NBAM v Minister for Immigration
[2005] FMCA 1734
•9 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBAM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1734 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the RRT breached s.424A of the Migration Act 1958 (Cth) in relation to information contained in the applicant’s protection visa application considered – no such breach as that information was not the reason or part of the reason for the RRT decision. |
| Migration Act 1958 (Cth), s.424A |
SZBCS v Minister for Immigration [2005] FCA 1457
SZBNK v Minister for Immigration [2005] FCA 998
SZECF v Minister for Immigration [2005] FCA 1200
| Applicant: | NBAM |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG580 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 23 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG580 of 2004
| NBAM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 15 January 2004. The RRT affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa. The applicant is from India and had made claims of religious persecution based upon an extra marital relationship he claims to have had with a Christian woman.
The applicant applied for the visa on 30 April 2003[1]: The delegate’s decision was made on 9 May 2003[2]. The applicant applied to the RRT for review of the delegate’s decision on 2 June 2003[3]. The RRT held a hearing on 21 November 2003.
[1] court book, pages 1-27
[2] court book, pages 30-38
[3] court book, pages 39-42
The applicant claimed to fear persecution in India, presumably for reason of his religion. He claimed to be a Muslim and to have a Christian girlfriend who he had met in Dubai in 1996 and who had moved back to India with the Applicant in 2002. He claimed to fear harm from the fundamentalist NDF, who had threatened him, and his former wife’s family, though he agreed that neither he nor his girlfriend has actually been harmed[4].
[4] See generally court book, pages 55-59
The RRT found that the applicant was not credible and had fabricated his claims[5]. The RRT noted a number of inconsistencies and implausibilities in the applicant’s evidence[6], the vague nature of both his written claims and his oral evidence[7]and his demeanour when giving evidence[8].
[5] court book, page 60.2
[6] court book, pages 60.9-62.2
[7] court book, pages 60.9-62.2
[8] court book, page 62.4
The RRT decision
As I have already noted above, the applicant failed before the RRT because he was not believed. In her decision[9], the presiding member summarises the applicant’s claims and details the discussion about them that occurred at the hearing conducted by the RRT on 21 November 2003. The presiding member rejected completely the applicant’s claim to have had a relationship with a Christian woman which was the basis for his claim of religious persecution in India. The presiding member said[10]:
I do not accept the applicant’s claims relating to being in a relationship with a Christian woman, nor of being of interest to his wife’s brothers or of any fundamentalist party. I am of the opinion that his claims were fabricated and that he was not credible. The applicant’s claims as set out in his protection visa application are extremely vague and lacking in detail. His version of events was inconsistent and lacked any credible support where support might have been expected.
[9] commencing at court book, page 52
[10] court book, page 60
Later[11] the presiding member detailed what she described as “some of the inconsistencies and contradictions” that led her to conclude that the applicant was not truthful or credible. This was not asserted to be an exhaustive list but I assume that these were the more significant matters which the presiding member chose to rely upon. Those matters were:
a)the applicant had made inconsistent claims at the hearing and in his protection visa application as to whether he was married or divorced. The presiding member rejected the claim made at the hearing that he was divorced;
b)the applicant had made inconsistent claims in his protection visa application and at the hearing about his employment in the Middle East from the period between April 1995 until March 2003. The presiding member rejected a claim made at the hearing that the applicant had been unemployed from July 2002;
c)the applicant had made inconsistent claims in his protection visa application and at the hearing about whether his mother and father had been threatened. The presiding member rejected the claim in the protection visa application that such threats had been made (which the applicant had resiled from at the hearing);
d)the presiding member rejected a claim made for the first time at the hearing that the applicant’s girlfriend had lost her job;
e)at the hearing the applicant had claimed to have been threatened by the NDF but did not know what the letters stood for. This led the presiding member to believe that the applicant’s reference to the NDF was false and opportunistic;
f)the presiding member rejected as a recent invention the applicant’s claim made for the first time at the hearing, that he had received threatening letters at his girlfriend’s address;
g)the presiding member also rejected as a recent invention the applicant’s claim, made for the first time at the hearing, that his girlfriend had received threatening letters.
[11] court book, pages 60-62
The judicial review application
I permitted Mr Turner, for the applicant, to file in court a further amended application on 23 November 2005, on which the applicant relies. That application raises the following grounds:
a)the RRT failed to take account of relevant material, namely the applicant’s “lack of delay” in lodging his application for a protection visa;
b)the RRT denied the applicant procedural fairness by failing to put to the applicant either before, at or after the hearing the fundamental credibility concern held by the presiding member concerning the applicant’s claim to have had a relationship with a Christian woman;
c)the RRT failed to carry out its statutory function by not complying with an obligation arising under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) to disclose adverse material to the applicant, that being adverse material derived from the applicant’s protection visa application.
Submissions
I received both oral and written submissions from both parties. In support of the first ground, Mr Turner relies upon the decision of Selvadurai v Minister for Immigration & Anor (1994) 34 ALD 347. In support of the second ground Mr Turner relies upon the Federal Court decision in WAGO of 2002 v Minister for Immigration (2002) 194 ALR 676, in particular at [54].
In support of the third ground Mr Turner relies upon the decision of Jacobson J in NAZY v Minister for Immigration [2005] FCA 744. Mr Turner also adopted a proposition from me that his submission appeared to find some support from a recent decision of Allsop J which I subsequently identified as SZECF v Minister for Immigration [2005] FCA 1200.
Mr Reilly submits that the alleged promptness of the applicant’s application is not a “relevant consideration” which the RRT is obliged to take into account under the Migration Act. Mr Reilly submits that such information is permitted to be taken into account but is not required to be taken into account.
In relation to the second ground Mr Reilly submits that in the absence of a transcript the Court cannot find that the presiding member’s credibility concerns were not raised at the hearing. The Minister also relies upon s.422B of the Migration Act. In any event, Mr Reilly submits that, even under the general law, procedural fairness does not oblige the RRT to put its thought processes or preliminary conclusions to an applicant.
In relation to the claim based upon s.424A of the Migration Act, Mr Reilly makes the following submission:
It may be noted that the Tribunal’s identification of inconsistencies between the Applicant’s written claims in his protection visa application and his oral evidence does not engage s 424A as the Tribunal has not accepted or adopted the written claims, but merely relied upon the fact of inconsistency which is not “information” within s 424A(1): SZEKY v MIMIA [2005] FCA 1138 (Lindgren J) at [20-24], followed in SZERV v MIMIA [2005] FCA 1221 (Dowsett J) at [11] and also in SZBVE v MIMIA [2005] FCA 1325 (Madgwick J) at [8-10].
Reasoning
I reject the first ground of review. The RRT was aware of the timing of the applicant’s protection visa application and referred to it in the first paragraph of its decision[12]. The applicant waited about one and a half months before making his application for a protection visa. It is debatable whether he could be said to have acted promptly after that lapse of time. In any event, I accept the Minister’s submission that the promptness (or lack of promptness) of a protection visa application is a matter which the RRT is permitted, but not required, to take into account.
[12] court book, page 53
I reject the second ground of review on the basis that the factual foundation for it is lacking. The RRT’s decision and reasons establishes that the applicant’s claim to have had a relationship with a Christian woman was discussed with him in some detail at the hearing. The presiding member does not say whether she expressly put her credibility concerns to the applicant at the hearing but it is not open to me to infer from silence on the face of the record of the decision that those credibility concerns were not raised. The applicant had an opportunity to put a transcript of the RRT hearing into evidence and did not do so. In the absence of a transcript I cannot say whether or not the presiding member’s credibility concerns were raised at the hearing. There was no obligation under s.424A of the Migration Act to give written notice of the presiding member’s credibility concerns as those concerns were not “information” for the purposes of that section.
As to the claim that the RRT failed to meet an obligation to disclose adverse information derived from the protection visa application (based upon s.424A of the Migration Act) I note that there is not entirely consistent authority available from binding single judge decisions of the Federal Court on the operation of s.424A in relation to information from protection visa applications relied upon by the RRT. However, the available authority establishes that an obligation will only arise in relation to determinative information contained in a protection visa application where:
a)the RRT makes adverse use of particular information in the protection visa application rather than an absence of information[13];
b)the information is not adopted by the applicant for the purposes of the review application before the RRT[14];
c)in the case of inconsistency between information in a protection visa application and information subsequently advanced (either orally or in writing) to support a review application the determinative factor is not merely the inconsistency but the information contained in the protection visa application[15].
[13] SZBCS v Minister for Immigration [2005] FCA 1457
[14] SZBNK v Minister for Immigration [2005] FCA 998
[15] SZECF v Minister for Immigration [2005] FCA 1200
In my opinion, none of the information relied upon by the presiding member to form her adverse credibility view about the applicant’s claim was such information. I note the following:
a)the information in the protection visa application that the applicant was married was not determinative. What was determinative was his claim at the hearing that he was divorced. It was that claim that was rejected. The earlier claim was neither accepted nor rejected[16];
b)the information in the protection visa application about the applicant’s employment was not determinative. What was determinative was the claim made and rejected at the hearing that he was, for some of the relevant period, unemployed. Again, the earlier claim was neither accepted nor rejected[17];
c)the information in the protection visa application about the NDF was not determinative. What was determinative was the inability of the applicant at the hearing to establish any knowledge on his part of what the NDF was. What was also determinative was the applicant’s attempt, at the hearing, to explain away his protection visa claim that the NDF had threatened his parents as a “mistake”. The protection visa claim was rejected, but the presiding member could hardly do otherwise as the applicant had abandoned it. The determinative factor was not the abandoned claim but the reason given at the hearing for the abandonment;
d)the information about the applicant’s alleged girlfriend losing her job was raised for the first time at the hearing. The determinative factor was that this claim had not been mentioned previously. However, the presiding member did not fix upon the silence of the protection visa application in particular on this point. The thrust of her reasoning was that the claim could (and should) have been mentioned at some stage prior to the hearing and had not been;
e)the same reasoning applied for the remaining information relied upon by the presiding member in forming her adverse credibility view.
[16] although the presiding member refers in her decision to the applicant’s “wife”
[17] although the RRT did accept that the applicant worked in Dubai “for some time”
I conclude that there was nothing in the applicant’s protection visa application which was determinative in the formation of the presiding member’s adverse credibility view, leading to her rejection of the applicant’s claim. The information relied upon by the presiding member was information advanced by the applicant for the purposes of his review application (or an absence of such information) and hence no obligation arose under s.424A of the Migration Act to give notice of that information.
I will dismiss the application.
Costs should follow the event in this case. This was a matter of at least average complexity and a costs order fixed in the sum of $5,000 is called for. I will so order.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 December 2005
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