SZNMO v Minister for Immigration and Citizenship

Federal Court of Australia|2009-11-23|Before: Rares J

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrate's Court refusing the appellant constitutional writ relief in respect of a decision made by the Refugee Review Tribunal on 20 March 2009 to affirm the decision of a delegate of the minister not to grant the appellant a protection (class XA) visa: SZNMO v Minister for Immigration [2009] FMCA 970.

The Delegate's Decision 2 The appellant is a citizen of India and arrived in Australia in August 2008. Over a month later he applied for a protection visa. Following an interview with the minister's delegate, the delegate determined to refuse to grant the appellant the visa. The delegate gave detailed reasons. These included relying on inconsistencies between the account given by the appellant in his application for the visa and his account of the circumstances impelling him to leave India given at the interview. The delegate also identified a number of instances in which the appellant had travelled to other countries prior to arriving in Australia in July 2008 and then returning to India before again arriving here. The delegate noted that the fact that the appellant had travelled overseas, including to and from Australia, and returned to India, suggested that he did not fear persecutory harm, and accordingly rejected the application.

The Tribunal's Decision 3 The appellant applied for a review of that decision to the tribunal and submitted further material in support of his claim to refugee status. The application to the tribunal was filed on 13 January 2009. The tribunal wrote to him the next day acknowledging receipt of his application and informing him of the procedures that it would adopt prior to determining whether or not he would be afforded a hearing. In the course of that letter the tribunal said that he should immediately send any documents, information or other evidence he wanted the tribunal to consider. 4 At the hearing before the tribunal the appellant gave evidence which the tribunal exhaustively summarised in its decision record. Essentially the appellant claimed that he had joined the All India Anna Dravida Munnetra Kazhagam (AIADMK) political party in Tamil Nadu where he lived. He claimed to have been the victim of persecution by political opponents from the Dravida Munnetra Kazhagam party (DMK), and the police, who accused him of being involved with another organisation, the Tamil Nadu Liberation Army. He claimed that he had been arrested by the police but was released after his parents had intervened, with the assistance of the AIADMK party. 5 He said that he had joined that party in April 2006, about a month before the state elections and claimed to have been targeted by political opponents from then on. He claimed that he had been detained three times between 2006 and 2008. The appellant claimed that he escaped to Singapore and Malaysia in April 2008 but found that it was not safe for him to be there, so he returned to India. He then claimed that when he arrived for the first time in Australia, he had come with an agent who was afraid that he would get into trouble if the appellant overstayed his visa, so that he locked him in the hotel room and they returned the next day to India. After that he claimed he hid in Chennai until he was able to return to Australia. During the course of the hearing before the tribunal the appellant also claimed that the AIADMK were targeting him for being too popular. It pointed out to him that he had not made those claims beforehand. 6 The tribunal found that the appellant's claims of being involved with the AIADMK lacked credibility. And, it was not satisfied that he had provided a credible account of his circumstances in India. The tribunal did not accept as credible his claims that he had been actively involved with the AIADMK in Tamil Nadu. The tribunal considered that it was implausible that the appellant could have been involved with that party during the 2006 election, or even had an interest in it, and yet have the limited knowledge concerning the party and its performance in that election that it found he had. 7 The tribunal formed the view that the appellant had never been a member of the party and had fabricated his claims relating to his involvement with it to enhance his protection visa application. The tribunal also rejected the appellant's claim of being the victim of political persecution from the political opponents of his claimed party, namely the DMK, "rowdies" and authorities connected with them. The tribunal found those claims were also lacking in credibility and had been fabricated by the appellant to enhance his protection visa application. It similarly rejected as not credible, his claims to have been targeted by the authorities for political reasons, to have been detained by the authorities in Tamil Nadu for political reasons. The tribunal did not accept that there were any politically motivated false cases pending against the appellant in India. Again, it found that those claims had been fabricated by the appellant to enhance his protection visa application. 8 Accordingly, the tribunal found that it was not satisfied that the appellant faced any real chance of serious harm in India by his political opponents or the authorities, such as gave rise to a well-founded fear of persecution for reasons of political opinion or any other convention ground, and affirmed the decision to refuse him a protection visa.

The proceedings in the Federal Magistrates Court 9 The appellant's application before his Honour relied on one ground of appeal, namely that the tribunal had not sent him a letter inviting him to comment on information adverse to him and after the hearing had not given him a chance to get evidence from India. The appellant later made a written submission to his Honour, the substance of the first and second grounds of which are the basis of his notice to appeal to this court. In essence, the written submission asserted that the tribunal questioned the appellant during the hearing and thus invited him to give it information for the purposes of s 424 of the Migration Act 1958 (Cth). He contended that because the tribunal's questions invited answers from the appellant, it was required to write to him in accordance with ss 424(3)(a) and 424B and in addition, that the tribunal was required to specify the way in which the additional information could be given and the period in which the information could be given. His second ground elaborated on this by complaining that the tribunal member was also required to put information to him in accordance with s 424A by writing to him and identifying information which the tribunal considered would be the reason, or part of the reason for affirming the decision under review. He then complained that the tribunal denied him procedural fairness because it reached an adverse conclusion that he was not credible, a finding he asserted was not obviously open on the known material, without giving him an opportunity to be heard in respect of that finding. Last, he asserted that the tribunal had failed to investigate his claims and its decision was affected by actual bias. 10 His Honour rejected the ground in the application and submissions. He pointed out that the tribunal was not required to provide the applicant with a draft of its findings or invite comment on them. That was undoubtedly correct: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. His Honour found that there was no evidence that the tribunal had invited the appellant to give any information additional to that which it had already obtained. His Honour inferred that the appellant had been referring in that regard to the tribunal's letter to him of 14 January 2009. He found that that was not a letter given pursuant to s 424 and that, accordingly, ss 424(3)(a) and 424B were not relevant. The trial judge relied for that finding on a recent decision of the Full Court of this Court: Minister for Immigration v SZNAV [2009] FCAFC 109. 11 His Honour also found that there was no evidence that the tribunal had given any undertaking to afford the appellant with a further opportunity to make submissions about inconsistencies in his accounts. The trial judge also relied on SZBYR 235 ALR at 616 [18] to find that mere inconsistencies in evidence were not, themselves, information. That was undoubtedly correct. 12 His Honour found that it was for the appellant to make his own case before the tribunal and that on the evidence before him, the appellant had failed. His Honour noted that the tribunal had listened to the tape of the interview between the appellant and the delegate. It then had questioned him on that interview and provided him with an opportunity to expand on what arose from it. In doing so, the tribunal raised inconsistencies in the appellant's evidence on which it requested his comments. His Honour found that process accorded with the relevant procedural fairness obligations.

This Appeal 13 The notice of appeal asserted that his Honour failed to consider the ground in the application below of the failure to comply with s 424 of the Act. It also asserted that at the hearing the tribunal had invited the appellant to give information in addition to that which the tribunal had obtained but did not specify what that was. I will infer that it consisted of the interview with the delegate. The notice of appeal asserted that the tribunal asked questions that called for information that the appellant had not already provided to the tribunal or which it had not obtained in another way, and that this engaged s 424(3)(a) and (b) in the way I have elaborated. 14 His Honour was correct for the reasons he gave, to reject these grounds. Moreover, the tribunal had raised with the appellant issues to do with information in his interview with the delegate, including inconsistencies in his accounts as given during the course of the interview with the delegate and the tribunal. These matters were issues before the tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 163 at [35] 164 [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 15 In my opinion, these matters were matters on which the tribunal was entitled, during the hearing to ask questions and seek information to the extent such questioning may be capable of being seen to amount to information. The purpose of a hearing under s 425 of the Act at which the appellant is to give evidence, is so that he or she can provide the information which his evidence gives to the tribunal. The Act does not require the tribunal then to respond with its views about that evidence. 16 Moreover, to the extent that issues were raised going to credibility or perceived inconsistencies, the tribunal on the evidence appears to have acted within its province under s 424AA of the Act when it. It was entitled to invite the appellant to respond to matters that it put to him during the hearing. The tribunal was not obliged to do anything further to provide a fair hearing: see s 422B. 17 For these reasons I am of opinion that his Honour was correct to have dismissed the application and that the appeal fails. The Minister relied on the affidavit of Bernadette Rayment, sworn 18 November 2009, to seek a fixed sum costs order of $2500. I am of opinion that that order should be made on the basis of Ms Rayment's affidavit.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 3 November 2009 The Appellant: Appeared in person

Solicitor for the First Respondent: N Johnson of Sparke Helmore

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