SZMMJ v Minister for Immigration and Citizenship

ON REVIEW BY THE FEDERAL MAGISTRATES COURT 7 Before the Federal Magistrate the appellant's primary claims were: 1. The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act). 2. The delegate of the first respondent failed to comply with s 66 of the Act. 3. The Tribunal had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future. 8 In relation to ground 1, the learned Federal Magistrate noted that the Tribunal wrote to the appellant on 21 April 2008, giving him information that may be part of its reason for affirming the decision under review, inviting him to comment. The letter sought to explain each piece of information and why each piece was relevant and gave the appellant until 19 May 2008 to respond. Her Honour found that the appellant did not provide any further information or documents in response to the letter. Therefore, the Tribunal was entitled to have regard to the information to which it had referred. Her Honour further noted that, in any event, the information contained in the letter was not information that the Tribunal was obliged to give to the appellant pursuant to s 424A(1) of the Act as it was information about a class of persons of which the appellant was one and otherwise related to evidence given by the appellant to the Tribunal for the purpose of its review, information excluded by reason of ss 424A(3)(a) and 424A(3)(b) of the Act. 9 In relation to the second ground, her Honour found that there was no failure to comply with s 66 of the Act. This was apparent from the letter, dated 5 February 2008 (sent by registered post to the appellant's nominated postal address), from the Department to the appellant notifying him of its decision to refuse the application. 10 Thirdly, her Honour noted that at the heart of the Tribunal's decision was 'its adverse credibility findings in respect of the [appellant's] evidence and its comprehensive rejection of his claims', findings which her Honour found were open to the Tribunal on the evidence and material before it and for the reasons it gave. 11 The learned Federal Magistrate also considered whether or not the Tribunal's refusal of the appellant's request for an extension of time for one month to comment on information put to him in the s 424A letter, suggested that the Tribunal had misunderstood and failed to consider the appellant's request to provide further documentation. Her Honour held that the Tribunal was not obliged to grant the appellant's extension request. Her Honour found that while the terminology used by the Tribunal was a 'loose and imprecise' characterisation of the appellant's request to file additional documents, this was not sufficient to constitute a jurisdictional error. 12 As no jurisdictional error was established, her Honour dismissed the application.

GROUNDS OF APPEAL 13 The notice of appeal raises the following grounds and repeats the grounds of review raised before the Federal Magistrates Court:

1. The Tribunal failed to comply with s 424A(1) of the Act.
2. The delegate of the first respondent failed to comply with s 66 of the Act.
3. The Tribunal had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future. 14 Although the grounds are directed against the Tribunal and the delegate of the Minister rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal and the delegate.

THE HEARING 15 At the hearing of the appeal before me the appellant stressed that he still sought more time to locate documents in India which were relevant to his appeal. When asked specifically what documents he sought, he indicated that he wished to obtain documents which would confirm his attendance at the church and his followings of the Christian faith. 16 The Tribunal wrote to the appellant on 21 April 2008, providing him with particulars of independent country information and inviting him to comment on it. On 18 May 2008 the appellant wrote to the Tribunal, requesting an extension of one month to respond to the information provided by the Tribunal and to arrange further documentation to be submitted to the Tribunal. The Tribunal responded on 20 May 2008, refusing to grant a further extension. However, the letter noted that the Tribunal would consider any further evidence provided by the appellant until its decision was handed down. The decision was handed down on 12 June 2008. 17 Counsel for the first respondent drew attention to those passages of both the Tribunal decision and her Honour's decision in which this issue was closely examined. It is sufficient for present purposes to refer to her Honour's analysis of the position with which I respectfully agree: 61. The Applicant is obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider his request for further time to provide documentation. The Applicant must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Applicant's request to provide further documents (SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [29]-[32]). The Applicant has not discharged that burden. The Tribunal's letter, dated 19 May 2008, read in context with the Tribunal's reasons as disclosed in its decision record, makes clear that the Tribunal had understood, considered and determined the Applicant's request for further time to provide documents and comments. 62. In the context of the background of the two earlier opportunities to the Applicant to provide documents; the failure of the Applicant to send any document on those two occasions; the fact that the Applicant's request made on 19 May 2008 was made on the last day before he was required to respond to the Tribunal's letter dated 21 April 2008; the fact that the documents were unspecified; and, the fact that the Tribunal gave the Applicant further time to provide documents until the handing down of its decision, make the exercise by the Tribunal of its discretion to refuse further time all the more reasonable. 18 The factual summary included in [62] by her Honour accurately deals with the history of this issue. The Tribunal discharged its obligations in relation to the appellant's requests for additional time.

Ground 1 19 In his particulars, the appellant claims that the Tribunal failed to follow proper procedure in relation to adverse information used in its decision. He also contends that he was not given an opportunity to provide further evidence to the Tribunal. He claims that the Tribunal's failure to provide an extension of time to allow him to respond to the s 424A letter and to present his arguments with supporting documents was in breach of the rule of natural justice. He further states that the Tribunal's refusal to allow him to provide further documents including documents relating to his fear of persecution in India was a breach of s 424AA. 20 Under s 424A(1) the Tribunal is required to provide the applicant with, in a way it deems appropriate in the circumstances, clear particulars of any information that it considers may be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. The Tribunal must invite the applicant to comment on or respond to it. 21 Section 424A(3)(b) provides an exemption to the obligation where the information was given by the applicant for the purposes of the review, while s 424A(3)(a) provides an exception where the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. 22 The exchanged correspondence of 21 April 2008, 18 and 20 May 2008 has been referred to above. 23 There was no obligation on the Tribunal to provide the s 424A letter. The information referred to in the letter was independent country information not specifically about the appellant and otherwise related to evidence given by the appellant to the Tribunal for the purpose of its review. As correctly observed by the learned Federal Magistrate, this information is information excluded by reason of ss 424A(3)(a) and 424A(3)(b) of the Act respectively. 24 In any case, as noted by her Honour, the appellant did not provide any further information or documents in response to the letter and as such the Tribunal was entitled to have regard to the information to which it had referred. 25 Her Honour also noted that the Tribunal was not obliged to grant the appellant the extension that he requested. Her Honour stated that the Tribunal was obliged to consider the appellant's request and give the appellant an answer - both of which it did. There was no error from the Tribunal in this regard. The Tribunal was entitled to exercise its discretion in the manner that it did. 26 The ground is not made out.

Ground 2 27 The appellant has not provided any particulars describing the delegate's breach of s 66 of the Act. 28 Section 66 relates to the manner of notification of a decision of the delegate. The applicant is to be notified in the prescribed way and the notification must, if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify the criterion. 29 The learned Federal Magistrate noted that the notification was sent by registered post to the appellant at the postal address, which was also his residential address, as identified by him in his application. Her Honour found that the letter appeared to comply with s 66 of the Act. 30 In my view, the conclusion of her Honour in this regard was correct. There was no breach of s 66 of the Act. The ground is not made out.

Grounds 3 31 In this ground the appellant refers to SZATV v Minister for Immigration and Citizenship [2007] HCA 40. Her Honour notes that SZATV relates primarily to the issue of relocation and found no relevance to the Tribunal's decision. 32 A finding may be irrational where the factual finding simply could not have been reached by any rational reasoning process. The ground of irrationality or illogicality requires a complete absence of a logical nexus between the evidence before the decision-maker, and the findings made, or inferences of fact drawn, by the decision-maker. It is similar to the concept of 'Wednesbury unreasonableness' as considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, Gummow and Hayne JJ said at [38]: the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. 33 The standard of unreasonableness connoted by the expression 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds' is a demanding one with a high threshold, just as it is relatively undemanding for the decision-maker; Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388per Santow JA at [62]. 34 The Tribunal was not satisfied that the appellant was a credible witness as he was unable to answer basic questions about his Christian beliefs and provided only scant reasons for his conversion to Christianity. It did not accept any of his claims and therefore concluded that he did not have a well-founded fear of persecution. 35 The learned Federal Magistrate, in considering this ground, noted that the Tribunal had fully considered the evidence provided by the appellant as well as independent country information, but ultimately rejected his claims. Her Honour noted that at the heart of the Tribunal's decision was its adverse credibility finding in respect of the appellant's evidence and its comprehensive rejection of his claims. Her Honour found that the Tribunal's findings were open to it on the evidence before it. Her Honour noted that the Tribunal's findings as to the appellant's credibility were a matter par excellence for the Tribunal; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. 36 The Tribunal clearly based its findings on a comprehensive analysis of the appellant's evidence and the independent country information which it obtained. Its conclusions as to the appellant's credibility were, as found by her Honour, open to it on the evidence before it. The Tribunal has not made any unsupported, unreasonable or capricious findings: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470. The Tribunal has not made any findings that could be considered irrational or illogical; all of its findings were based on logical inferences of fact drawn from the evidence before it. 37 It was for the appellant to satisfy the Tribunal that he met the criteria for being a refugee and to provide any evidence in this regard. As the Tribunal was not satisfied that he met the criteria it was obliged to uphold the decision of the delegate. 38 The ground is not made out. 39 In my opinion, the approach of the Federal Magistrate and her Honour's conclusions were entirely correct.

CONCLUSION 40 The appeal will be dismissed and the appellant is to pay the first respondent's costs fixed at $3,600. I certify that the preceding forty (40) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 4 March 2009 The Appellant represented himself:

Solicitor for the First Respondent: Sparke Helmore