SZNBX v Minister for Immigration and Citizenship

Federal Court of Australia|2009-12-01|Before: Bennett J

REASONS FOR JUDGMENT 1 The appellants are citizens of Latvia. The female appellant relies on the claims of the male appellant whom I shall call simply "the appellant". 2 The appellant claimed that he was the subject of state persecution because he had instigated legal proceedings in Latvia for a drug conviction against him to be reviewed. He told the Tribunal that he had been arrested on 22 February 2002 after three kilograms of narcotics were found in a place where he worked. He claimed that he had been falsely accused of involvement in the narcotics trade and had confessed to this in order to save his brother from also being arrested and imprisoned. He was sentenced to six years' imprisonment but was released on parole on 8 January 2007. He remained in Latvia during his parole period and contacted a lawyer who agreed to file a case seeking review of the conviction. He also sought compensation for false imprisonment. He claimed that after commencing legal action, he received threatening telephone calls and was beaten by unknown persons. He claimed to have been the subject of police searches, one with a warrant and one without. When he contacted the lawyer in November 2007 to ask about the case, the lawyer told him that there was no case, that it had disappeared from the court and that the lawyer no longer wanted any involvement with the case or the appellant. The appellant claimed that the lawyer refused to take his calls. He then began to make plans to leave Latvia because he feared that he would be the subject of further problems from the state. 3 The Tribunal was not satisfied as to the appellants' general credibility. It considered that their core claims relating to the alleged court case in 2007 had been fabricated to enhance their protection visa application. As a result, the Tribunal did not accept that the appellant was harassed as a result of his court case. It accepted that the appellant had been imprisoned for five years but found that this was because he had committed the crime alleged. The Tribunal found the appellant's claim that he had confessed under duress to be fabricated. It was not satisfied that the appellant faced any fear of persecution in Latvia.

The Tribunal's findings about the court case 4 The Tribunal's decision records at [37] that it asked the appellant if he had any documents relating to the court case or details regarding the court where the case was lodged. The appellant stated that he did not have any specific documents or information regarding the court case but that he could recite what was written by the lawyer and lodged with the court. He said that he was too scared to bring anything with him when he left Latvia. When the Tribunal commented that hiring a lawyer and filing a court case would commonly result in some paperwork and that the appellant would either have been given copies of documents or would have had access to them, the appellant stated that the Tribunal could contact his lawyer and the courts in Latvia to verify his claims. 5 The Tribunal commented that, according to the appellant, the lawyer was hostile and uncooperative towards the appellant and had told the appellant that a case did not exist in the courts. The appellant said that he did not know in which court the case was filed. The Tribunal commented that there was no investigation which the Tribunal could reasonably undertake which would yield any useful evidence regarding the court case. The Tribunal commented to the appellant that if indeed the appellant had approached the lawyer and the lawyer had prepared a case for him and the case had been filed in a court in Riga, the Tribunal expected that the appellant would be able to name the court and have access to documents relating to the case. 6 As part of its findings and reasons, the Tribunal said that it had formed the view that if indeed the appellants had initiated court proceedings as they claimed, even if the court case no longer existed, they would have had some documents relating to the case and more information regarding the court where the case was allegedly filed. The Tribunal noted that the appellants had asked the Tribunal to contact their lawyer and the courts in Latvia to verify their claims. The Tribunal noted that the appellants did not provide any information to the Tribunal regarding the lawyer or the courts in Latvia which would enable the Tribunal to conduct further investigations to verify the appellants' claims. The Tribunal concluded that no real information was provided by the appellants regarding these matters because the court case did not exist and they did not have any useful information to provide.

The decision of the Federal Magistrate 7 The application for review before the Federal Magistrate, as in the appeal, centred on the question of the provision of the lawyer's contact details. The appellants asserted in the grounds of the application that they had requested the Tribunal to contact their lawyer to verify their claims, as the Tribunal accepted, and that they were ready to provide the lawyer's contact details to the Tribunal. The appellants say, as part of their grounds of application, that they formed the view that the Tribunal was not interested in the lawyer's contact details but that the lack of those details then formed the basis, or a basis, for the Tribunal's decision to affirm the delegate's decision. Before the Federal Magistrate and in the appeal, the appellants contended that the Tribunal had failed to apply s 424A(1) of the Migration Act 1958 (Cth) (the Act). 8 Before the Federal Magistrate was an affidavit of the appellant containing a transcript, accepted by the Minister as correct, of the following exchange between the Tribunal and the appellant: Tribunal. Do you have a copy of the applicant that that [sic] went to the court? Applicant. No, I do not have it but I remember… Tribunal. No, I actually want to see the document. Can you contact your lawyer and get him to send a copy of any papers that you lodged with the court? Applicant. The problem is that the lawyer does want to keep in touch with me now, he just refused to have any contacts [sic] with me now… Tribunal. Wait. So there is no court case? Applicant. I do not have any papers on my hands but I can give you the contact number… may be you will be able to talk to that person… he will be able to provide the evidence… Tribunal. That is not my question. Is there actually a court case currently before the court in Latvia regarding this matter? (37 min. … Applicant. You know what I can do? I can give you the number of that lawyer, you can contact the lawyer, you can contact the court… Tribunal. (interrupted). You told me that there is no case… they would not speak to you… what am I supposed to do? trying… I am beginning to have serious doubts that that there is a court case or that there was a court case. I am beginning to think that you may be you [sic] just made all these up to support your application (1 h. 16 min) Tribunal. It is not really my job to make your case for you. You need to do that yourself. You should have… If there was such a court case you really needed to get some information to back your claims (1 hr. 18 min.) [emphasis in the original affidavit as provided by the appellants] 9 Following the hearing, the Tribunal gave the appellants the opportunity to listen to the tapes of the Tribunal hearing and to make any further comments. The appellant took advantage of this opportunity and provided a further written submission to the Tribunal several weeks after the hearing. On the matter of the lawyer's contact details the submission said as follows: You also said that I did not provide you with any evidence. You sad [sic] that you had no information about the lawyer and about the court case. You also said that it is up to me to provide the Tribunal with evidence. I must say, as a person who is about to make a decision on my case you can and should contact the lawyer to verify my accounts. I am aware that there is a department within the Tribunal which was established to verify such matters. I said and I am saying again - I authorize you, moreover I ask you to contact my lawyer. There is no point for me to contact him, because he will not provide me with any written evidence. However, if you contacted him he would confirm that he lodged application [sic] with the court, that I had been subjected to harm and the reason the case 'disappeared'. It is just one phone call and I do not think it is difficult for the Tribunal, for you to make such a phone call to find out the truth. [emphasis in the original] 10 It is relevant to note, as pointed out by the Minister, that the appellant did not provide the lawyer's contact details in or with that submission. 11 Federal Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal (SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12]). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries (SZHUH at [11] per Perram J). His Honour noted that in SZHUH, Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508; [2008] FCA 1803. 12 Federal Magistrate Raphael said that, in his opinion, this was not a case where the need for further inquiry was so obvious and no impediment to the conduct of the inquiry was apparent, so that the failure of the Tribunal to proceed without making enquiries constituted unreasonable conduct within Prasad. His Honour noted that it was the appellant's responsibility to make his own case and to provide sufficient information to the Tribunal that would enable the Tribunal to come to the requisite state of satisfaction (Abebe v Commonwealth of Australia (1999) 197 CLR 510). 13 Further, his Honour concluded that the failure to provide the contact details was not the only reason for the Tribunal's conclusion. The Tribunal based its decision also on the failure to provide any details of the court to which the complaint had been made and the nature of the complaint. His Honour decided that, in the end, the decision of the Tribunal was one concerning credibility and that the Tribunal had explained why it did not believe the appellants. 14 It is apparent that before his Honour, the appellants did not define the information which they said constituted information for the purposes of s 424A(1). 15 Federal Magistrate Raphael dismissed the application.

Consideration of the appeal 16 The appellants submit that the reason for the Tribunal decision to affirm the delegate's decision was that the appellants did not provide any information regarding the lawyer or the courts in Latvia which would 'enable the Tribunal to conduct further investigations'. The appellants submit that the Tribunal and Raphael FM overlooked the fact that their failure to provide the details of the lawyer and the courts was not because they did not have the lawyer's contact details, but because the Tribunal refused to take them. 17 The appellants contend that the Tribunal was obliged to state clearly what information was needed and what was not. They say that, in the absence of such "clearness", they cannot be blamed for failure to provide the information. The appellants contend that the Tribunal failed to comply with s 420 of the Act which requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. They say that it was not fair to refuse to take certain information from the appellant and then to make a decision based upon the absence of that information. The appellant contends that he was "convinced" that he needed the Tribunal's consent to accept the information in question. That follows, he says, from the transcript which, he says, makes it apparent that he tried to hand the lawyer's contact details to the Tribunal and that the Tribunal 'virtually refused to accept it'. 18 The appellants also contend that the Tribunal failed to comply with s 424A because it failed to invite them to comment on the "information" that the Tribunal did not have any information regarding the lawyer or the courts in Latvia which would enable it to conduct further investigations to verify their claim.

Section 420 and Section 425 - a fair hearing 19 The scope of the "duty to inquire" on the part of the Tribunal was recently considered in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429. The High Court stated at [24] that it is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law, even apart from s 422B of the Act. As the High Court pointed out at [25], considerations of a failure to make obvious inquiries or a duty to inquire direct consideration away from the question of whether the decision of the Tribunal is vitiated by jurisdictional error. 20 However, the High Court continued in [25]: It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. 21 This raises a number of considerations, namely: · whether the inquiry that the Tribunal failed to make was an obvious enquiry; · whether it concerned a critical fact the existence of which was easily ascertained; and · whether it supplied a sufficient link to the outcome to constitute a failure to review. 22 The existence of a court case in Latvia was a critical fact in the appellants' claim. The lack of information concerning the claimed Latvian case was critical to the Tribunal's conclusion that there had been no such case. 23 However, it is necessary to examine the basis of the Tribunal's conclusion at [61] that it was not satisfied as to the appellants' general credibility and finding that they fabricated their core claims relating to the alleged court case. The Tribunal said at [62]: The Tribunal has formed the view that if indeed the applicants had initiated court proceedings as they claim, even if that court case no longer exists, they would have had some documents relating to the case and more information regarding the court where the case was allegedly filed. The applicants claim that it was too dangerous for them to have or transport documents relating to the case. However, the Tribunal has formed the view that the applicants have no documents, and only vague information regarding the court where the alleged court case was filed, because there was no court case and they did not instigate any legal action in Latvia against the police, the authorities, or the government. The Tribunal finds that these claims were fabricated by the applicants to enhance their protection visa applications and it does not accept as credible the applicants' claim that they instigated any action against individual police officers, government officials, the authorities, or the government of Latvia. 24 Then, at [63], the Tribunal referred to the fact that the appellants asked the Tribunal to contact their lawyer and the courts in Latvia to verify their claims. The Tribunal commented that they did not provide any information regarding the lawyer or the courts which enabled the Tribunal to conduct further investigations. 25 The Tribunal's reasons show that Tribunal's conclusions as to the existence of the court case were based on the appellants' lack of knowledge about that case and the court in which it was allegedly conducted and their failure to provide documents relating to that case. The Tribunal also recorded the appellants' request that it contact their lawyer and the courts in Latvia and explained why it could not do so. 26 The question is not what was in the minds of the appellants but whether there was jurisdictional error on the part of the Tribunal that vitiates its decision (SZIAI). It may well be the case, as the appellants contend in their submissions on the appeal, that the appellants were awaiting a response from the Tribunal to ask for the details of the lawyer which, according to the appellants, they had proferred to the Tribunal and which the Tribunal had refused to accept. The appellants say that after that refusal they assumed that they could not force the Tribunal to accept the details. They assumed that if the Tribunal thought that they were important, the Tribunal would ask them to submit those details. There is no evidence from the appellants, who appeared in person assisted by an interpreter, but a reading of the transcript does support the appellants' case in this regard. 27 However, as the Tribunal noted in its reasons, in the further submissions sent by the appellants to the Tribunal after the hearing, they again asked the Tribunal to contact the lawyer but did not actually provide the lawyer's contact details. The Tribunal would be forgiven for thinking that if the appellants really did have those details, they would have provided them at that stage. The appellants say that they were not given the opportunity to provide the lawyer's details. While that may have been the case at the Tribunal hearing, that contention cannot stand in view of the opportunity given by the Tribunal to the appellants to give any further information to it in writing after the Tribunal hearing. It was not obvious to ask yet again for further information. 28 The next question is whether, even if the Tribunal did have the lawyer's details, it had a duty to inquire of the lawyer whether there had been a court case. This would have required the Tribunal first to ask the appellants for the lawyer's contact details and then to make inquiries of the lawyer. The appellants had told the Tribunal that they themselves did not contact the lawyer because the lawyer had refused to have anything more to do with them or to assist them in any way. In those circumstances, it would not have been obvious to the Tribunal to contact the lawyer. Nor was it apparent that the critical fact, the existence of the court case, could have been easily ascertained from the unhelpful lawyer. The indications available to the Tribunal were that, even if it had the contact details, the lawyer would not assist the appellants nor provide the details of the appellant's alleged court case. The indications were that the outcome would not have been different even if the Tribunal had tried to contact the lawyer (Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153 at [50] per Jagot and Foster JJ). 29 Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims (Abebe at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant's case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his "nursemaid" (Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [199]-[200] per Allsop and Graham JJ - appeal allowed by the High Court but not on this point). 30 The failure by the Tribunal to press the appellants to provide the lawyer's contact details could not, in the circumstances, be said to be so unreasonable as to support a finding that the Tribunal decision was affected by jurisdictional error (SZIAI at [26]). As it was the responsibility of the appellants to make out their own case and in the context of the failure to provide any documents or details of the court case, it was reasonable for the Tribunal to leave the onus on the appellants to provide the contact details of the lawyer to the Tribunal if they wished the Tribunal to make further inquiries. Given the two opportunities the appellants had to provide more information, in particular in the further written submissions sent after they had been provided with the tapes of the hearing, it was not unreasonable for the Tribunal to find that the appellants did not provide any real information because the court case did not exist and they had no useful information to provide. 31 The appellants have not established jurisdictional error by lack of compliance with s 420 or s 425.

Section 424A 32 During the hearing, the Tribunal commented to the appellants that the deficiencies in the evidence relating to court case raised questions about the credibility of all the appellants' claims. The failure on the part of the appellants to provide details about the lawyer or the courts in Latvia constituted a defect in the material given to the Tribunal by the appellants. The lack of provision of those details formed part of the reasoning process of the Tribunal as it weighed the evidence as to the existence of the court case by reference to the available information. Neither the lawyer's contact details nor the fact that they were not given by the appellants to the Tribunal constitute information for the purposes of s 424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609at [18]). 33 In any event, the existence or otherwise of the lawyer's details and the fact that the appellant did or did not have such details would have been information given to the Tribunal by the appellants within the meaning of s 424A(3)(b). 34 The Tribunal did not contravene s 424A of the Act.

Good faith 35 A ground of the appeal, not raised before the Federal Magistrate, is that the Tribunal did not act in good faith. The ground is not particularised and there is no evidence to support it. There is no basis for this ground. 36 The appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 1 December 2009 Counsel for the Appellants: The Appellants appeared in person assisted by an interpreter.

Solicitor for the First Respondent: DLA Phillips Fox

Migration Act 1958(Cth)ss 420, 424A, 425

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