating to the Status of Refugees ('the Convention') as amended by the 1967 Protocol relating to the Status of Refugees ('the Refugees Protocol') for the purposes of s 65(1) of the Act. 4 Paragraphs 24 and 25 of the submissions of Mr Patel either raise a further ground or are to be taken as a subset of the first ground. The contentions are in these terms: '24. It is submitted that at the previous hearing the applicant's claims and evidence given by the applicant were accepted by the Tribunal member. The Tribunal in essence accepted that the applicant was a truthful witness. The Tribunal member in the later hearing rejected all of the claims made by the [applicant] on the ground that the claims were fabricated. The Tribunal erred in seeking the applicant to satisfy him [the Tribunal member] beyond reasonable doubt and in failing to give him the benefit of any doubt. 25. It is submitted that the matter was referred to the Tribunal to consider the issues that were not considered in accordance with the law. The Tribunal erred in not confining its attention to the matters that were required to be considered. In any event, the Tribunal erred in holding that all claims advanced by the applicant were fabricated simply because the applicant did not produce at the hearing the documents which the Tribunal expected would have been produced at the hearing by the applicant. The Tribunal imposed a burden of strict proof and did not give the benefit of reasonable doubt.' 5 The reference in paragraphs 24 and 25 of Mr Patel's submissions to errors on the part of the Tribunal in failing to confine its attention to particular matters for reconsideration consequent upon referral to the Tribunal, is a reference to an order of Federal Magistrate Scarlett made on 30 July 2003 by which an earlier decision of the Tribunal was set aside with the remittal of the matter to the Tribunal to be determined according to law. The Appellant contends that the earlier findings of the Tribunal by which the Tribunal accepted the truthfulness of the contentions of the Appellant ought not to have been the subject of reconsideration. The Appellant further contends that in embarking upon a reconsideration of the substratum of fact going to each of the Appellant's contentions, the Tribunal fell into error in making adverse findings as to both the creditworthiness of the Appellant and the Appellant's fabrication of particular matters, in reliance upon a failure by the Appellant to produce documents evidencing his marriage in India and documents evidencing the Appellant's alleged divorce proceedings in India. 6 The second ground relied upon by the Appellant is that the Tribunal made a jurisdictional error by failing to apply the correct test of a 'well‑founded fear' of persecution for a Convention reason by failing to assess whether the Appellant 'subjectively' held a fear of persecution for a Convention reason and whether 'objectively' that fear was a well‑founded fear. The second ground seems to me to be a further articulation of elements of the first ground of appeal. Paragraphs 27 and 28 of the submissions of Mr Patel under the heading 'Ground 2' are in these terms: '27. The Tribunal erred in failing to examine the facts and circumstances existing at the time the applicant applied for a protection visa and whether he had a well‑founded fear of persecution at that time. The Tribunal also erred in application of the test of well‑founded fear in so far as the Tribunal failed to speculate about the possibility that the applicant may suffer persecution in the reasonably foreseeable future. 28. The Tribunal erred in as much as it considered the application in the context of the change in the political climate in India and it erred in failing to consider the application in the entire context of the time when the applicant applied for a protection visa and the change in circumstances since the date he made his application for a protection visa.' [emphasis added] 7 In effect, the Appellant contends by paragraphs 27 and 28 of the submissions that a two stage process of analysis must be adopted by the Tribunal. First, the Tribunal must assess all of the facts and circumstances going to the question of whether the Appellant held a well‑founded fear of persecution for a Convention reason at the date the Appellant applied for a protection visa (having regard to reasonably foreseeable future events). Secondly, the Tribunal must then consider whether there has been any change in circumstances since the date of application for the visa which might inform whether the Tribunal can reach the required state of satisfaction as to the relevant matters. 8 In other words, the methodological approach adopted by the Tribunal is said by the Appellant to be flawed. 9 The third ground relied upon by the Appellant in paragraph 29 of Mr Patel's submissions is that the Appellant was 'disadvantaged by the double jeopardy he was put to'. The contention is put in this way: 'The applicant was disadvantaged in not being served with any notice to produce any particular documents that were required by the tribunal, particularly when the documents did not relate to any live issues which had not been considered in accordance with law'. 10 The Appellant contends that upon remittal of the matter to the Tribunal for determination consequent upon the decision of Federal Magistrate Scarlett, questions of credibility arising out of a consideration of the Appellant's allegations concerning his marriage and the alleged subsequent divorce were not alive. Were such matters to be the subject of reconsideration by the Tribunal or had the Appellant been advised that adverse credit inferences might be drawn by the Tribunal in reliance upon a failure to produce documents going to either of the two events, the Appellant would have produced documents going to each matter. However, the Appellant did not do so and contends that he was thus disadvantaged. 11 The Appellant contends that the error of law on the part of Federal Magistrate Lloyd‑Jones is his Honour's failure to recognise and properly characterise these contended errors on the part of the Tribunal, as jurisdictional errors.