WZAMS v Minister for Immigration and Citizenship

WZAMS v Minister for Immigration and Citizenship - [2008] FCA 1352 - FCA 2008 case summary — Zoe

[4]

ON REVIEW BY THE FEDERAL MAGISTRATES COURT 12 By an amended application and affidavit in support filed with the Federal Magistrates Court on 6 March 2008, the appellant claimed that the Tribunal did not accept all his factual claims; made a number of mistakes and should have invited the appellant to make comments on the information which was adverse to him and which appeared in the Tribunal decision; was unfair and biased towards him; did not understand his claims, did not explain to him why his application lacked information and only accepted his claim that he was a citizen of India. 13 Before the learned Federal Magistrate, the appellant made oral submissions also stating that he had been hampered in putting his case to the Tribunal because he had had difficulty in obtaining legal advice and in being able to speak to someone who could speak Malayalam. However, his Honour noted in his reasons that the appellant 'conceded, when asked, that the Tribunal had provided an interpreter in the Malayalam language'. 14 In relation to the appellant's first complaint that the Tribunal did not accept all his claims, the learned Federal Magistrate noted that the Court was unable to provide the appellant with a merits review of the Tribunal decision. 15 His Honour observed that the second limb of the appellant's claims appeared to be that the Tribunal breached the requirements of procedural fairness and that s 422B of the Act applied. His Honour observed (at [36] WZAMS [2008] FMCA 438) that the delegate's decision had set out very clear reason's for rejecting the appellant's application and that the Tribunal was similarly not satisfied on the basis of information provided by the appellant, even after further information had been provided. His Honour therefore concluded that there was no breach of procedural fairness. 16 The third limb appeared to his Honour be an allegation of failure by the Tribunal to comply with the requirements of s 424A of the Act. Noting that the Tribunal was not required to put to the appellant any doubts which it might have regarding an applicant's evidence (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]), his Honour nevertheless noted that the Tribunal had forwarded a s 424A letter to the appellant pointing out the perceived lack of detailed information he provided and requesting further information. It had discharged its obligations under the section. 17 To the extent that the appellant alleged bias on the part of the Tribunal, his Honour was unable to discern any evidence in support of such an allegation. 18 The learned Federal Magistrate concluded that there was no evidence to support the allegation that the Tribunal did not understand the appellant's claims. The Tribunal was also under no obligation to explain why the information the appellant provided was insufficient or to make out the appellant's case for him: see Prasad v Minister for Immigration and Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. As to the complaint that the Tribunal did not explain why it did not accept his claims, his Honour found that the Tribunal's decision provided clear reasons and complies with the requirements of s 430(1) of the Act. 19 His Honour was unable to discern any jurisdictional error in the Tribunal's decision and dismissed the application for review.

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GROUNDS OF APPEAL 20 The notice of appeal raises the following grounds: '1. Jurisdictional error 2. Breached (sic) of proceeding 3. Denial of natural Justice' 21 At the hearing of the appeal before me the appellant stressed that he had received threats of violence including threats of murder from prisoners of the Tamil Nadu jail. Further he submitted that he is a member of 'BJP Worker' and was threatened with murder by CPM workers. He complained that the Tribunal did not pay proper attention to those threats. He complained that the threats were not treated seriously by the Tribunal and he wished to have the opportunity to go back to the Tribunal to emphasise these particular threats and to attempt to produce additional evidence which would support those threats having occurred. 22 Counsel for the Minister, Mr Hannan pointed out that the threats of that nature had never been raised before. In particular, counsel referred to [19] of the Federal Magistrate's decision when the summary of the evidence of the Tribunal was listed under four headings, namely, (a) political activities in Trevandrum District, Kerala State; (b) prisoner capture; (c) relocation; and (d) credibility. The learned Federal Magistrate cited the Tribunal decision in which the Tribunal had said: He did not provide apparently meaningful responses to questions put (some questions were repeatedly put and the interpreter appeared to have stressed such questions on occasion, prior to a meaningful response being provided). He provided inconsistent evidence and his evidence (at times) appeared to have been embellished, (if not entirely fabricated). 23 Counsel also referred to the initial statutory declaration sworn by the appellant in July 2007 in support of his application which had not raised the issue of threats of murder made by prisoners. 24 In my view, while the point was expressed slightly differently in this appeal, there was some consistency with the statutory declaration when the appellant said: Meanwhile in a morning daily I came across a news that in "Tamilnadu" state which is our neighbouring state some persons attacked the prison authorities and escaped in the prison and killed a prisoner by breaking and opening the cell door and chopped off the head of a prisoner and took his head along with them and abandoned the head some few kilometres away, these assailants were financially well and sound and they have high political influence. They did this with the help of officials and in conspiracy with the prison superintendent who was heavily bribed by the assailants. After that they escaped to Kerala and came to a place near to my close relative house and the Tamilnadu police published their photos in newspapers and reward offered to those who identify of capture or gives information about them. It was at that time these assailants incidentally came to in front of me and I identified them from the injury on his right hand and from injury on the face of another one. I immediately informed the police and when the assailants tried to escape I along with my friends overpowered them and I handed them over to the police. At that time these assailants to offered me a handsome amount if I am not informing and handing them over to the police. I went to the police station and police officer of Tamilnadu police headed by an Inspector General of that zone came to take these assailants. As earlier said assailants had lexus with that Inspector General and on that time itself these assailants openly declared and threatened me that when they are released from prison they will came and kill me and my entire family. And these became the headlines of all the dailies, on the next day. And the news was mostly about me. It was reveled (sic) that these assailants were planning to escape to "Sri Lanka" and for that they had silent consent of the politicians and police officers. And they want to eliminate me and my family because they were captured only because of me, otherwise they could have escaped to Sri Lanka. (emphasis added) 25 However these issues raised by the appellant go to a review of merits. On reviewing the Tribunal's reasons it is clear that it has fully considered the arguments advanced by the appellant and did not accept them. 26 On the evidence and inconsistencies and on the Tribunal's ability to form a view as to the reliability and credibility of the appellant, it was entitled to reach that conclusion.

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