NBAM v Minister for Immigration - [2008] FMCA 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBAM v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 20

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “NBAM”.

Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425
Migration Legislation Amendment (Procedural Fairness) Act 2002 No. 60

Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SZHCW v Minister for Immigration & Citizenship [2007] FCA 688
SZIQL v Minister for Immigration & Citizenship [2007] HCA 942

Applicant:

NBAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3712 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

15 August 2007

Date of last submission:

17 September 2007

Delivered at:

Sydney

Delivered on:

15 January 2008

REPRESENTATION

Solicitor for the Applicant:

Mr R Turner of Parish Patience Immigration

Counsel for the Respondents:

Mr James Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 13 December 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3712 of 2006

NBAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant was born in 1962 in Calicut, India. He states that he underwent 10 years of education between 1967 and 1977. The applicant is married with two children who live in India. However, from evidence given at the Tribunal hearing, the applicant divorced his wife two months before coming to Australia but claims he lost the divorce documents. The applicant claims to have lived in the state of Kerala until December 1993. He then claims to have worked in Saudi Arabia and then in Dubai from 1995 to 2003.
In Dubai, the applicant claims to have formed a relationship with
a Christian woman named Sonya. However, the Muslim community does not usually condone relationships such as these. The applicant alleges that his wife’s brothers tried to forcefully break up the relationship. However, the applicant claims this was not possible for the couple.
The applicant claims that if he were to return to India, his life would be endangered by Muslim fundamentalists. Further, that if he were to return to the United Arab Emirates, he would also face danger from his influential brothers-in-law. The evidence given at the Tribunal hearing shows that the neither the applicant nor Sonya had suffered any harm.
The applicant arrived in Australia on 18 March 2003 and applied for a Protection (Class XA) visa on 30 April 2003. A delegate of the first respondent refused to grant the visa on 9 May 2003 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision, which it affirmed. On 9 December 2005, the Federal Magistrates Court dismissed the applicant’s judicial review application and the applicant appealed that decision in the Federal Court. On 9 May 2006, the Federal Court made orders by consent that the Tribunal to reconsider the application for review. The second Tribunal then affirmed the decision not to grant the protection visa (reference 060627565), which is the subject of the application before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The amended application filed in this Court on 15 August 2007 contains one ground of review:
1. The Tribunal denied the Applicant procedural fairness.
Particulars
(a) The Tribunal made findings based on particular issues and failed to give the applicant an opportunity to give evidence and present arguments relating to these issues.

Consideration

At the commencement of the hearing, Mr Turner for the applicant sought to file an amended application which abandoned the previous grounds and substituted them with one ground of review. Mr Turner also filed an affidavit which set out circumstances affecting his preparation of this case. Mr Turner sought an adjournment to allow him further time to prepare. I indicated that as this application now focused on a single issue, I would proceed with the hearing but allow both parties to file supplementary submissions addressing the new ground of review.
The amended application alleges a breach of procedural fairness while the supporting written submissions allege a breach of s.425 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal decision the subject of this application was signed on 27 October 2006 and sent to the applicant by letter dated 21 November 2006. Significantly, the Tribunal’s procedural fairness obligations are contained in Division 4 of Part 7 of the Act. The common law natural justice hearing rule is excluded by s.422B which was introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 No. 60 which was assented to on 3 July 2002 and became operative on 4 July 2002: see Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62. If a breach of the common law natural justice hearing rule is alleged by the applicant, that rule does not apply to an application for review of a Tribunal decision made in October 2006.
Alternatively, the applicant’s written submissions allege a breach of s.425 of the Act, in that the Tribunal was required to invite him “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.The applicant alleges that the Tribunal based its decision on specific issues which were not put to him for comment. Mr Turner submits that this failure denied the applicant procedural fairness: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; SZIQL v Minister for Immigration & Citizenship [2007] FCA 942.
Mr Turner identifies the following passages in the Tribunal’s “Findings and Reasons” which relate to matters not put to the applicant in the s.424A letter. I will number these paragraphs for ease of reference later in this judgment:
(i) Even if the Tribunal were to conclude that the applicant had offended his in-laws, other relatives and the wider Muslim community in his home district by commencing an extramarital relationship with a Christian woman, there insufficient evidence before the Tribunal to satisfy it that he faces serious harm in India for a Convention reason and that, if he does, he would not receive appropriate protection from Indian authorities. His oral evidence to the Tribunal was that, neither he nor Sonya had come to any harm in India at the hands of those who he claims wish to harm him. Even though he has spent little time in India since the alleged events in question, his evidence is that Sonya is an orphan with little protection. Those who he claims are angry with him and Sonya have had ample opportunity to extract revenge upon her, but have apparently done nothing to harm her.
(ii) The applicant told the Tribunal that neither he nor Sonya had ever sought the assistance of local police in connection with the threats allegedly made against them. The Tribunal does not accept his claim that he did not do so because a Muslim party has power in Kerala. While the Tribunal accepts that the Muslim League is one of the minor parties in Kerala’s ruling coalition, the Tribunal is of the opinion that a person who genuinely feared serious harm would at least have attempted to secure police protection.
(iii) The only evidence the applicant has submitted to corroborate his claim that he was divorced is an undated statement, which he submitted to the Tribunal on 7 August 2006 in support of his claims, and the authorship of which is unclear. While it supports some of the applicant’s claims, it also contradicts some of his evidence. For example, it states the applicant and his wife separated in July 2003. His oral evidence to the Tribunal was that he had not seen his wife since August 2002 and that they have had divorced two months before he came to Australia, which would therefore have been around January 2003. The statement he submitted also asserts that he and Sonia stayed in a house which he had built on his father’s land, whereas his oral evidence was that they stayed in a house which he had rented. Given his oral evidence that his parents opposed the relationship, the Tribunal would not expect that, if the property was his father’s, his father would have rented it to him, thereby assisting the alleged relationship.
(iv) The statement also refers to Sonya by an approximation of the family name given in the passport copies of some pages of which the applicant submitted on 7 August 2006. However, as noted above, the applicant said at the hearing that Sonya’s surname was “Vatoli” which is nothing like the name given in the statement. Given the lack of clarity as to the document’s author, the lack of any information about how the author was aware of the applicant’s circumstances, and the contradictions with the applicant’s own evidence, the Tribunal gives no weight to the undated statement as corroboration of the applicant’s claims. On the basis of all the evidence before it, the Tribunal prefers the evidence of his application forms that the applicant was not divorced, at least up until the time of the hearing.
(v) Second, the Tribunal does not accept that the applicant had a relationship with a woman named “Sonya”. The applicant has submitted copies of some pages of what purports to be the passport of “Sonya” but, given the discrepancy between the passport-holder’s surname and that given by the applicant at the hearing, the Tribunal does not accept that the passport relates to the person referred to in the applicant’s claims.
(vi) In support of his claims of a relationship with Sonya, the applicant has submitted what purport to be two letters from her. However, there is a major inconsistency between one of the letters and the applicant’s claims. The letter dated 19 August 2003 purports to be a letter written by Sonya to the applicant, but it refers to her seeing “Leila’s husband”. The only person mentioned by the applicant with a name like that is his wife, whom he named at the hearing as “Jasmin Laila”. “Leila’s husband” is therefore the applicant himself, so the letter is apparently telling the applicant in Australia, that she sees him (in India) from time to time. The Tribunal gives no weight to these two letters. (CB 113-114)
Mr. Turner argues that the issues raised above do not amount to and objective appraisal of the issues but are central to credibility and relate specifically to:
(a) contradictions between a written statement and oral evidence – paragraphs (i), (ii) and (iii);
(b) discrepancies in names – paragraphs (iv) and (v);
(c) discrepancies in letters - paragraph (vi).
Mr Turner maintains that each of these matters was central to the Tribunal’s consideration of the applicant’s credibility and should have been put to him for comment, in addition to the s.424A letter.
Mr Turner argues that the applicant’s claim that he was denied procedural fairness is not foreclosed by the operation of s.422B of the Act as that aspect of procedural fairness is derived from s.425.

Mr Turner further argues that it is not a question of whether an applicant is taken by surprise by the way material is treated at a Tribunal hearing. What is important in the Tribunal’s obligation under s.425 is to provide the applicant with a real opportunity to give evidence before it and present arguments in relation to the issues under review. Mr Turner argues that the Tribunal’s failure to hold a further hearing and put these issues to the applicant was a breach of its obligations under s.425.
Mr. Mitchell, for the respondents, contends that the Tribunal decision shows that issues which were determinative of the applicant’s claims were raised at the Tribunal hearing (differently constituted) on

21 November 2003 and in the s.424A letter sent on 7 August 2006: SZBEL at [33]-[43].
The applicant gave oral evidence at the hearing of 21 November 2003 (CB 56-59). This was reproduced in the Tribunal decision which is currently under review (CB 108-109). In that extract the Tribunal discussed the applicant’s claim that he had a relationship with “Sonya”. In the s.424A letter issued on 7 August 2006, the Tribunal put the following question to the applicant:
If the Tribunal were to reject any or all of the claims referred to above it could reject, in particular, your unsubstantiated assertion that you had a relationship with a Christian woman called Sonya, of a kind to cause offence to your wife’s family or to other Muslims. You are invited to comment on this information. (CB 91)
On the same day that the s.424A letter was issued, the applicant independently submitted further documents to the Tribunal by hand but without a covering letter. These documents were drawn to the attention of the presiding member on 8 August 2006. They were uncertified copies of three documents in Indian script with a translation and copies of six pages of an Indian passport which had been issued to a woman whose given name was “Sonya”. The Tribunal noted that the woman’s surname was different to the surname the applicant said was Sonya’s at the hearing. Further, there was no indication that the bearer of the passport was ever in Dubai.
Mr. Mitchell submits that the Tribunal was not obliged to put to the applicant its appraisal of the material submitted by him on 7 August 2006 in the circumstances where:
(i) The applicant attended a hearing before the Tribunal and gave evidence before it. He could not have been taken by surprise by his own testimony.
(ii) The Tribunal invited the applicant to respond to certain inconsistencies and discrepancies in the information before the Tribunal and outlined the relevance of that information to the plausibility of this claim to have had a relationship with “Sonya”. If he had not been aware previously of that the truth of this claim was an issue, the s.424A letter clearly highlighted that this was an issue.
(iii) The applicant did not respond to the “invitation to comment” (s.424A) letter.
(iv) The applicant could not be surprised by the contents of the material that he submitted on 7 August 2006.
(v) The Tribunal appraised the material submitted by the applicant in light of his testimony and found obvious inconsistencies and discrepancies between the material.
Mr. Mitchell submits that the above were natural and obvious appraisals of the applicant’s own material and therefore the procedural fairness and s.425 obligations did not apply. The Tribunal was not obliged to put them to the applicant for comment, see SZBEL at [48] where their Honours stated:
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry[24]:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
This principle was also applied in SZHCW v Minister for Immigration & Citizenship [2007] FCA 688 at [26].
Mr Mitchell in his supplementary submissions contends that if the Tribunal was required to put its subjective appraisals on material submitted by the applicant, this would require a running commentary. This is clearly beyond the accepted obligation under procedural fairness or s.425: SZBEL at [48]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31]. To impose such a requirement would lead to the same circulus inextricabilis that Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ applied in respect to s.424A(1) in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [19]-[20].
I agree with Mr Mitchell’s supplementary submissions that the applicant submitted material to the Tribunal on 7 August 2006 that was inconsistent with the claims he made at the first Tribunal hearing on 21 November 2003. It is acknowledged that the submitted material was lodged at about the same time the second Tribunal issued the s.424A letter. However, the applicant did not respond to that letter at the time of the decision. In the circumstances, it could not have taken the applicant by surprise that the material he lodged was inconsistent with the oral evidence that he gave at the first Tribunal hearing. Further, the applicant did not take any steps to address the inconsistencies. I agree with the submission that the Tribunal was not obliged to put its appraisals of the applicant’s own evidence to him for comment.

Conclusion

I am satisfied that the ground of review contained in the amended application cannot be sustained and consequently the application should be dismissed. I am satisfied that an order for costs should be made in this matter.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 15 January 2008