SZEDA v Minister for Immigration and Citizenship

THE TRIBUNAL DECISION 4 On 2 July 2007 the application for review was heard for a third time by the Tribunal, differently constituted. Before the Tribunal the appellant claimed that he was a member of the Marumalarchi Dravida Munetra Kazhagam Party ('the MDMK') in Tamil Nadu in 2002. The appellant claimed that the leader of the MDMK was arrested and imprisoned in July 2002 and that on 14 July 2002 he and other members of the MDMK protested such arrest and imprisonment. The appellant claimed that he and the other protestors were arrested by the police and that he was detained for five or six hours. The appellant claimed to fear that he would be arrested again if he were to return to India. 5 The Tribunal accepted that the appellant had been affiliated with the MDMK and had undertaken certain campaigning activities such as canvassing. The Tribunal accepted that the appellant had been arrested for a period of five or six hours in 2002 and also accepted his claim that he had been released from detention because only the divisional leaders of the MDMK were of interest to the authorities. The Tribunal could find no evidence that the appellant had been of adverse interest to the authorities after his arrest on 14 July 2002. The Tribunal was not satisfied that the appellant had an adverse political profile in Tamil Nadu. 6 After the hearing the Tribunal forwarded a letter to the appellant dated 25 July 2007 pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'). The appellant replied to such letter by way of a statutory declaration dated 6 August 2007 and received by the Tribunal on 8 August 2007 ('the statutory declaration'). In the statutory declaration the appellant claimed that in addition to his membership of the MDMK party he was also associated with the Tamil Tigers ('the LTTE') and the Tamil Nadu Liberation Army ('the TNLA') and that he had been detained by the police a number of times apart from his alleged arrest on 14 July 2002. 7 The Tribunal found that the claims made in the statutory declaration were a fabrication and that due to the appellant's failure to raise such claims at any time during the application process, including the three Tribunal hearings, it would not give them any weight. The additional claims in the statutory declaration also led to the Tribunal to find that the appellant was not a witness of truth. 8 The Tribunal did not accept that the appellant held a well-founded fear of persecution in India. The Tribunal accordingly dismissed the appellant's application in its decision handed down on 28 August 2007 ('the Tribunal's third decision').

APPLICATION IN THE FEDERAL MAGISTRATES COURT 9 By application for judicial review filed in the Federal Magistrates Court on 21 September 2007 and by amended application filed on 29 February 2008 the appellant challenged the Tribunal's third decision. 10 The appellant's amended application raised the following grounds:

1. The Tribunal failed to comply with s 424A of the Act. The Tribunal failed to provide a proper opportunity to the appellant to comment on independent evidence said to be adverse to him on which the Tribunal relied. The Tribunal provided particulars of country information upon which it relied in a selective manner, and failed to specify which particular pieces of country information it relied upon.
2. The Tribunal decision fell into jurisdictional error as it failed to properly consider the appellant's claim that he was mistreated by police in addition to being detained. The Tribunal also fell into jurisdictional error by failing to take into account the appellant's claim that he went 'into hiding' after his arrest in July 2002.
3. The Tribunal decision fell into jurisdictional error as it did not make its findings on credibility 'transparent and explicit'.
4. The Tribunal's finding in relation to the appellant's affiliation with the MDMK was 'equivocal and uncertain' and was therefore in error as the Tribunal was required to make a positive finding of fact because the matter was central to the appellant's claim. Furthermore, the Tribunal was obliged to make a positive finding of fact in relation to the appellant's membership of (as opposed to participation in) the MDMK as it did not question the authenticity of a purported membership document. 11 Federal Magistrate Smith found that the Tribunal was under no obligation to put country information to the appellant due to the exception to s 424A(1) of the Act provided in s 424A(3)(a). Notwithstanding this fact, Smith FM also found that the appellant's attention had been drawn to the 'gist' of the Tribunal's researches. His Honour accordingly rejected the appellant's first ground of review. 12 Smith FM considered the appellant's second ground of review but did not accept that the Tribunal had made any jurisdictional error. Smith FM found that the assertions made by the appellant relating to his mistreatment while in detention were unsupported by any evidence and were inconsistent with the Tribunal's description of the hearing. Smith FM did not accept the appellant's assertions. Smith FM also found that the Tribunal had addressed the appellant's claim that he had gone into hiding in another part of India. However, the Tribunal had rejected such claim as unbelievable on the ground of recent invention. Smith FM rejected the second ground of review. 13 In considering the third ground of review, Smith FM observed that such ground did not identify any jurisdictional error in the Tribunal's third decision. 14 Smith FM considered the fourth ground of review and found that the Tribunal had accepted the possibility of the appellant's membership of the MDMK as being true, and had assessed his claimed fear of persecution on this basis. His Honour found that no jurisdictional error arose in this context. 15 Smith FM also addressed the question of whether under s 424A(1) of the Act the Tribunal was obliged to put to the appellant the possibility that it might not accept the truth of the claims made in the statutory declaration. However, his Honour found that the Tribunal did not rely upon 'information' for the purposes of s 424A of the Act in rejecting the appellant's claims in the statutory declaration. Rather, his Honour found that the Tribunal had 'arrived at conclusions about the new claims based on their inconsistency with how the applicant had previously presented his claims'. His Honour also found that there was no obligation under s 425 of the Act to provide such information to the appellant.

THE APPEAL BEFORE THIS COURT 16 By notice of appeal filed on 19 June 2008 the appellant appealed to this Court. The notice of appeal raises the following grounds:

1. The Tribunal denied the appellant procedural fairness.
2. The Tribunal decision contained an error of law.
3. The Tribunal breached s 424A of the Act. 17 The hearing of the appeal came before the Court on 19 August 2008. However, since the Minister's submissions had come to the appellant's attention only a short time prior to the hearing, the appellant sought an adjournment to respond. Such adjournment was granted. 18 The hearing of the appeal again came before the Court on 15 September 2008. On this occasion the appellant raised an additional ground of appeal. The appellant claimed that at the third Tribunal hearing the Tribunal member had stated that he knew 'everything about your [the appellant's] case' and that there was 'no point in your continuing to make further submissions to me'. The appellant claimed that the Tribunal member 'told me whatever submission you make… there is not going to be any difference in the verdict I give'. 19 The appellant also claimed that he had informed Smith FM of the Tribunal member's statements made during the third Tribunal hearing. However, the appellant subsequently retracted such claim because he was not '100 per cent certain' that he had told Smith FM of such statements. 20 The Court considered that the appellant's additional submission was tantamount to an allegation of apprehended bias of the Tribunal against the appellant. However, as neither the transcript of the third Tribunal hearing nor of the Federal Magistrates Court hearing was before the Court, the Court ordered that the Minister obtain and provide to the Court such transcripts and ordered that the hearing be adjourned to 7 October 2008.

FINDINGS 21 The transcript of the third Tribunal hearing does not record any statement by the Tribunal member to the effect claimed by the appellant. Nor is the Tribunal member recorded as having made any statement which could have discouraged the appellant from making submissions. Nor were any statements made to the effect that the submissions made by the appellant would not affect the Tribunal's decision. 22 Contrary to the appellant's additional ground of appeal, the Tribunal member clearly indicated that he would hear any submissions the appellant wished to make. The Tribunal member said: I am reviewing the Department of Immigration decision. I have to decide whether I am satisfied you are a refugee… I am going to ask you a series of questions and I am going to write down the answers and looking at all the submissions that you have made about why you believe you are a refugee and all the claims that you have lodged to support your application, I will look very closely at those claims and listen very carefully to everything that you say here today.

The appellant made oral submissions before the Tribunal. The Tribunal member then indicated that he would consider those submissions in making his decision, saying: I have got to… think about things very carefully before I write a decision and I will consider everything that you have said today.

23 In considering a claim of apprehended bias the Court is to make reference to 'a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias': see Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 at [28]. 24 Having considered the transcript of the third Tribunal hearing, the Court finds no basis upon which a fair-minded lay person would apprehend bias by the Tribunal against the appellant. The Court accordingly finds that the appellant's further ground of appeal is without merit. 25 The Court also observes that the transcript of the hearing before Smith FM does not record that the appellant informed his Honour that the Tribunal member had said to the appellant that 'I know all about your case, it is not [sic] use making any further submissions'. However, as the appellant retracted such claim at the hearing on 15 September 2008, it is unnecessary for the Court to make any finding in respect of such claim. 26 In considering the appellant's notice of appeal, no particulars are provided of the first ground of appeal claiming a breach of procedural fairness. To the extent that the first ground of appeal may allege a breach of s 424A of the Act by the Tribunal, such allegation is considered separately hereunder in relation to the appellant's third ground of appeal. 27 If the appellant's first ground of appeal was intended to extend to a breach of s 425 of the Act, no such issue was raised before the Federal Magistrate. The Court would need to be satisfied that it is expedient in the interests of justice to allow such issue now to be raised: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [25]-[26]. 28 The Court observes that the Tribunal invited the appellant to appear before it at a hearing and the appellant duly appeared. It is apparent from the Tribunal's third decision that every claim made by the appellant was carefully considered. 29 It was not possible for the Tribunal to consider, at the hearing, the claims which were raised by the appellant in the statutory declaration for the reason that the hearing had already taken place. However, having considered the claims raised in the statutory declaration, the Tribunal found that it was inconceivable that they had not previously been raised by the appellant in either the application to the Department of Immigration and Citizenship or in any of the three Tribunal hearings. The Tribunal found that such claims were 'added to embellish the applicant's overall claims for protection'. 30 Smith FM considered whether there was any obligation arising under s 425 of the Act requiring the Tribunal to inform the appellant of its conclusions relating to the additional claims contained in the statutory declaration. His Honour held that there was no obligation to do so, and the Court finds no error in his Honour's approach. The Court rejects the appellant's first ground of appeal. 31 No particulars are provided in support of the second ground of appeal, namely that the Tribunal erred in law. No such error is apparent in the Tribunal decision and in the absence of any particularisation the Court is unable to make any finding in favour of the appellant in respect of such ground. 32 The third ground of appeal alleges a breach of s 424A of the Act. Although no particulars are provided, the Court observes that a similar claim was made before Smith FM, namely that the Tribunal erred in its letter sent pursuant to s 424A of the Act by referring only to parts of the country information without providing the appellant with the entire advice. 33 If the appellant's third ground of appeal seeks again to raise such argument, the Court observes that there is no obligation upon the Tribunal to provide such information to the appellant: see s 424A(3)(a) of the Act. The appellant has not identified any error of the Tribunal in its application of s 424A of the Act. 34 For the above reasons, the appeal is dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 9 October 2008 Counsel for the Appellant: The Appellant appeared in person.