SZKGQ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before the Court is an appeal against the judgment of Scarlett FM handed down on 24 July 2007. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal): SZKGQ v Minister for Immigration & Anor [2007] FMCA 1250. The decision of the Tribunal was handed down on 13 February 2007. It affirmed a decision of the delegate of the Minister for Immigration and Citizenship (the Minister) not to grant the appellant a protection visa. 2 The appellant is a national of India and a Hindu by religion. He worked in a bank and resided in Ahmedabad in Gujarat. 3 The appellant arrived in Australia on 1 May 2006. The claims made in a written statement in support of his visa application asserted a fear of persecution on account of religion and political belief. The claims are summarised in the Tribunal's decision at 4 to 6. They were grouped under several headings, namely "Extortion by Muslim gang leader", "Interrogation and torture by Muslim Police officers as a result of cousin's implication in death of a Muslim", "Incidents relating to the Muslim festival of Tajia", "Involvement in BJP and combined demands by police and Babbu" and "2002 communal riots in Ahmedabad". 4 The Tribunal summarised the evidence given by the appellant at 7 to 8 of its reasons. The appellant was not legally represented before the Tribunal and the hearing was conducted through an interpreter and by video as the appellant was in Griffith. Many of the significant events referred to in the appellant's statement were not referred to by him at the hearing before the Tribunal. As this omission caused the Tribunal to doubt the claims of the appellant, the Tribunal sent a letter to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) seeking a response to the appellant's failure to mention some of the major events described in his statement at the hearing, and also to explain inconsistencies between the statement and the evidence on other issues. 5 The text of the letter is set out at 9 to 12 of the Tribunal's reasons. The appellant responded in writing, stating that it was not possible for him to comment in detail but whatever he said in his statement was true and correct. 6 After setting out the text of the s 424A letter and summarising the appellant's response, the Tribunal referred to various sources of country information under the heading "Evidence from external sources". 7 At 12 of its reasons, the Tribunal set out a passage from the US Department of State Country Report on Human Rights Practices in India for 2002 concerning the communal violence which occurred in Gujarat following the Godhra train attack in February 2002. The report concluded that the state government allowed its Hindu population free range to attack Muslims in retaliation for the train attack. Approximately 2000 Muslims were killed in riots in Gujarat as a result. 8 The Tribunal also referred to the Human Rights Watch Report of February 2003 which told of the continuation of communal violence sparked by the Godhra attack. 9 Ultimately, the Tribunal rejected the appellant's claims either because they had not been mentioned by him in evidence at the hearing or because there were significant inconsistencies between the statement and the evidence given by the appellant at the hearing. 10 In relation to two claims made by the appellant, the Tribunal referred to the country information it had gathered. The Tribunal said at 16: In addition, the Tribunal notes that the country information confirms that the communal violence which erupted in Gujarat after the Godhra attacks in February 2002 to a very significant degree comprised attacks by Hindus on Muslims. The police and BJP State government were widely criticized for failing to stop the violence and for even participating in and encouraging the attacks. At the hearing the Tribunal raised with the applicant the country information that the hard line pro-Hindu position taken by the BJP and its Chief Minister Narendra Modi was considered to have fuelled the violence perpetrated by Hindus against Muslims after the Godhra attacks. In view of this information the Tribunal also finds it is not credible that the applicant was detained, interrogated and tortured by Muslim police officers. 11 This passage followed the Tribunal's rejection of the appellant's claims of detention, interrogation and torture by police officers for the reason that the appellant had not mentioned the events in evidence at the hearing and had given no explanation in his response to the s 424A letter for his silence on the issue. 12 The second reference to country information concerned claims made in the written statement of attacks made on the appellant and his family by Muslims following the Godhra incident in 2002. The Tribunal rejected the claim because, save for one incident, the appellant did not give evidence at the hearing regarding attacks on his home, himself and his family which he claimed in his written statement had occurred. Rather, the appellant specifically said that he had not been personally attacked. Further, the appellant gave no explanation following the s 424A letter of his failure to give evidence at the hearing of any other incidents. 13 Also, the Tribunal concluded that the appellant would not have returned to India in November 2005 from a trip to the United Kingdom and failed to have sought protection there if he and his family had experienced the incidents referred to in the written statement. The Tribunal continued at 17: The country information confirms that communal violence occurred on a large scale in Gujarat, in particular in Ahmedabad, as a result of the fire on the Sabarmati Express at Godhra in February 2002. Although the reports indicate that retaliatory attacks by Muslims against Hindus did occur, the reports consistently refer to evidence of widespread attacks by Hindus, which appeared to have been highly organized with the support of the BJP led state. 14 The appellant sought review of the decision of the Tribunal before the Federal Magistrates Court. The three grounds of review are set out in [25] of the Federal Magistrate's decision as follows: a) The first ground is that the Tribunal acted in breach of s.424A of the Migration Act and in breach of the rules of procedural fairness by failing to put to the Applicant for comment the independent country information on which it relied in making its determination, and which was potentially adverse to the Applicant. b) The second ground which was submitted in the alternative was that the Tribunal has an obligation to consider and decide whether the country information on which it relied in making its decision, or at least clear particulars thereof, should be given to the applicant pursuant to its statutory obligation under sub-section 424A(1), or whether the material comes within the scope of sub-section 424A(3). The Tribunal failed entirely to consider and decide that issue. c) The third ground claims that the s.424A letter to the Applicant dated 29th November 2006 is a very long and complex letter, and it is submitted the material was so confusing and so complicated that the Applicant was in effect unable to provide a proper response to it. 15 The Federal Magistrate at [33] correctly rejected the first ground of review. The country information falls within the exception of s 424A(3)(a). It is information not specifically about the appellant or any other person and is simply about a class of persons of which the appellant or another person is a member. The magistrate correctly applied the decision in VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178. 16 The obligation to provide adverse information to the appellant was limited to the requirements of s 424A (see s 422B). In addition, in both instances, but clearly in the first instance, the country information supported a conclusion to which the Tribunal had already arrived at the time at which the country information was referred to. Consequently, the country information did not fall within s 424A because it was not the reason or part of the reason for affirming the decision under review. 17 The Federal Magistrate also rejected the second ground of review on the ground that the Tribunal had no obligation to give reasons for providing an invitation to the appellant under s 424A. The Federal Magistrate was correct in this conclusion. 18 The Federal Magistrate rejected the third ground of review, namely that the s 424A letter was confusing and hence failed to comply with the section. The Federal Magistrate was correct in this conclusion. The circumstances of the case were unusual in that at the hearing the appellant simply failed to refer to some of the central claims made in his written statement. This situation called for the Tribunal to set out the omissions and to explain the potential consequences to the appellant. This is what the letter did. 19 On 8 August 2007, the appellant filed a notice of appeal in this Court. The notice was limited to one ground as follows: There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1). The ground of appeal is the same as the first ground of review considered by the Federal Magistrate. 20 On the hearing of the appeal on 7 November 2007, the Court explained to the appellant that the function of the Court was to conduct a judicial review and not to consider the merits of the application for a protection visa which was the function of the Tribunal. Nonetheless, the appellant sought to explain the circumstances of his life in India. This was in effect to support a submission that he should not be sent back to India. Whatever sympathy one might have for the appellant's circumstances, it is outside the function of the Court to consider anything but the legal issues concerning the Federal Magistrate's decision. The single challenge to that decision cannot be upheld. 21 However, in the course of the hearing of the appeal on 7 November 2007, at which the appellant was not legally represented but assisted by an interpreter, it emerged that the hearing before the Tribunal had been conducted both through an interpreter and by video link to Griffith. Each of these circumstances is capable of compromising the fairness of a hearing. In combination, such circumstances may have provided an explanation for the unusual failure of the appellant to mention major and, if true, highly threatening incidents concerning detention, interrogation and assaults. 22 When the conduct of the hearing before the Tribunal was raised by the Court with the appellant, he responded that the Tribunal directed very specific questions to him and he answered what he was asked. The exchange on 7 November 2007 between the Court and the appellant went as follows: HIS HONOUR: The Tribunal said that the evidence you gave to the Tribunal left out some of the main things that you mentioned in your statement. THE APPELLANT: No, it is not right. I spoke everything to the Tribunal. The member was not ready and negative. HIS HONOUR: You didn't ever go to see a migration agent or a lawyer, did you? THE APPELLANT: No. HIS HONOUR: You see, the Tribunal says that you didn't mention anything about Inspector Roshan assaulting you when you gave evidence to the Tribunal. THE APPELLANT: Because I was asked different questions in the Tribunal. They didn't ask me about that so how can I reply? 23 This answer caused the Court to raise with the appellant whether he would wish the appeal be adjourned to allow a transcript of the hearing before the Tribunal to be obtained. He asked that this course be followed. In response, the Minister obtained a copy of the transcript and provided it both to the Court and to the appellant. The appeal was adjourned and was resumed on 4 March 2008 for argument on that issue. 24 The appellant addressed some oral argument to the Court at the hearing on 4 March 2008. He said that he could not say anything to the Tribunal without being asked and further, that as he got no positive response from the Tribunal for his answers, he thought there was no point to speak. 25 The Court has scrutinised the transcript of the hearing before the Tribunal. The transcript does not support the appellant's recollection of the hearing. The hearing commenced after the member explained the purpose of the hearing with an open question, "Tell me why are you seeking protection in Australia?" The appellant's answers commenced briefly and the Tribunal member, initially on three occasions, encouraged further explanation by saying, "Yes, go on." 26 After some further explanation, the Tribunal member again asked the open question, "Is there anything else?" and when a short answer was received to that asked, "I want you to tell me why you are seeking protection, so, if there is anything else that you are saying is leading you to seek protection, I want you to tell me." This yielded a slightly longer answer but the Tribunal member persisted and asked at the end, "Go on." At the end of a slightly longer question, again the Tribunal member asked, "Anything else?" This was repeated twice more before this part of the hearing ended. 27 This initial exchange occurred over two and a quarter pages of transcript. It was only after this initial persistence of the Tribunal that the Tribunal asked a series of detailed questions. Those questions occupied about 15 pages of transcript, at the end of which the Tribunal member said, "I have no other questions, is there anything else you would like to add before we finish today?" The appellant did not add anything further of substance. 28 Despite the appellant's recollection of the hearing, there is no basis for criticism of the way in which the hearing was conducted. The appellant was given generous opportunities to include all elements of his claim. Having omitted important elements contained in the written statement, it is unsurprising that the Tribunal did not accept the appellant's claims. 29 The appeal must be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.