NBDV v Minister for Immigration
[2008] FMCA 309
•5 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBDV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 309 |
| MIGRATION – Review of Refugee Tribunal decision – procedural fairness – Tribunal rejected applicant’s evidence – inconsistencies in the applicant’s evidence were put to the applicant by the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.430, 424A, 425 |
| Abebe v Commonwealth (1999) 197 CLR 510 [1999] HCA 14 NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | NBDV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3513 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 March 2008 |
| Date of Last Submission: | 5 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 28 November 2006, amended on 4 May 2007, and further amended on 14 November 2007, is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3513 of 2006
| NBDV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me an application made in this Court on 28 November 2006, amended on 4 May 2007, and further amended on 14 November 2007. This application is made under the Migration Act 1958 (“the Act”) and seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 25 October 2006 and notified to the applicant on 2 November 2006, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
The first respondent has filed a bundle of relevant documents in this matter which have been formally put before the Court (Court Book – “CB”) from which the following background can be discerned.
Background
The applicant is a citizen of India of Sikh background who arrived in Australia on 30 November 2000. In July 2001, the applicant applied for a protection visa (application reproduced CB 1 to CB 33 with annexures). In February 2002, the delegate of the first respondent refused to grant the protection visa and in March of that year the applicant applied to the Tribunal for a review of that decision (application for review reproduced at CB 47 to CB 50).
The Tribunal proceeded to consider the application for review and a decision was handed down in March 2004. This became the subject of an application to this Court and on 12 May 2006 orders were made quashing that decision and remitting the matter to the Tribunal for reconsideration.
From the material before the Court it appears the Tribunal was reconstituted and the applicant appeared before that Tribunal at a hearing on 2 August 2006 to give evidence. The Tribunal’s account of what occurred at that hearing is set out in its decision record (at CB 138 to CB 146).
I note also that by letter dated 9 October 2006, sent by facsimile transmission to the applicant’s then representative, the Tribunal invited the applicant to comment on certain information (“the section 424A letter”). The applicant does not appear to have responded to that letter in substance. However, there is a response to the letter from the applicant’s then migration advisor, who is also a solicitor, which I note from the way he has signed the letter, seeking an extension of time until 30 October [2006] within which to respond to the Tribunal’s letter (at CB 125).
Ultimately, the Tribunal rejected the applicant’s claims. These claims to protection were said to arise from the applicant’s fear of harm from the Indian government and law enforcement authorities in India and other local authorities which he claimed were interested in him because of his involvement in various human rights work and the assistance he offered people of Sikh background.
Specially, the applicant claimed that he had been detained by police on at least two occasions in 1985 and 1986, that he had been attacked as a result of his human rights work, and that he claimed that he and his family had been threatened by the police, that he had been mistreated by the police, that his factory had been “looted,” that his office was burnt down, and that he had been forced to pay money to the police.
The applicant also claimed that by association he was of interest to the police because of involvement in the Khalistan movement, namely, involvement by some of his family and friends. The Tribunal rejected the applicant’s claims that he was a human rights activist because it found that there were a number of inconsistencies in his evidence and a general lack of credibility as a result.
In relation to the applicant’s claims as to the types of human rights activities that he undertook, and based on the applicant’s own evidence, the Tribunal characterised his work as humanitarian or charity work as opposed to human rights work. Even with that characterisation, it found his evidence to be unconvincing based on what it said were several inconsistencies. In relation to his involvement with these activities, the Tribunal did not accept that the applicant was committed to the humanitarian work as he had claimed. The Tribunal rejected the assertion that the applicant was of interest to the authorities because of his humanitarian work or for any other reason and found that he did not experience any difficulties because of this work.
In relation to the claims that his friends and family were linked to the Khalistan movement, the Tribunal found that even if this were the case, it was not satisfied that the police in the Punjab would be interested in him for this reason, or that he would be of interest to the authorities because he was a Sikh.
The Tribunal found that the applicant had provided contradictory information and, as a result, found that he had never come to the attention of the police, had never been detained, nor harmed in any other way, by the police. The Tribunal, therefore, ultimately, concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, given its finding that the applicant’s fear of harm was not well-founded.
Hearing before the Court
The applicant appeared before the Court in person. He was assisted by an interpreter in the Punjabi language. Mr J Potts of Counsel appeared for the first respondent. The material that I have from the applicant is his originating application made 28 November 2006; an amended application made on 4 May 2007; a further amended application made on 14 November 2007; and the applicant’s written submissions made on 13 November 2007.
I also have the applicant’s affidavit of 28 November 2006 putting before the Court the Tribunal’s decision record. As to the assertions made by the applicant in that affidavit, I understood them to be general assertions as to his lack of satisfaction with the Tribunal’s decision. For the Minister, I have the Minister’s response; the Minister’s written outline of submissions, filed on 4 March 2008; and oral submissions made today by Mr Potts.
I will note that the applicant asserted before the Court that he arrived in Australia on 31 November 2000. I also note, in this regard, that the applicant, himself, put in his application date of arrival in Australia “30/11/00” (CB 15).
When given the opportunity to make submissions to the Court, the applicant stated that he had problems back in India and that his life was not safe. The applicant explained that he sought to rely on the written material that he had put before the Court and that he had nothing further to add. I also confirmed with the applicant that the effect of his amended application and further amended application was that the applicant sought to put two grounds before the Court.
Ground 1
The first ground is that the Tribunal failed to consider the applicant’s refugee claims in a constructive and articulate manner because of contradictory findings it made during the assessment of the claims supported by the written and oral evidence. The applicant then refers to two parts of the Tribunal’s decision record. The first is (at CB 149.5):
“The Tribunal accepts the applicant may have been involved in humanitarian work through his temple and in association with Madho, once he started working for him in 1984, however, the Tribunal is not satisfied he was committed to this work as he claimed given the inconsistencies in his evidence as to his involvement in these activities at various times.”
The applicant then refers to what the Tribunal said (at CB 152.3):
“The Tribunal is satisfied the applicant has not worked for human rights in the past in either Bihar or the Punjab. It accepts the applicant may have assisted Sikh families through providing [aid] such as food or money through the temple and also his employer, Madho, but it does not accept the applicant actively worked for human rights over a period of 15 or more years.”
The extract quoted by the applicant omits the word “aid” from the Tribunal’s actual text such that the second sentence in that quote should read as follows:
“It accepts the applicant may have assisted Sikh families through providing aid such as food or money through the temple and his employer …”
The application continues:
“The Applicant submit that the Tribunal failed to refer to the detailed and consistent evidence the applicant gave in his written claims and oral evidence as to his work helping Sikh people which were a humanitarian task he performed. The applicant submits that the Tribunals’ finding to the effect – ‘Tribunal is not satisfied that he was committed to this work’ and ‘does not accept the applicant worked for human rights over a period of 15 years’ were its own conclusions which was irregular and unsupported. Hence the applicant submits that this irregular conclusion amounted to jurisdictional error’ committed by the Tribunal.”
[Errors in original]
Ground 2
Ground 2 is derived from the further amended application which states that it substitutes Ground 2 of the earlier application. The ground is stated as follows:
“That the Tribunal failed to comply with sec.424A(1)(a) of the Migration Act 1958 because of the following finding it made and thereby denying the Applicant with the opportunity to comply with this provision in terms of the decisions that were made in SAAP and SZEEU … ”
Namely, and with reference to the Tribunal’s decision record at CB 150, the applicant quoted the following extract:
“The Tribunal does not accept the Applicant was again arrested in 1986. The Tribunal notes the applicant claimed in the hearing that this incident took place in June or July 1986 and he was detained for 2 days. However, in his Statement, the Applicant claimed it was early 1986, February, according to the evidence he provided to the first Tribunal and was detained for 4.5 days. The applicant submits that this was a serious error made by the Tribunal.”
Consideration
In relation to the first ground, I agree with Mr Potts, that what is said to be a contradiction between what appears at the extract taken from CB 149.5 and the extract taken from CB 152.3, is not in any event, and in context, contradictory. The plain meaning of what the Tribunal was stating at CB 149, is that it accepted that the applicant may have been involved in humanitarian work, that is, work through his temple and in association with a man called, Madho, but that the Tribunal was not satisfied that he was as committed to this work as he had claimed.
The Tribunal stated that it was not satisfied that the applicant had worked for human rights in the past in either Bihar or Punjab, although it accepted as it had said in the earlier extract that he may have assisted Sikh families through the provision of food and aid, as a result of his association through his temple and his employer, Madho (at CB 152).
Plainly, the Tribunal drew a distinction between the applicant providing some aid to Sikh families, which was one set of his claims or, rather, one part of his claim, and his claim to have worked for human rights. The drawing of such a distinction was plainly open to the Tribunal on what was before it, and as Mr Potts submits, in the context of how the applicant presented his claims to the Tribunal, the applicant’s complaint fails at first instance because no contradiction as claimed can be discerned.
In any event, and further to what I just said, the Tribunal’s findings of fact in this regard were open to it on what was before it, and the Tribunal gave reasons for its findings. I note that there is no error of law, let alone jurisdictional error, even if the Tribunal could be said to have made a wrong finding of fact (see Abebe v Commonwealth (1999) 197 CLR 510 [1999] HCA 14 in that regard). What is clear, on a plain reading of the Tribunal’s decision record, is that in critical aspects, the Tribunal did not accept the applicant’s evidence, and made findings of fact and reached conclusions in that way.
As Mr Potts correctly submitted, in my view, whatever the boundaries of jurisdictional error, they do not encompass findings of fact. I note the reference to NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 and, of course, to the extent that this is a challenge to the Tribunal’s findings seeking merits review from this Court, then that is an avenue that is not available to this Court to pursue.
With reference, in particular, to the applicant’s written submissions, and to the extent that it may be inferred that the applicant is seeking to complain that the Tribunal failed to deal with an integer of the applicant’s claim, again, I can only note that what the applicant puts forward as a failure to deal with an integer is the applicant’s understandable reluctance to accept adverse findings made by the Tribunal and, to the extent that the applicant says, that the Tribunal should have taken into account certain evidence.
There is a distinction to be made between the obligation on the Tribunal to consider an applicant’s claims, and the integers of those claims, and the Tribunal’s obligations to deal with all the integers of claims and to demonstrate in its decision record that it has dealt with each aspect of the applicant’s claims. There is a distinction between that obligation and the that the Tribunal is not required in its decision record made pursuant to s.430 to refer to each and every piece of evidence that is before it.
The Tribunal’s obligation pursuant to s.430 plainly is to refer to the evidence on which the material findings of fact are based. As I have said, I agree with Mr Potts that what is set out in the amended application and the written submissions in relation to ground 1, is no more than a challenge to the Tribunal’s findings of fact and the merits of the decision. For the reasons that I have already given, such grounds are not made out.
The second ground asserts a breach of s.424A. The applicant’s documents rely on the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24, and, in that regard, I understand that to be the majority judgment in that case and the Full Federal Court decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. Unfortunately for the applicant, whoever assisted him in the drafting of his grounds and submissions appears to have overlooked the High Court’s judgment in the matter of SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”).
In SZBYR, the High Court set out what was meant by the term “information” for the purposes of s.424A of the Act. It is quite clear that the High Court (at [18]) endorsed the approach taken in such cases as VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123, and the line of authority referred to in that case by the majority of the Full Federal Court that the Tribunal’s adverse views of an applicant’s evidence and, in particular, inconsistencies between different sets of evidence or even internal inconsistencies in an applicant’s evidence, is not information for the purposes of s.424A.
The applicant complains that the Tribunal failed to comply with this section because of the finding that it made (to which I have already referred at CB 150.3). The issue raised there relates to the applicant’s claims to have been arrested by the police for the second time in 1986, and inconsistencies between that claim and a claim made in a statement in other evidence provided by the applicant.
Unfortunately for the applicant, even beyond what the High Court said in SZBYR and even if what is quoted in this extract could be said to be information, this material was put to the applicant in the Tribunal’s section 424A letter. I note, in particular, paragraph 4 of that letter (reproduced at CB 123).
In any event, even if could be said that this was information for the purposes of s.424A, the Tribunal complied with the obligation in s.424A(1). That ground also is not made out.
As the applicant appeared unrepresented before the Court (albeit that he appears to have had some assistance in the drafting of his various applications and written submissions even though those submissions were, as I have already indicated, lacking in some respects) I did consider whether the applicant was provided with a proper opportunity pursuant to s.425 in the presentation of his evidence before the Tribunal and, generally, whether the Tribunal would have put the applicant on notice at the hearing as to the issue that was ultimately, determinative of his application. I have in mind here generally what the High Court said in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
I note again that the only record of what occurred at the hearing that has been put before the Court is the Tribunal’s own record. It is clear that the issue that was determinative of the review was the view that the Tribunal took of the applicant’s evidence based on what is said to be a number of inconsistencies in his claims.
The Tribunal squarely put to the applicant that there were a number of inconsistencies between what he told the department at the first Tribunal and what he said today, which it needed to discuss with him (at CB 143). The Tribunal then proceeded to discuss each of those instances of inconsistencies with the applicant. I note reference to the inconsistencies as to when the applicant first had problems with the authorities in Bihar (at CB 143.8), the inconsistencies in relation to his claims to have been arrested in 1985 (at CB 144.4), and the incident in 1996, which was the claim to have been arrested and detained for two days (at CB 144.6).
The Tribunal put to the applicant he had provided inconsistent information regarding his arrest in the Punjab (CB 144.7). It put to the application various claims in relation to what happened to his family, and that this had not been raised at an earlier time (CB 145.1). It also put to the applicant (at CB 145.4) that certain country information which, read plainly, reveals that the applicant did have raised with him, and certainly would have had indicated to him (I refer to paragraph 47 of what the High Court said in SZBEL in this respect), what I would describe as the sub stratum of matters, being the inconsistencies and deficiencies in his claims that ultimately led it to take the adverse view that it did as to the credibility of the applicant’s claims.
As the Tribunal said (at CB 149), it did not accept that the applicant was a human rights activist in India. It had serious doubts that the applicant was involved in working for human rights as claimed, given the number of inconsistencies in his evidence and a general lack of credibility as a result. These inconsistencies were brought to the applicant’s attention at the hearing and the applicant was given the opportunity to comment.
Mr Potts brought to the Court’s attention to a reference to the Tribunal’s section 424A letter, (CB 123 and CB 124), in which the Tribunal directed the applicant to provide his comments by 23 October 2006. I note in that the letter dated 9 October 2006 was said to have been sent by facsimile to the applicant’s authorised recipient for correspondence.
The applicant’s representative, who appears to be a solicitor, responded on 20 October 2006 by facsimile communication reproduced at page 125, seeking an extension until 30 October “2004,” which in context should be understood as 2006. The Tribunal turned its mind to this request for an extension and noted in its decision record that it had contacted the applicant’s advisor on the first working day after receipt of the advisor’s request and says that it notified the advisor that extension would not be granted unless a medical certificate in support was provided (at CB 147.8).
The Tribunal noted that neither a medical certificate nor a further response to its section 424A letter, was received from the applicant or the advisor. Mr Potts drew the Court’s attention to the handing down of the Tribunal’s decision on 2 November 2006. Plainly, this was a date beyond 23 October 2006 and, in any event, the extension sought by the applicant through his advisor had, through the passage of time, been provided to the applicant, and that it was open to the applicant who had provided any such response up until that time and that, plainly, the Tribunal would have then been obliged to have dealt with whatever may have been put to it. On this basis, I agree with Mr Potts that the Tribunal was entitled to act in the way that it did and, in essence, the applicant got the extension that he had sought.
I note further (lest it be said that the Tribunal may have acted in some pre-emptive way) that the Tribunal’s decision was not signed until 25 October 2006, at a time later than the date to which the extension was sought, namely, 23 October 2006. In all, no error is revealed in the way in which the Tribunal dealt with that aspect of what had been put before it.
Conclusion
I cannot, therefore, discern jurisdictional error in either of the two grounds that the applicant has put before the Court. Nor can I otherwise discern jurisdictional error in what the Tribunal has done. I will, therefore, make an order dismissing the application.
It is appropriate that an order for costs be made in this matter. The applicant has, despite opportunity, has not put before the Court any reason or argument for such an order not to be made, nor can I otherwise see any reason such that the order should not be made. As to the amount, the amount sought is $5,000. I note that this amount is consistent with what is set out in the relevant schedule to the Rules of this Court for matters of this type.
I take the view that I am not strictly bound by what is set out in that schedule, but it is a useful guide and, with reference to the work that has been done by the Minister’s legal representatives, the amount sought is a reasonable in all the circumstances.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 12 March 2008