SZNLT v Minister for Immigration and Citizenship - [2009] FCA 1332 - FCA 2009 case summary — Zoe

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SZNLT v Minister for Immigration and Citizenship

[2009] FCA 1332

Federal Court of Australia|2009-11-20|Before: Cowdroy J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2009-11-20

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Smith delivered on 25 August 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 19 March 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa to the appellant.

[2]

BACKGROUND 2 The appellant is a citizen of India who arrived in Australia on 28 July 2008. On 8 September 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 1 December 2008. On 24 December 2008 the appellant applied to the Tribunal for a review of that decision. 3 In his application for a protection visa, the appellant claimed that in July 2000 he became employed at a garment factory, where he was elected union leader. The appellant claimed that the owner of the factory was a BJP (a political party) leader, and the appellant was sacked in the middle of 2004 as a result of his fights with the management for the benefit of his co-workers. The appellant claimed that in August 2005, he and a friend started their own garments factory which became a successful business. The appellant claimed he was then approached by a BJP leader and told that if he wanted to continue his business he would have to donate to the BJP, even though the leader knew that the appellant was a union leader and executive member of the CPI(M) (which is a political party). The appellant stated that he did not make the donation to the BJP as demanded, and was attacked by BJP thugs while travelling with another friend. The thugs also allegedly ransacked the appellant's business and attacked his workers. 4 The appellant stated that he moved to Dubai in September 2006. He claimed that when he returned to Bangalore some three months later, he found that his friend (with whom he had founded the garment business) had been killed. The appellant claimed that this made him mentally ill, leading to him being hospitalised. He claimed that he was threatened by BJP thugs to keep quiet about the murder.

[3]

THE TRIBUNAL'S DECISION 5 The Tribunal found that the appellant was not a credible witness. It found that his claims before the Tribunal had changed significantly from his claims contained in his earlier statement to the delegate of the Minister. For example, in the appellant's written submission provided with his Application, his main claim was that he was attacked because of his political allegiances whereas in oral submissions before the Tribunal he appeared to suggest it was his murdered friend's political allegiances that led to his fear of persecution. 6 In a previous and unrelated application for a business visa in 2008, the appellant provided documents and completed the application suggesting that he had a bachelors degree from Mahatma Ghandi University and his field of work was as a 'dance master'. During the present application for a protection visa the appellant maintained that he had no degree, had only completed 12 years of schooling and worked as a garment manufacturer. The Tribunal put the discrepancy to the appellant and he stated that the previous application had been completed for him by a migration agent and he had merely signed it, and was thus unaware of its contents. The Tribunal found that the appellant 'had knowingly and intentionally provided false documents; or caused such documents to be provided on his behalf, in order to achieve a migration outcome'. The Tribunal found that this reflected poorly on the appellant's overall credibility in the present protection visa application. 7 The Tribunal found that the appellant's evidence regarding his involvement in the CPI(M) was vague, and that he showed limited knowledge of the party. On this basis, the Tribunal did not accept that the appellant would be targeted by opposition parties, and found that there was no real chance that the appellant would be persecuted as a result of his political opinion if he returned to India. 8 The Tribunal also noted the vagueness of the appellant's evidence about the murder of his friend and the supposed car accident the appellant was involved in that he claimed had been caused by BJP supporters. While the Tribunal accepted that the appellant had been injured in a car accident, it found that the appellant could not prove that such event was anything more than a genuine accident. 9 The Tribunal also drew support for its conclusions from the appellant's return to Bangalore from Dubai in 2006 (suggesting he did not fear for his safety there) and the delay in his leaving India to come to Australia following the supposed attacks against him and the alleged murder of his friend (again suggesting he did not fear for his safety). 10 Based upon its findings, the Tribunal rejected each of the elements of the appellant's refugee claims. It found that there was no real chance that he would be persecuted for a Convention reason if he returned to India now or in the reasonably foreseeable future. The Tribunal therefore affirmed the decision of the delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

[4]

FEDERAL MAGISTRATES COURT 11 By Application filed in the Federal Magistrates Court of Australia on 16 April 2009 ('original Application'), and by Amended Application filed on 22 June 2009, the appellant sought judicial review of the Tribunal's decision. 12 Before Federal Magistrate Smith the appellant claimed in the original Application: 1. The Tribunal applied the Wrong test: 1. The Tribunal did not give to the applicant before the hearing the information that it had about the political history and it did not give to the applicant the information it had about Kerala politics from other sources . The Tribunal used this information while making the decision. This was against section424A of the Migration Act 1958. 2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant's claims were vague and inconsistent, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters. 3.The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 4. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that: a.it failed to properly apply the consideration that applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here. [all errors are those of the original Application] 13 The second and third grounds in the Amended Application repeated the grounds above. The first ground (and only new ground) of the Amended Application contended: 1. My first concern is the great weight that the Tribunal place upon my return from UAE to India as evidence that my fears were not genuinely held. In the matter of SZMDS v MIAC [2009] FCA the Court held that the Tribunal must have a rational basis for finding that an applicant's basis for returning to his country of nationality demonstrates that the applicant did not have a genuine fear of persecution in that Country. I have provided rational reasons as to why I returned to India and Tribunal did not consider that therefore, committed judicial error. 14 In respect of the first ground of the original Application, the Federal Magistrate stated that the Tribunal was under no obligation under s 424A(1) of the Migration Act 1958 (Cth) ('the Act') to give a written invitation to the appellant to comment on general country information about Kerala politics, since such information was excluded by s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572. 15 In respect of second ground of the original Application, the Federal Magistrate found that, on the basis of the Tribunal's description of its hearing, the appellant was fairly taken to the various concerns which ultimately caused the Tribunal to disbelieve the appellant. The Tribunal's adverse conclusions were, in his Honour's opinion, rational and reasonably open on the material before it. 16 In respect of third ground of the original Application, the Federal Magistrate stated that it was not the function of the Court to apply the Convention definition, and that in any event the Tribunal's conclusion turned upon its failure to be satisfied by the appellant's claimed history of persecution, rather than upon the application of any particular element in the Convention definition. 17 In respect of fourth ground of the original Application, the Federal Magistrate noted that it is now well established that the Tribunal is not obliged to consider an applicant's claims upon the hypothesis that they are based on truth, if it has arrived at firm conclusions to the contrary. The Federal Magistrate cited Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220 at 239-241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]-[14] and SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]-[53] in support of this contention. 18 In respect of first ground of the Amended Application, the Federal Magistrate distinguished the present matter from the decision in SZMDS v Minister for Immigration and Citizenship and Another (2009) 107 ALD 361. The Federal Magistrate stated that, in the present case, the Tribunal's findings regarding the appellant's credibility formed a rational and logical basis for its conclusions. 19 Having found no jurisdictional error in the Tribunal decision, Federal Magistrate Smith dismissed the Amended Application.

[12]

27 The Court notes that the reference to 'additional information' in ground 1(a) appears to refer to s 424 of the Act before it was amended by items 9 and 10 of Schedule 1 of the Migration Legislation Amendment Act (No. 1) 2009 (Cth) on 15 March 2009 as the current version of the section only refers to 'information', without the distinction between 'information' and 'additional information'. Nevertheless, the Tribunal's hearing was completed on 12 March 2009, so at the relevant time the previous version of s 424 was in force. 28 Regardless of the existence of the distinction between 'information' and 'additional information', ground 1(a) of the appeal is nonsensical. The ground of appeal states that at the hearing of the appeal before it, the Tribunal sought additional information to that which had been obtained previously. The further explanation provided at i. does no more than repeat what is raised by the ground above it. The reason the ground is nonsensical is because the Tribunal does not seek 'additional information' by means of a hearing pursuant to s 424, it invites an applicant to appear before it to 'give evidence and present arguments relating to the issues arising in relation to the decision under review' pursuant to s 425 of the Act. 29 Further, the only time that the phrase 'additional information' is mentioned in s 424 is in s 424(2) which refers to the Tribunal's ability to seek additional information by means of an invitation to a person to provide that additional information. Section 424(3) specifies the requirements of that invitation, namely that it comply with s 441A of the Act. That section outlines the requirements the Tribunal must comply with when providing documents to a person, for example, by means of fax or post. It is an absurdity to suggest that if the Tribunal sought 'additional information' in the middle of a hearing that the Tribunal would have to post a letter to the applicant appearing before it requesting that he or she provide additional information in answer to the question being asked of the applicant in the hearing. The Court finds no merit whatsoever in the ground of appeal.

[20]

37 Pursuant to the decision of SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415 at [90], s 424AA of the Act is an optional section that the Tribunal has a discretion to invoke. However, the Tribunal need not comply with the requirements of s 424AA if it complies with s 424A. Therefore, if the Tribunal did not choose to invoke s 424AA, it is not bound by the requirements of s 424AA as a whole and s 424AA(b)(iv) is irrelevant. Even if a Tribunal does fail to comply with s 424AA, such failure does not constitute a jurisdictional error as long as s 424A is followed. 38 It is not clear, having regard to the Tribunal's decision (and absent a transcript), that the Tribunal sought to trigger s 424AA. The Tribunal Hearing record of 12 March 2009 has the box ticked 'No' in answer to the question 'Did the applicant request time to comment/respond under ss359AA/424AA?'. Under this box is another box asking 'Did the applicant request time to provide any other information?'. This box is ticked 'Yes'. This would suggest that the Tribunal did not invoke s 424AA, as, had it done so, it would be likely that the first box would have been ticked 'Yes' (given the appellant requested time to provide information). The Tribunal explained at [91] of its decision that the appellant: …repeatedly referred in the course of the hearing to the provision of further evidence. He has not indicated what specific evidence he wished to provide, other than a medical report concerning the x-rays he took in December 2006. The Tribunal did not consider such evidence to be necessary as it accepted that the applicant had been involved in an accident at that time. The Tribunal formed the view that the applicant has had ample time since his application was made to provide any evidence to support his claims, whether or not he had to find another person to send such evidence to him. For this reason, the Tribunal determined not to offer the applicant any further time to present evidence. 39 The Court can find no error with the Tribunal's decision to not adjourn in the circumstances. Indeed, s 424AA(3)(iv) does not mandate that a Tribunal must adjourn if requested. Rather, it requires it to do so 'if the applicant reasonably needs additional time'. The Tribunal expressly found that any request for further time would not have been a reasonable need, because the appellant had had more than adequate time to provide such evidence. 40 Further, as stated, s 424AA(3)(iv) is only relevant if s 424AA as a whole has been invoked, and it does not appear that this was the case. Even assuming that s 424AA was invoked and the Tribunal did not comply with its requirements, the Tribunal did comply with the requirements of s 424A. It sent to the appellant letters pursuant to s 424A on 29 January 2009 and 11 February 2009. Both those letters clearly comply with the obligations placed on the Tribunal by s 424A. Therefore, even if s 424AA was triggered by the Tribunal and the Tribunal failed to comply with the requirements of s 424AA, the Tribunal complied with the requirements of s 424A. Therefore, pursuant to SZMCD, no jurisdictional error was made by the Tribunal and the ground has no merit

SZNLT v Minister for Immigration and Citizenship

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Judgment (26 paragraphs)

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