SZQQA v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Judge of the Federal Circuit Court (Judge Manousaridis) dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 23 June 2013. The Tribunal affirmed a decision of a Delegate of the Minister refusing to grant the appellant a protection visa. The decision was the second decision given by the Tribunal after an earlier decision affirming the Delegate's decision was set aside in SZQQA v Minister for Immigration and Border Protection & Anor [2013] FMCA 231. 2 The appellant claimed to have a well-founded fear of persecution in India, on political grounds. 3 The factual basis upon which the appellant claimed to fear persecution is set out in [1] of the reasons of the Tribunal and [16] of the decision of the Circuit Court judge. In summary, the appellant says that he and his family are supporters of the Congress Party and that in 1991, his brother was killed by police during a fight between supporters of the Congress Party and the Communist Party (CPIM). He says that his father then brought criminal charges against the police for his brother's death, but the police retaliated by charging the appellant with the murder of his brother. 4 The appellant says that he was not aware of the charge against him until 2011. But in the meantime, in 1996 and 2010, he says that he was attacked by police. He also says that in 2010 during a gathering to commemorate the death of his brother, the police made him sign a piece of paper stating that he would not commemorate his brother's death again. The Tribunal accepted that the appellant had witnessed the shooting of his brother, but it rejected his other claims on credibility grounds. In particular, the Tribunal reasoned that if the police had wanted to prevent him from commemorating his brother's death, they could have arrested him on the murder charge at any time after 1991. 5 The appellant raised three grounds of judicial review in the Circuit Court. Only one is pressed on the appeal. That ground is that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act) because it did not give him written particulars of information it considered would be the reason, or part of the reason, for affirming the decision under review. The appellant relied on two items of information. The first was oral evidence given by the appellant before the delegate, and also at the Tribunal hearing to the effect that in 1996 and 2010, he had been taken by the police in Kerala. The second item of information was a document purporting to be a court order made by a magistrate in India indicating that the appellant had been charged in connection with the killing of a policeman in 1991. 6 The Circuit Court judge found that neither of these items constituted information falling within s 424A(1)(a) of the Act. His Honour also found that the second item of information fell within the exception stated in section s 424A(3)(b). The appellant argues that the Circuit Court judge was in error in each of those findings, but in my opinion no error is disclosed. His Honour found that the first item did not fall within s 424A(1)(a) because it did not in its terms constitute a rejection, denial or undermining of his protection claims. 7 In doing so, his Honour applied the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]. His Honour observed at [24] of his reasons that the appellant's evidence of having been taken in 1996 and 2010 was similar to the relevant portions of the statutory declaration in SZBYR that the High Court held not to be information to which s 424A(1) applied. 8 His Honour said it was evidence which, if believed, would have been a relevant step towards rejecting, not affirming the decision under review. The appellant seeks to distinguish SZBYR. He submits that the inconsistency between the statutory declaration and the evidence was not revealed until the hearing in that case. But in my opinion that is not a sufficient basis upon which SZBYR can be distinguished. Here, as the Tribunal made clear in [26] of its reasons, it did not take into account any inconsistencies in the appellant's evidence. Rather, the problem with the appellant's account was more fundamental. This was because the Tribunal simply did not accept his evidence on credibility grounds. 9 It is true that the Tribunal in its reasons at [26] proceeded upon a hypothesis (which it subsequently rejected) about the truth of the assertion that the police were threatening to charge him in 2010 with a different charge from murder. But this was merely to test the plausibility of his evidence. Counsel for the appellant put a number of submissions as to why this was consistent with the view that the evidence that he was taken into custody in 1996 and 2010 was information within s 424A(1). However, in my opinion, no matter how one approaches this question, there is no escape from the proposition that the information on which the appellant now relies is part of the evidence he relied upon in support of his claimed fear of persecution. 10 It follows that the evidence did not contain in its terms a rejection, denial or undermining of the appellant's claims to be a person to whom Australia owed protection obligations. Rather, if the appellant's evidence was to be believed, it would have been a relevant step towards rejecting not affirming the decision under review: see SZBYR at [17] and Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22]. The observations of the plurality in SZBYR at [18]-[20] serve to emphasise the fallacy in the appellant's argument. 11 The appellant's real complaint is that the Tribunal did not accept his evidence as part of its subjective appraisal of the appellant's credibility. That is not information to which s 424A(1) applies. I reject the appellant's submission that the evidence originally given to the delegate and reiterated before the Tribunal is somehow to be seen as separate from the claim to have a well founded fear as initially expressed in his protection visa application. I also reject the submission contained in [23] of the appellant's written submissions that the evidence that the appellant was taken in 1996 and 2010 was part of the reason because, but for its existence, there would have been no reason for rejecting the appellant's claim to fear harm by the police in Kerala in the future. 12 Without that evidence, a significant part of the evidentiary support for the appellant's claim to have a well founded fear of persecution would have been removed and there would have been nothing to reject. The submission is therefore, in my opinion, without any substance. 13 As to the second item of information, namely the purported court order, the Circuit Court judge observed at [30] that: "The Tribunal did not accept the purported court order as evidence of that which it purports to be. The purported court order, like the applicant's evidence of the 1996 and 2010 attacks, was evidence that, had the Tribunal accepted it, would have been a reason for the Tribunal not affirming the delegate's decision. That is so because, on its face, the purported court order stated that there were pending outstanding cases in which the applicant was named an accused. That is what the applicant had urged the Tribunal to accept in support of his application for protection" (emphasis in original). 14 There is no error in this. The reasons which I have given in rejecting the submission in relation to the first item of information apply equally to the court order. 15 His Honour went on at [38] to find that even if the purported court order was "information" within the meaning of s 424A(1), it was information that fell within the exception contained in s 424A(3)(b). Mr Riley, who appears for the Minister, submits that not only is this finding correct but it applies equally to the first item of information. That submission was not put to the Circuit Court judge and no notice of contention has been filed. It seems to me that in the light of the conclusion I have reached about the two alleged items of information, it is unnecessary to deal with a submission that was not raised below and I therefore do not give leave to the Minister to address it. 16 It is sufficient to say that I reject the submission made on behalf of the appellant that his Honour was in error in his finding that the purported court order fell within the exception contained in s 424A(3)(b). His Honour relied upon the decision of Besanko J in SXSB v Minister for Immigration and Citizenship (2007) FCA 319 at [24]. In my opinion, nothing turns on the amendment to s 424A(3)(b) that was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth) at item 24 of Schedule 1 of that Act. 17 The approach taken by his Honour is SXSB is consistent with that of a Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 at [39] and [42]. I do not consider that this conclusion is affected by the observations of the Court in SZEPZ at [40] about the proper construction of s 424A(1)(a). It is true that the proper construction of s 424A(3)(b) is informed in part by the language of s 424A(1) but it seems to me that the language of s 424A(3)(b) is clear. 18 The requirements of s 424A(1) do not apply to information that the appellant gave for the purposes of the application for review. Here the appellant gave the purported order for that purpose to the first tribunal. The decision of the first tribunal was a nullity and the matter was then dealt with by the reconstituted second tribunal. The order was therefore, in my opinion, given for the purpose of the application for review. I do not think that this conclusion is affected by my decision in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [37]-[39] or by the observations of a Full Court in Minister for Immigration and Citizenship v BRAR (2012) 201 FCR 240 at [74]. 19 Nor is it affected by the decision of a Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. The provisions of the subsection as then in force were quite different from the language which is now contained in s 424A(3)(b). Also, that case concerned the question of whether information given at an airport interview fell within the exception. Al Shamry is therefore distinguishable from the present matter and does not control the proper approach to the status of the purported court order. It follows, in my opinion, that the appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.