SZLOG v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate on 29 February 2008. Her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal; [2008] FMCA 223. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants. 2 The appellants are a husband and wife, citizens of India, who arrived in Australia on 22 March 2007. They lodged their application for a protection visa with the Department of Immigration and Citizenship on 1 May 2007. The appellant wife relied on the claims made by her husband, to whom I shall refer as the appellant. In the protection visa application, the appellant claimed to fear persecution in India because, as a businessman, he refused to pay bribes demanded by "criminals, thugs, extortionists" and the State was unwilling to protect him from these people. 3 At the Tribunal hearing, the appellant produced a two page document outlining his revised grounds for grant of a protection visa. He stated that the document contained all the information regarding his claims and that his wife also relied upon the claims contained in it. The document claimed, inter alia, that the appellant's father was a well-known Bharatiya Janta Party (BJP) leader, that he himself was a member, and that he had taken an active part in the most recent Gujarati elections. According to the appellant, he and his family suffered after Hindu-Muslim riots in 2002 because of his BJP association. He claimed that he was seriously injured by rioters. He also asserted that after his involvement in the elections, Muslims aligned with the rival Congress Party attacked many local BJP leaders and stabbed many to death. The police would allegedly not respond and demanded money in return for protection. Contrary to his written evidence however, he said in oral evidence that he had never personally been attacked. 4 The Tribunal did not accept that the appellant was a credible witness because of inconsistencies in his evidence and affirmed the decision of the delegate of the first respondent. The inconsistencies concerned contradictory claims about the appellant being a member of the BJP, the movements of the appellant's father, and whether or not the appellant himself had been attacked. The Tribunal was not satisfied that the appellant or any members of his family had ever been targeted by Muslims for reasons of real or imputed political opinion. On this basis, it was not satisfied that he had been denied police protection for the reasons claimed, or that the appellants held a well-founded fear of future Convention-related harm. 5 Numerous grounds of review were raised before the Federal Magistrate in an original and later in an amended application. In the original application, the appellant claimed that the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth); had failed to accord the appellant procedural fairness, which he submitted at the hearing was constituted by the Tribunal's decision not to adjourn the hearing; and had denied the appellant natural justice in finding that his claims were not Convention-related. In relation to these grounds, the Federal Magistrate found that the Tribunal had rejected the appellant's claims primarily on grounds of credibility. This was the Tribunal's subjective appraisal which it was not obliged to put to the appellant under s 424A(1) of the Act; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. Regarding the Tribunal's refusal to adjourn the hearing, her Honour held that this was a matter for the discretion of the Tribunal. Her Honour held that the Tribunal's ultimate decision on credibility was open to it and did not result in any denial of natural justice. 6 In the later amended application, the appellant raised claims to the effect that the Tribunal erred in law in its findings in relation to the appellant's alleged well-founded fear of persecution, claiming that it had used an "unduly harsh approach" and a line of questioning which relied only on the evidence of the "putative persecutors". He also alleged bias on the part of the Tribunal and that the Tribunal had ignored the facts mentioned in his submission. In relation to these grounds, her Honour could see nothing to demonstrate that the Tribunal had adopted an unduly harsh attitude to the appellant's claims, had adopted an unfair line of questioning, or had displayed bias. Her Honour held that the Tribunal had considered all of the appellant's claims and evidence, had provided him with sufficient opportunity to produce documents in support of his application, and had otherwise adopted correct principles in weighing the claims and evidence before it. The matter was accordingly dismissed for want of jurisdictional error. 7 The notice of appeal in this Court claims that the Federal Magistrate erred in law in determining the Tribunal's decision to be free from jurisdictional error. It listed three errors of law said to affect the Tribunal's decision. At the hearing of the appeal the appellant made no relevant submissions but merely asked that he be allowed to stay in Australia. 8 The first error of law is that the Tribunal failed to disclose information in breach of s 424A(1) of the Act and relied on the exception in s 424A(3). No attempt was made to identify which information enlivened the Tribunal's obligations under s 424A(1) in this case, nor has the appellant identified any error affecting her Honour's reasoning on this point. In my view, her Honour's reliance on the principle enunciated in SZBYR, namely that "information" in s 424A(1) "does not extend to the Tribunal's subjective appraisals, thought processes or determinations on the evidence, including its disbelief of the applicant's evidence", was entirely correct. 9 The second error of law said to affect the Tribunal's decision is that the Tribunal erred in finding that the appellant did not face Convention-related persecution in his home town; failed to apply the "real chance" test to the appellant's claims; and applied an unduly harsh approach to "well-founded fear". In my view, it cannot be said that the Tribunal was wrong in concluding that the appellant did not face Convention-related persecution because, as her Honour pointed out: It is not the case that the Tribunal found that the applicant's claims of persecution did not have a Convention nexus. Rather, the applicant was unsuccessful because the Tribunal did not believe his claims of fear of persecution, per se. 10 No unduly harsh approach was taken to deciding whether the appellant had a well-founded fear because the Tribunal rejected the premise on which the appellant's claim of fear was based. Accordingly I accept the first respondent's submission that, properly characterised, this ground "amounts to a complaint concerning the merits of the Tribunal's decision, which cannot be reviewed by this Court". 11 The final error of law said to affect the Tribunal's decision is that the appellants were denied natural justice and procedural fairness when the Tribunal did not permit an adjournment of the hearing to allow them to forward additional documents in support of their claims. I am satisfied that the Federal Magistrate was correct in holding that: … it was a matter within the exercise of the Tribunal's discretion for it to determine whether it should grant the adjournment in the circumstances where the matter had been set down for hearing one month previously, where the applicant had a migration agent assisting him to whom the relevant documentation had been sent, and where the applicant has not sought to bring any concerns in the preparation of his case to the attention of the Tribunal until two days before the hearing. 12 In addition, I note, as did the Tribunal member, that the appellant was in receipt of all the documents that were available, namely a copy of the Tribunal file and the departmental file. I also note that, at the conclusion of the Tribunal hearing, the appellant stated that he did not have any further documents he wished to hand to the Tribunal and confirmed that the written statement was a full account of his claims. He was given an opportunity to add anything further and declined to do so. In these circumstances, this ground of appeal must fail. 13 On 4 August 2008 the appellants filed written submissions seeking to raise before this Court their claims regarding persecution by Muslims. As I explained to the appellant at the hearing, this Court is not permitted to assess the merits of the appellants' application for a protection visa. The written submissions also claimed that "The Federal Magistrate totally ignored the facts mentioned in the applicant's submission and made decision prior to the hearing". To the extent that this statement seeks to raise an additional ground of appeal alleging bias on the part of the Federal Magistrate, it cannot be accepted. An allegation of bias is very serious and it must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. To the extent that the statement seeks to raise an additional ground of appeal alleging that the Federal Magistrate's decision was irrational or illogical, this ground must also be rejected; such a ground is not supported by a reading of her Honour's reasons, which carefully and comprehensively deal with each of the appellants' complaints. 14 The Tribunal based its adverse credibility finding on inconsistencies in four key aspects of the appellant's evidence, all of which were raised at the hearing. It appears from the Tribunal's record of decision that the Tribunal did not explicitly put its perception that the appellant was not a credible witness to him. In my view, it is clear from the account of the hearing given in the Tribunal's decision that the statements and questions put to the appellant were sufficient to indicate to him that everything he said in support of his application was in issue. In circumstances where the Tribunal's questions and statements relate to all aspects of the evidence on the basis of which an adverse credibility finding is eventually made, the Tribunal's obligations in relation to s 425 are satisfied. 15 This conclusion is consistent with the recent Full Court decision in Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87. In that case, the Full Court applied the High Court's observation in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165 that: …there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. 16 In finding that the Tribunal in SZJGY had satisfied the obligations imposed by s 425 of the Act, the Full Federal Court held at [11]-[12] that: …where, as here, an applicant gives a chronological account of his experiences and the later elements of the account are a function of earlier events, the credibility of the later events must depend on whether or not the Tribunal accepts the earlier account. … The Tribunal's refusal to accept his account of the initial elements in this chain of causation is a sufficient reason not to explore later elements. 17 In my opinion, the conclusion of the Federal Magistrate was correct for the reasons her Honour gave. Accordingly, the appeal should be dismissed with costs. I am satisfied on the basis of affidavit evidence filed by the first respondent that the first respondent's costs should be fixed in the amount of $2400. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.