SZJJA v Minister for Immigration & Citizenship

THE CURRENT APPEAL 6 Counsel for the appellant raised the same grounds in the notice of appeal to this Court as were raised before the Federal Magistrate. The appellant's primary argument is that the Tribunal did not outline its reasons for reaching its conclusion and the facts it considered material to that conclusion, so that the appellant cannot identify its reasons with certainty (citing Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323). The appellant also refers to s 430 of the Act which obliges the Tribunal to set out its findings on those questions of fact it considers material to its decision and the reasons for that decision. 7 The Tribunal's reasons are brief. That itself does not found jurisdictional error. The Tribunal accepted that the appellant is a Nepalese national and that he was a Kathmandu-based proprietor of a fruit company who had some trouble successfully transporting produce from rural regions in Nepal, which he remedied through import contracts with producers in India and China. The Tribunal did not accept that Maoists had targeted the appellant for donations. The Tribunal rejected the appellant's claims, gave no weight to supporting documentation and expressed itself not satisfied that the appellant was a reliable witness. The "Findings and Reasons" section of the decision did little more than state these conclusions, subject to one matter. 8 The Tribunal did set out some commentary on the veracity of the appellant's claims: The Tribunal does not accept on the evidence before it that the Maoists have been targeting the Applicant for donations, whether for Convention-related reasons or even just for criminal, mercenary ones. The Tribunal accepts that such a practice has been going on in Nepal but does not accept that it has been happening to the Applicant. The appellant says that this does not make sense. 9 In the absence of the part of the Tribunal's reasons headed "Claims and Evidence" that assertion may be arguable. However, in that part of its reasons the Tribunal records not only what was said at the hearing but also the Tribunal member's observations on the evidence. In particular, the Tribunal makes it clear that it did not find acceptable the appellant's evidence of the conduct of the fruit business in Nepal. The appellant first said that his wife ran the business. When asked why the appellant would leave his wife to run the business and deal with the Maoists, the Tribunal commented that the appellant 'digressed'. When the question was repeated, the appellant 'digressed again, before changing his evidence, saying that he left the business in the hands of a friend'. When the Tribunal reminded the appellant that he had claimed to have left the business in the hands of his wife, the appellant said that his wife operated it in India and China but 'later reverted to the original claim about his wife being in Nepal'. 10 The Tribunal commented that it found some of the evidence 'incongruous'. This was in connection with the claim that the Maoists were still looking for the appellant and the evidence that the Maoists were not interested in him for his own part but interested in the money that they thought they could extract from him. The Tribunal recorded the appellant's evidence that his friend, who allegedly looked after his business, does not give money to the Maoists and is still operating the business 'apparently regardless of this situation'. 11 The way in which the Tribunal dealt with the recording of the appellant's claims and evidence, together with its observations, put into context the broad reference to the different circumstances that would reasonably be expected to exist if the appellant's claims about himself were true. 12 The appellant refers to the Tribunal expressing itself as not satisfied about the appellant's 'protection prospects' in Nepal. This was, as conceded by counsel for the Minister, "clumsy". However, in the context of the appellant's claims, which did not include a claim to lack of protection by the authorities, it clearly refers to the broader claim of fear of persecution and the application for a protection visa. 13 The appellant also refers to the Tribunal's treatment of letters produced by him, purportedly from Maoists demanding money from him and from police stations purportedly reporting what he had reported to the police. The Tribunal commented in the "Claims and Evidence" section of the reasons on the difficulties and deficiencies it saw in those documents. That put into context the conclusion of the Tribunal in the "Findings and Reasons" section that it gave no weight to the documents in support of the appellant's claims. The Tribunal did not repeat its previous comments, which provided the reason for declining to give weight to those documents but that does not amount to a failure to give reasons in the decision as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J). Further, having found that the appellant was an unreliable witness, the Tribunal placed no weight on material he provided in support of his claims. This does not mean that the Tribunal's reasons were irrational or illogical (Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 58 at [11]-[12] per Gleeson CJ, at [49] per McHugh and Gummow JJ). 14 The appellant submits that the Tribunal was obliged to set out findings of fact and to act fairly in the conduct of the hearing. The appellant does not suggest that the actual conduct of the hearing was unfair. As noted by the Federal Magistrate, there was no evidence to contradict the Tribunal's description of what happened at the hearing (at [10]). The appellant submits that the Tribunal is obliged to refer in its findings to the conclusions drawn from the recitation of facts. He says that the Tribunal did not disclose a meaningful basis for rejecting the appellant's claims or for its conclusions. 15 The Tribunal's "Findings and Reasons", in isolation, do not state the basis for each conclusion. However, when reading the decision as a whole, each conclusion reflects an observation or reasoning process or concern stated earlier in the Tribunal's account of the hearing. I agree with Smith FM (at [20]) that the author of the reasons clearly intended the reader to understand that the Findings and Reasons would be read together with the description of the hearing. In their totality, the reasons demonstrate that the Tribunal addressed the claims and genuinely and rationally assessed them. There is no foundation for any suggestion that the Tribunal approached the matter with a closed mind or a mind not open to persuasion. 16 Many of the matters referred to by the Tribunal were noted as specifically put to the appellant. The Tribunal did make it very clear that it did not accept the appellant's evidence and that it was not satisfied that he was a reliable witness or that his evidence was reliable. As Smith FM said at [20], 'the simple reason was that the Tribunal was not satisfied as to the reliability of the [appellant] as a truthful witness in relation to his claimed fear of persecution'. For that reason the Tribunal did not accept his claims and was not satisfied that the appellant's claimed fear of persecution was well-founded. 17 Reading the decision as a whole, the Tribunal explained why it came to that conclusion.

CONCLUSION 18 The appellant has not established jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate. It follows that the appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Solicitor for the Appellant: Simon Diab & Associates

Solicitor for the Respondent: Australian Government Solicitor