SZOJP v Minister for Immigration and Citizenship

The Delegate's Decision 4 A delegate of the Minister accepted some aspects of the appellant's claimed fear of persecution, including his claim to have been a member of the HVP. The delegate also accepted that the appellant had been attacked on one occasion during an election campaign but considered that the attackers had not sought him out for violence on political grounds and that the violence was of a random nature. The delegate accepted that the applicant had assisted people in India, but was not satisfied that the applicant was actively engaged with assisting poor and disadvantaged groups as he had claimed. Ultimately, the delegate found that the applicant did not have a genuine fear of harm, and that there was not a real chance of persecution in the event that he returned to India.

The Tribunal's Decision 5 The Tribunal went further than the delegate in its factual findings. The Tribunal member set out, in some detail, the contents of the appellant's statutory declaration, and came to the view that the appellant's claims were "a complete fabrication." 6 The Tribunal pointed, in particular, to the appellant's claim in his statutory declaration that he had been offered the position of general secretary of the HVP in March 2007, whereas he had told the Tribunal member that he held that position since 2004. The Tribunal did not accept that someone who claimed to have been the secretary of a political party would have given such a confused and contradictory account of this matter. 7 The Tribunal also pointed to inconsistencies in the appellant's claims and the independent evidence available to the Tribunal in country information. That inconsistency was concerned, in particular, with the appellant's account of incidents involving clashes with the police and other political opponents (see 0910213 [2010] RRTA 256 at [55] - [56]). 8 The Tribunal concluded that, having regard to internal inconsistencies in the appellant's claims and the fact that his claims were inconsistent with independent evidence available to the Tribunal member, the applicant was never involved in the HVP or that he was not the general secretary of that party in his village (see 0910213 [2010] RRTA 256 at [60]). 9 The Tribunal did not accept that the appellant was involved in campaigning for the HVP, nor that he was involved in political activity as someone trying to help the Dalits or other disadvantaged people. The Tribunal did not accept that the appellant was ever attacked or threatened because of his involvement in political activity or that his place of business was attacked forcing him to stop his business for reasons stemming from his involvement in political activity. 10 The Tribunal therefore did not accept that there was a real chance that the appellant will be persecuted for reasons of his political affiliation if he returns to India now or in the reasonably foreseeable future.

The Federal Magistrate's decision 11 The application for judicial review in the Federal Magistrates Court raised four grounds of review. 12 Before dealing with those grounds, Nicholls FM noted the appellant's assertion that he was not feeling well on the day of the hearing before the Tribunal. The Federal Magistrate also noted that the appellant renewed the claim that he was not feeling well on the date of the hearing in the Federal Magistrates Court. 13 His Honour observed that there was no evidence to support the appellant's bare assertion that he was unwell at his appearance in the Tribunal, and observed that this was insufficient to establish a breach of s 425 of the Act. Moreover, his Honour did not accept that there was any basis to grant an adjournment of the hearing in the Federal Magistrates Court, notwithstanding the appellant's claim that he was again feeling unwell. 14 The Federal Magistrate stated that the issue which determined the review before the Tribunal was the Tribunal's comprehensive rejection of the credibility of the appellant's factual account of what he said had occurred in India, which underpinned the appellant's claim to fear persecutory harm. His Honour pointed out that the Tribunal's comprehensive disbelief of the appellant's evidence and his claims were squarely put to him for comment at the hearing: SZOJP v Minister for Immigration and Citizenship [2010] FMCA 571 at [41]. The Federal Magistrate observed that the Tribunal went through each aspect of the appellant's factual account of what he said occurred in India, and made adverse findings in relation to each aspect of those claims: SZOJP v Minister for Immigration and Citizenship [2010] FMCA 571 at [46]. 15 To the extent that the appellant's grounds of review in the Federal Magistrates Court sought to assert a denial of procedural fairness, the Federal Magistrate observed that the Tribunal was not required, by s 424A(1) of the Act to put its adverse views on his evidence to him for comment, because those views do not constitute information, for the purposes of s 424A(1). His Honour referred to the authority of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [15] ("SZBYR"). His Honour also referred to the provisions of ss 424A(3)(ba) and 424A(3)(b) of the Act respectively, and pointed out that country information relied upon by the Tribunal falls within the exception contained in s 424A(3)(a). 16 The learned Federal Magistrate also referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL") pointing out that the Tribunal may discharge its obligations under s 425 by providing the applicant with the opportunity to give evidence and present arguments relating to the issues. His Honour observed that this was what the Tribunal had done in the course of the hearing.

Appeal to this Court 17 The appellant's Notice of Appeal filed 29 July 2010 contains seven grounds of appeal. Those grounds are numbered 2 to 8 in the Notice of Appeal. With the exception of ground 3, all of the appellant's grounds of appeal constitute an impermissible request for merits review. 18 The short answer to those grounds is to be found in what the High Court said in SZBEL at [25]. As the court there observed, what is required by procedural fairness is a fair hearing not a fair outcome. It is not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes not its actual decision. 19 The only ground of appeal which seeks to raise an issue of procedural fairness is ground 3. However, the answer to this is to be found in the terms of s 424A(3)(a) of the Act. There was no obligation on the Tribunal to provide the appellant with an opportunity to comment on the independent country information which the Tribunal took into account in rejecting the appellant's claims. Section 424A(3)(a) exempts from the duty of disclosure information that is not specifically about the applicant or another person, and is just about a class of persons of which the applicant or another person is a member. 20 The exception contained in this section has been interpreted in a large number of decisions of the court. The overwhelming affect of the decisions of the Court is to interpret the relevant subsection as excluding information which is not specifically about an applicant or another person, and the reference in s 424A(3)(a) to the "class of persons" is a provision designed to underline the specificity required, and not a separate requirement. This was stated by Merkel and Hely JJ in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [138]. As I have said, there are a number of other authorities to the same effect with the only contrary authority being the decision in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 (see in particular [31]). 21 As the learned Federal Magistrate observed, the critical issue which resulted in the rejection of the appellant's claims was the Tribunal's comprehensive rejection of the factual account given by the appellant. It is clear from [40] - [49] of the Tribunal's decision that the Tribunal member put each of its concerns about the credibility of the appellant's claims to him in the course of the hearing. The Tribunal said at [48] that the presiding member had put to the appellant all of the information about his claims to him because it suggested to the Tribunal member that the claims were a fabrication. Whilst it is true that the Tribunal was not required to put its internal thought processes to the appellant, there can be no error in the Tribunal member doing so. 22 The decision of the High Court in SZBYR is authority for the proposition that the term, "information" does not encompass the Tribunal's subjective appraisals, thought processes or determinations: see, in particular, [18]. That decision was recently reaffirmed by the High Court in Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [9]. 23 Nevertheless, in the present case, the Tribunal member pursued a process in accordance with s 424AA which exposed all of the issues and this was more than sufficient to satisfy any obligation which the Tribunal member may have had in the present case. In particular, the course which the Tribunal followed has the effect that no issue arises of the kind which occurred in SZBEL because the Tribunal member put all of its concerns to the appellant. 24 The only other issue which I need to address is the possibility that the ground 6 of the Notice of Appeal may suggest that the Tribunal was required to investigate the appellant's claims. 25 However, that ground cannot be supported, as the High Court recently observed in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [26], the duty imposed upon the Tribunal by the Migration Act is a duty of review. A failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained may, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. That may, in some cases, be sufficient to ground a finding of jurisdictional error, but such cases are rare and exceptional: see Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60]. 26 There is nothing in the present case to suggest that there was any obvious inquiry which the Tribunal failed to make, and in those circumstances, there can be no suggestion of jurisdictional error on the ground stated in ground 6 of the notice of appeal. For these reasons, I have come to the view that the appeal must be dismissed with costs. Accordingly, those are the orders I will make. I certify that the preceding twenty six (26) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson .