SZIPT v Minister for Immigration and Citizenship

THE TRIBUNAL'S REASONS 5 It is appropriate to refer initially to aspects of the appellant's oral evidence to highlight inconsistencies between it and the visa application statement. 6 At the Tribunal hearing, the appellant indicated that after finishing school he spent two months at college which he left in 1997. When asked what he did after 1997 and before he left for Oman in 2001 he told the Tribunal that "he stayed in Mumbai", Pune and Bangalore for a short time and after that he went "from state to state". He was questioned further about his travels by the Tribunal as will become apparent below. 7 The Tribunal indicated in its reasons it was quite difficult to obtain a "detailed account" of his claims. So in its questioning it "took him back to his claims of joining a political party and asked him to tell me about his history of involvement in politics". As narrated in the Tribunal's reasons: "He claimed that whilst he was at school he became a member of the Muslim League. When I asked him to tell me a little bit about the goals and objectives of the Muslim League, he told me he did not know all those goals and was learning about the party whilst he was a member. I asked him whether he had joined the Muslim League because he had grown up in a Muslim family and he agreed it was one of the reasons that he joined the party. He then told me that he changed parties and became a member of the Marxist party while he was at school. I asked him why he would join the Marxist party, a party which did not support any religious goals or objectives, when he was a Muslim and member of the Muslim League. I put it to him that it was difficult to reconcile a person having a commitment to the Muslim League, then suddenly changing his allegiance and joining the Marxist party. He stated that at his age he did not think about those issues and was simply trying to avoid personal persecution as a member of the Muslim League. He claimed that as a member of the Marxist party he got greater protection from the party and this was the reason he joined." 8 I would note in passing that these two passages of questioning relating to his joining the communist party and his reasons for so doing and to his activities from 1997 to 2001 reveal obvious inconsistencies with the claims made in the visa application statement quoted in paras (i) and (ii) of the particulars above. 9 Turning to the Tribunal's findings and reasons, the Tribunal encapsulated his claims in the following paragraphs: "The applicant claims to fear persecution from members of the RSS who have threatened him with harm because he was a member of the Marxist Party. He claims that he returned to India from Oman in September 2004 and was attacked by members of the RSS and as a result he left India and has sought protection in Australia. He also claims that he does not wish to be a member of the Marxist party and that he will be targeted for harm by members of the Marxist party for reasons of his rejection of his previous membership. He claims that the police cannot provide him with reasonable protection and that he cannot relocate in India because the RSS has a network throughout India and he will not be safe wherever he lives." 10 The Tribunal then indicated that it had "considered the applicant's claims in his protection visa application and review application and his oral evidence" and, importantly, it went on to observe: "After hearing the applicant give evidence and discussing his claims I find that the claims made at hearing represent the applicant's claims for refugee status. Whilst there are inconsistencies between his written claims and claims at hearing I have determined the application on the information given to the Tribunal and the inconsistencies between his written claims and oral evidence are not the reason or part of the reason for affirming the decision under review." I will refer to this as "the Tribunal's inconsistencies comment". 11 It found the appellant not to be a truthful or credible witness, that he was unprepared to be tested on the specific details of his claim and he found it difficult to fabricate those claims because, as the Tribunal said: "he had no experience to draw upon to give that specific evidence". The essence of the Tribunal's findings are contained in the following quotation: "I do not accept that the applicant joined the Muslim League when he was at school in Kerala. The applicant knew nothing of the goals and objectives of the Muslim League. I do not accept that the applicant changed his membership to the Marxist party whilst he was at school. His reasons for changing membership were implausible and I do not accept his explanation that he was changing membership to obtain greater protection from the Marxist party. I do not accept that the applicant was a member, a supporter or even had a passing interest in any of the Marxist parties operating in Kerala at the time the applicant was at school. He admitted that he knew nothing about the Marxist or Communist party in Kerala and claimed he was going to find out more information after he joined. However despite claiming that he was a member from 1997 to 2001 he had not acquired the most basic knowledge of the party, its history or organisational structure. He was not aware that the party was organised in various factions and that one Marxist party has had a significant influence on state politics in Kerala. He did not know which faction to which he had belonged. When faced with basic questions about the nature of the party he admitted that he did not have an active role in the party. I consider that he gave evidence that he did not have an active role because at hearing he was unprepared to be tested on matters outside his experience. As I do not accept that the applicant was ever a member of a Marxist Party I do not accept that after 1997 he moved from state to state to avoid harassment and threats by members of the RSS. I am supported in this finding by the evidence of the applicant which was vague and generalised when he was pressed to give details of time spent in various residences and his means of support between 1997 and 2001. As I do not accept that the applicant was ever a member of a Marxist Party, I do not accept that the applicant returned to India from Oman in September 2004 and resumed his interest in the Marxist party thereby resulting in an attack by members of the RSS which caused him injury. I also do not accept that he will be harmed by members of the Marxist party because he has rejected continuing membership of that party." 12 The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations.

The appeal to the Federal Magistrates Court 13 The ground of the application before the Federal Magistrate was that the Tribunal failed to exercise jurisdiction because it failed to take into account particulars of the applicant's claim in the visa application statement. Those particulars were the same as in paras 3(i) and (ii) of the particulars of the amended notice of appeal set out above. 14 The Federal Magistrate approached his task mindful of the injunction against excessive zealotry in finding error in the language and expression of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291. Having referred to the Tribunal's inconsistencies comment, his Honour stated that the Tribunal's reasons clearly indicated that it was aware of the claims made in the visa application statement and that it had sought to address and test the claims in that statement in its questioning of the appellant at the hearing. Indeed the Federal Magistrate went so far (in [31] of his reasons) to indicate that in his view "the written statement provided the foundation for the Tribunal's questioning of the applicant throughout the hearing". Further, the reasons expressly acknowledged that it had considered the factual claims of the statement. 15 As to the Tribunal's inconsistencies comment, the Federal Magistrate commented that: "I consider that the critical paragraph should not be read as a disclaimer by the Tribunal of an appropriate consideration of the applicant's original written statement. I consider that the paragraph indicates no more than, as is apparent from the Tribunal's subsequent reasoning, that it was able to determine the lack of credibility of the applicant's claims by an assessment of the evidence he gave at the hearing, without a need to rely upon inconsistencies between that evidence and his original visa statement. I do not consider that the Tribunal's reasons should be read as indicating that it declined to consider the original refugee claims, to the extent that they might be capable of reconciliation to the applicant's later evidence given at the hearing. Thus, I would not read the Tribunal's statement: 'I find that the claims made at hearing represent the applicant's claims for refugee status', as indicating a finding that his claims should only be found in his evidence given at the hearing. Rather, the Tribunal should be understood as meaning that, to the extent of any inconsistencies, it found that his later evidence indicated the claims relied upon by him. It was indicating that it intended to disregard the inconsistent parts of the earlier written statement, and also to disregard the fact that he had earlier made inconsistent statements, when assessing his refugee claims. … In my opinion, the Tribunal's reference to not determining the application 'on … the inconsistencies …' was intended only to indicate to a reader of its reasons that it had not found it necessary to use those inconsistencies 'as a part of the reason for affirming the decision that is under review' so as to give rise to duties under s.424A(1). Noting the date of the Tribunal's decision soon after the Full Court's discussion of s.424A in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, it is understandable that the Tribunal should have been concerned to explain why it had not felt it necessary to serve such a notice. In my opinion, this paragraph did no more than that. I find confirmation of this understanding of the paragraph in the Tribunal's subsequent reasons, rather than the converse. The first reason given by the Tribunal for rejecting the applicant's credibility was that he was 'unprepared to be tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence'. This indicates that the Tribunal drew a general conclusion about the content and manner of the applicant's responses to its questioning upon the contents of his original visa statement. The Tribunal then explained specific elements in his responses to questions which it found detracted from his credibility." (Emphasis added) 16 In relation to the lack of any discussion in the Tribunal's reasons of the matters particularised from the visa application statement, his Honour considered that the Tribunal's conclusion refusing to accept that the appellant "was ever a member of a Marxist party" rendered reference to those statements unnecessary. It was implicit in the Tribunal that they had been dealt with and rejected in the above conclusion which embodied a finding "of greater generality": Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. 17 In para 29 of its reasons, his Honour made the following specific observation about one particular finding of the Tribunal: "Moreover, I am inclined to read the Tribunal's reference to 'I do not accept that the applicant was a member, a supporter or even had a passing interest in any of the Marxist parties operating in Kerala at the time the applicant was at school', in combination with the Tribunal's reference to the applicant's lack of knowledge of the Marxist or Communist Party in Kerala, as an oblique rejection of the applicant's original suggestion that he had been attracted by Marxist ideology." (Emphasis added) 18 I simply note in passing that the reference to the appellant being attracted by Marxist ideology was made in the statement accompanying the visa application. The Federal Magistrate concluded that: "As a matter of practicality, it is difficult to see how the Tribunal could have decided the refugee claims of the present applicant, other than by starting with his written statement, testing him at a hearing on its contents, and then assessing the responses he gave to the Tribunal's questions. In my opinion, this is how the Tribunal has decided this case." 19 I would again emphasise that the ground of application before the Federal Magistrate was focused on a failure to take into account particulars of the applicant's claim. Unsurprisingly then the Federal Magistrate's findings were directed at showing that account had been taken of them. 20 The application for judicial review was rejected. 21 Because of the different course the appellant now seeks to take in this appeal there are two further matters, both noted by the Federal Magistrate, to which I should refer. The first is that, as indicated in the Tribunal's reasons, it put to the appellant at the hearing that it "had serious difficulty with his account of events for reasons already discussed with him during the hearing". The second is that at the end of the hearing the Tribunal asked the appellant if there "is anything you want to tell me about your claims you don't think we've covered". The appellant added nothing of present relevance.

THE PRESENT APPEAL 22 The unamended notice of appeal raised three grounds. The first two grounds challenged his Honour's findings that the Tribunal did take account of the claims made in the visa application statement. The third ground asserted that "his Honour erred in not finding that the Refugee Review Tribunal failed to comply with s 425A [sic] of the Migration Act 1958 in failing to inform the appellant that there were inconsistencies between his written claims and his oral evidence." As I have indicated, the first two grounds have been abandoned but leave is being sought to modify the third ground. Before dealing with that matter I should comment briefly on why in any event I consider that the Tribunal's alleged failure to take account of the claims in the visa application statement was unarguable. This provides some background to my view of the prospects of the proposed amendment. 23 The first substantive issue the Tribunal addressed in making its findings was the appellant's credibility. This it decided adversely to the appellant on the basis of the evidence given at the hearing. The Tribunal's questioning of the appellant at that time obviously was informed, inter alia, by the statement accompanying the original visa application, as his Honour observed. However, the credibility finding made was not, on its face, based at all on inconsistencies between the oral evidence and the statement. What the appellant said on the day sufficed for that purpose. When regard was had to what the appellant had said then and to the reasons given for rejecting his oral evidence, the bases of his claims to refugee status, whether made in the statement or at the hearing, fell away. This was not because of any inconsistencies between the two. It was because, at the hearing, he authored his own failure. The Tribunal clearly was aware of, and considered, the claims in the statement. There is no reason to doubt its truthfulness in this regard. Having heard the appellant giving evidence and having discussed his claims with him, it was quite proper for the Tribunal to observe that the claims made at hearing represented the appellant's claims for refugee status. These, at the close of the hearing, were the claims being prosecuted by the appellant. The Tribunal could disregard earlier inconsistent claims. And, as it indicated, it needed to have no regard to the inconsistencies themselves as part of its reason for affirming the delegate's decision. 24 Moreover, I should add that the Tribunal in any event had no need to make any specific reference to, or findings on the earlier claims. Its rejection of the claims put at the hearing was so comprehensive - so all encompassing - as to obviate any need for such particular reference or findings. They fell necessarily with the findings made, even if they were inconsistent with, or different from, the claims made at the hearing. I am satisfied the Tribunal was aware of this: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. 25 I refer to these matters by way of background to what is now sought to be raised in the proposed amended notice of appeal. It is to be alleged that the Tribunal not only took into account the claims that were made in the visa application statement, it also took into account the inconsistencies between that statement and the oral evidence without drawing these to the attention of the appellant and giving him the opportunity to consider and comment upon them. This failure is said to constitute a failure to accord procedural fairness and/or a failure to comply with s 425 of the Migration Act. 26 The first and most obvious point to make about the proposed new ground of appeal is that this matter was not raised in the court below. As was said by his Honour in his reasons "no issue is taken in the grounds of review in this Court to the fairness of the Tribunal's proceedings. It is not contended the applicant was denied the opportunity required by s 425 of the Migration Act, nor that he was not alerted to the issues that arose in the review before the Tribunal." 27 As is well understood, even though this proposed new ground was not raised before the Federal Magistrate, the Court may allow such a ground to be agitated on an appeal if satisfied that it is expedient in the interests of justice to allow that course to be taken: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168. Whether or not leave should be granted in this case will turn largely on the prospects of success of the proposed amended ground. For this reason, as I indicated at the hearing, I have heard argument both on the substantive ground and on the application to amend. 28 The manner in which the appellant's counsel has argued the matter has been somewhat unusual. He has conceded that in confirming the details of his protection visa application at the Tribunal hearing, the appellant thereby gave the information in the visa application statement "for the purpose of the application" to the Tribunal: cf s 424A(3)(b). It is not for me to consider whether this concession needed to be, or was properly, made: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [29] ff. It was then said that the inconsistencies between the statement and the oral evidence were not required to be notified under s 424A of the Migration Act either because of s 424A(3)(b) or, in my view, more properly because inconsistencies in evidence given by an applicant are not "information" for the purposes of s 424A: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. 29 The next step in the appellant's proposed challenge was premised upon what are said to be findings made by his Honour that the Tribunal did take account of inconsistencies between his visa application statement and his oral evidence, notwithstanding it disclaimed so doing. I will return to these findings below. What is contended is that because the Tribunal relied upon those inconsistencies in reaching its decision it was, as I noted above, obliged to put the inconsistencies to the appellant either as a matter of procedural fairness or because, in the circumstances it was required to do so by s 425 of the Act as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [33]-[36]. 30 By way of background to my consideration of that contention, I should refer to aspects of the provisions of s 422B, s 424A and s 425. Section 422B(1) of the Act provided at the relevant time: "Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matter it deals with." 31 Section 424A provided, insofar as presently relevant: "Applicant must be given certain information (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; … (3) This section does not apply to information: … (b) that the applicant gave for the purpose of the application." 32 Section 425(1) in turn provided: "Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 33 I have already indicated that the appellant has conceded that he was not entitled to be informed of the "inconsistencies" via the notification requirement of s 424A because the information in question was expressly excluded from that requirement by s 424A(3)(b). In consequence, it is said that provision did not relevantly deal with the requirement of the natural justice hearing rule in relation to putting the appellant's own inconsistent statements at the Tribunal to him. 34 It is difficult to see how s 424A has any significance in the resolution of the issue - save perhaps as manifesting a legislative intent that the natural justice hearing rule will not apply to information provided by an applicant for the purposes of an application to the Tribunal. Given that the section imposes, and then delimits, the scope of a statutory obligation to provide information having prospectively a particular character (i.e. "would be the reason" etc), the fact of there being inconsistencies is not "information" for the purposes of the provision. As was indicated by the joint judgment of five members of the High Court in SZBYR at [18]: "… if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information' [(2004) 206 ALR 471 at 476-477]: 'does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc'. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant 'information' was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself." 35 If, in the circumstances, the Tribunal was under an obligation to put the inconsistent statements to the appellant for comment, that obligation could only have arisen if, and to the extent that, s 425 of the Act so dictated in the circumstances. It prescribed the opportunity that was to be given in circumstances such as the present to an applicant at a Tribunal hearing by way of "the natural justice hearing rule" beyond what was required by s 424A: cf SZILQ v Minister for Immigration and Citizenship [2007] FCA 942. 36 In SZBEL, the High Court commented of s 425 (at [33]-[36]) that: "[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language 'arising in relation to the decision under review' is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister's delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. [36] It is also important to recognise that the invitation to an applicant to appear before the tribunal to give evidence and make submissions is an invitation that need not be extended if the tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the tribunal will begin its interview of an applicant who has accepted the tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision." 37 It is, in my view, unsurprising that (i) no issue was raised before the Federal Magistrate as to the fairness of the Tribunal's proceedings, and (ii) it was not contended that the appellant was denied the opportunity required by s 425 or that he was not alerted to the issues that arose in the review. He was clearly put on notice that the Tribunal had difficulties "with his account of events" and the bases of those difficulties were revealed in his answers to the Tribunal's questions. He was given the opportunity to give further evidence "about claims you don't think we've covered". He was alerted to the possibility that he might be disbelieved. In consequence he suffered '[n]o practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [38]; from the manner in which the review hearing was conducted and his application determined. I do not consider that he can derive any comfort from s 425. 38 Counsel for the appellant stated in submissions that he only became aware of what he perceived to be the natural justice vice in the matter when the learned Federal Magistrate was giving his extempore judgment and was understood to be making references to the Tribunal's having had regard to inconsistent statements. There are two in particular I highlighted earlier in these reasons. It is necessary to refer again to them and to the contexts in which they were made. The first is at [26] of the reasons. Having indicated at [25] that the Tribunal's inconsistencies comment was made with s 424A in mind, his Honour considered that the purpose of the comment was to explain why the Tribunal had not felt it necessary to serve a s 424A notice. His Honour went on to say: "I find confirmation of this understanding of the paragraph in the Tribunal's subsequent reasons, rather than the converse. The first reason given by the Tribunal for rejecting the applicant's credibility was that he was 'unprepared to be tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence'. This indicates that the Tribunal drew a general conclusion about the content and manner of the applicant's responses to its questioning upon the contents of his original visa statement. The Tribunal then explained specific elements in his responses to questions which it found detracted from his credibility." (Emphasis added.) 39 The respondent Minister does not concede that this amounts to a finding that the Tribunal itself found inconsistency between the statement and the oral evidence. Rather, it says no more than that the statement provided the source, inspiration or prompt for the Tribunal's questioning, but that the general conclusion drawn was based on the content and manner of his responses to its questioning which the Tribunal then enlarged upon. 40 I can only say that I agree completely with the Minister's contention. As his Honour had earlier observed of the inconsistencies comment: "I consider that the paragraph indicates no more than, as is apparent from the Tribunal's subsequent reasoning, that it was able to determine the lack of credibility of the applicant's claims by an assessment of the evidence he gave at the hearing, without a need to rely upon inconsistencies between that evidence and his original visa statement." 41 The second alleged finding of the Federal Magistrate to the effect that the Tribunal had regard to inconsistent statements was no more than a dictum and a speculative one at that. His Honour stated at [29]: "I am inclined to read the Tribunal's reference to 'I do not accept that the applicant was a member, a supporter or even had a passing interest in any of the Marxist parties operating in Kerala at the time the applicant was at school', in combination with the Tribunal's reference to the applicant's lack of knowledge of the Marxist or Communist Party in Kerala, as an oblique rejection of the applicant's original suggestion that he had been attracted by Marxist ideology [which was made in his visa statement]." (Emphasis added.) 42 Again the Minister denies this is a finding of reliance upon inconsistencies. Rather it is an observation to the effect that the lack of knowledge the appellant displayed at the hearing, belied any claim he may ever have made actually to have had an interest in Marxism. Again I agree with this contention. 43 For my own part I do not consider that the reasons of the Federal Magistrate betray in any event the vice alleged in the proposed ground of appeal. Ex tempore judgments have on occasion to be read with some generosity. They should not be read selectively and with a predisposition adverse to its correctness. 44 As I do not consider that the proposed amended ground of appeal has any reasonable prospect of success, I do not consider it to be in the interests of justice to grant leave to amend the notice of appeal. Accordingly, I will order that (i) leave to amend the notice of appeal be refused and (ii) the appeal be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 13 August 2007 Counsel for the Appellant: Mr R Killalea