SZGLU v Minister for Immigration & Citizenship

Federal Court of Australia|2007-02-21|Before: Bennett J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate Smith dismissing an application for judicial review of a decision of the Refugee Review Tribunal (SZGLU v Minister for Immigration & Anor [2006] FMCA 1664). The ground of appeal, as presently pursued, is that the appellant made claims in his protection visa application that were not addressed by the Tribunal. That is the sole issue. It is conceded by the Minister that not all such claims were addressed by the Tribunal. The Minister contends, however, that in the circumstances of the hearing before the Tribunal, the appellant abandoned those claims made in the protection visa application that were not expressly pursued orally at the hearing before the Tribunal. 2 The ground of appeal was not raised before Federal Magistrate Smith. However, the Minister has consented to the filing of an amended notice of appeal raising this ground and, by consent, the transcript of the Tribunal hearing is in evidence before me.

The Tribunal decision 3 The appellant is a citizen of Malaysia. The Tribunal accepted that the appellant may have spent time in a prison in Malaysia and been subjected to bullying from other inmates or guards. However, it did not accept that the appellant's incarceration came about by reason of an imputed political opinion or that the treatment he received in prison was motivated by his perceived political opinion. 4 It is clear from the Tribunal's reasons that the Tribunal was aware of the claims made in the protection visa application. These claims were cited in the Tribunal's reasons. It is also apparent that the Tribunal considered that those claims were abandoned. The circumstances which gave rise to that conclusion are discussed in the Tribunal reasons as follows. The appellant presented a statutory declaration and a handwritten letter to the Tribunal at the commencement of the hearing. As set out in the Tribunal's reasons, when asked about the details of the statutory declaration, the appellant stated that it was not a true document but merely prepared by his adviser, that he was asked to sign it and that he had signed it without understanding or knowing what was in it. When asked about the details of the letter, which sought a postponement of the hearing on medical grounds, the appellant stated that, although he had signed it, it was not prepared by him and he wished to proceed with the hearing. 5 The Tribunal stated that it proceeded to ask the appellant whether this meant that statements in his protection visa application were incorrect. The appellant gave a general response that did not expressly answer the question. Following a discussion of the appellant's response, the Tribunal stated in its reasons: 'given the ambiguity about his claims and the correctness of the written information thus far provided the Tribunal [decided it] would ask [the appellant] some basic questions.' 6 The Tribunal's reasons later stated: 'at the hearing [the Appellant] dissociated himself from much of his written evidence which he had signed stating that his migration agent Jaya Kumar Vedaranyam had prepared this material and that it was fabricated. [The appellant] asked the Tribunal to disregard this written material and to instead take as a true statement of events his oral evidence given at the hearing.'

The Tribunal hearing 7 At the commencement of the hearing there was a discussion about the statutory declaration. A number of responses by the appellant are relevant. The appellant told the Tribunal: · 'I want to tell the truth, please tell that the story [in the statutory declaration] is not true and this story was written by them.' · 'I can't read very well. I don't know anything about this migration work and after writing it they wanted me to sign and I simply signed. I'm going to tell the true story only now.' 8 In response to a question referring specifically to the protection visa application, where the Tribunal observed that that application stated that the appellant spoke, read and wrote English, the appellant responded '[n]o, they just wrote it...this is something that was written by them'. 9 It is clear and accepted by the appellant that he rejected the statutory declaration as not a true document. He did not sign it and said it was not a true document. When asked by the Tribunal, '[y]es, it's not true?', the appellant replied, '[i]t's not true'. It is clear from the transcript that what he conveyed to the Tribunal was an abandonment of the contents of the statutory declaration. 10 When the protection visa application was raised directly with the appellant at the hearing he said that a friend had helped him complete it, that friend being someone other than his migration adviser. The Tribunal noted that the adviser had signed the protection visa application and that the writing of that signature appeared the same as the writing in response to the questions throughout the application. However, the appellant affirmed that it had been written by two persons, including the friend who was not the migration adviser. 11 It is fair to say that, in the circumstances, there was uncertainty about the state of the protection visa application and that the Tribunal was of this view. The appellant had abandoned the statutory declaration and the letter. He had stated that those documents were not prepared by him, that he did not understand what was in them and said, in effect, that the contents were untrue. I note that the signature at the bottom of each page of the statutory declaration and the signature on the letter appear identical with the signature on the protection visa application. 12 The Tribunal then said to the appellant: 'Well, given that you've told me that these statements aren't true statements and you're not really sure about your protection visa application I'm just going to go through and ask you some details.' 13 The Tribunal proceeded to ask the appellant a number of formal questions in relation to matters that were set out in the protection visa application and then said '[o]kay. So do you want to explain to me then why you think you're a refugee?'. 14 The hearing then proceeded with a series of questions and answers whereby the appellant set out claims made by him as reflected in the Tribunal's reasons. Among those questions were questions directed to the appellant's involvement in politics. The Tribunal asked the appellant directly about his political involvement in a number of different questions. Those questions were directed to ascertaining whether the appellant was himself a political activist or member of a party or whether he was, as he told the Tribunal, helping another. The appellant repeatedly stated that he was not a member of a political party himself nor a political activist. 15 The Tribunal asked the appellant whether there was anything else he wished to add at the end of his recital of his claims and the appellant affirmed that he had told the truth and that the statutory declaration was 'fabricated'. 16 There was then a further exchange whereby the Tribunal asked the appellant: TRIBUNAL: Okay, so you're telling me that I can take what you've told me in the hearing to be your claims? THE APPELLANT: That's the truth, certainly that's the one. TRIBUNAL: And your claims are that because you helped your friend with putting up posters and banners and flags and these were about the DAP Party. THE APPELLANT: Yes. 17 There were further specific questions and answers reaffirming the appellant's claims as stated orally to the Tribunal. The Tribunal then repeated: TRIBUNAL: So is that the sum total of your claims? THE APPELLANT: Certainly, truthfully. The Tribunal then asked again '[o]kay, so is there anything else you would like to tell me?'. The appellant replied '[n]o, I have told the whole truth.'

The appeal to this Court 18 The question is whether the conclusion of abandonment of the claims in the protection visa application was open to the Tribunal, based upon what occurred at the hearing. It is conceded by the Minister that if the appellant had not in substance disclaimed or abandoned, or otherwise effectively told the Tribunal he did not wish to proceed with, claims made in the protection visa application, the Tribunal committed jurisdictional error. 19 The appellant's responses to the Tribunal's questions were directly inconsistent with material raised in the protection visa application, which material asserted the appellant was an 'active member of parti Bakan (Anwar Support political party)…fighting against Dr Mahathir'. The Tribunal did not rely upon any such inconsistency, but appears to have given the appellant the benefit of the doubt that what he was telling the Tribunal at the hearing was the claim that he wished to put forward. It reasonably affirmed the appellant's assertion that what he was telling the Tribunal was the claim that he wished to put forward and that he did not wish to pursue the claims previously made; that is the claims in the protection visa application. 20 The Tribunal is conducting a review of the Delegate's decision but that review is conducted on the basis of the claims advanced and materials before the Tribunal (SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798 at [34]). While the Tribunal is obliged, in certain circumstances, to review claims not expressly advanced at the hearing (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] and [68]), if a claim raised before the Delegate is abandoned before the Tribunal, it is entitled to take the view that the applicant does not make that claim or a case based on that claim (SZEIV at [34]). 21 In my view, it was open to the Tribunal to conclude that the only claims being made by the appellant to the Tribunal were those advanced at the hearing. It was also open to the Tribunal to conclude, as it did, that the appellant had abandoned the claims in the protection visa application, especially as those claims were inconsistent with the appellant's evidence to the Tribunal. In the context of the Tribunal hearing, this was not a case where the appellant was simply silent as to an aspect of the previous claims. The appellant told the Tribunal that his protection visa application was something 'written by them'. He had also said that he was 'going to tell the true story only now'. After reciting that story, the appellant was asked if the oral account he had given represented the "sum total of the claims" he wished to present. He answered "yes". 22 It was open to the Tribunal to accept the veracity of the appellant at the hearing and to accept that the claims as there presented were the totality of the claims that he wished to make.

Conclusion 23 It follows that no jurisdictional error arises out of the conduct of the Tribunal hearing or the Tribunal's reasons. Accordingly, the appeal must be dismissed. I order the appellant to pay the first respondent's costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Solicitor for the First Respondent: DLA Phillips Fox

Date of Hearing: 21 February 2007

Date of Judgment: 21 February 2007

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