SBLD v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1813

FEDERAL COURT OF AUSTRALIA

SBLD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1813

SBLD v MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

No SAD 216 of 2006

FINN J
22 DECEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 216 OF 2006

BETWEEN:

SBLD
Appellant

AND:

MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	22 DECEMBER 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The title of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 216 OF 2006

BETWEEN:

SBLD
Applicant

AND:

MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE:	22 DECEMBER 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. There are three grounds of appeal in this matter. 

   GROUND 1

2. The first correctly ascribes an error to the Federal Magistrate’s decision in that his Honour mistakenly assumed that the Migration Litigation Reform Act 2005 (Cth) had not come into effect when the application for judicial review was filed. In consequence he considered the source of his jurisdiction to be s 483A of the Migration Act 1958 (Cth) and not s 476 of that Act. While the respondent Minister concedes this error, it is contended, correctly, that it did not in any substantive way effect the Federal Magistrate’s jurisdiction to deal with the application or the questions to be decided by him.

3. I need say no more about this ground.  The remaining two grounds of appeal in differing ways are said to raise questions on procedural fairness.  The same two matters were agitated before the Magistrate who was prepared to proceed on the assumption that the relevant rules of procedural fairness were those at common law.  He expressly acknowledged taking this course notwithstanding the terms of s 422B(1) of the Act.

   BACKGROUND TO GROUNDS 2 AND 3

4. The appellant is an Albanian citizen who has unsuccessfully applied for a protection visa.  Put shortly, the basis of his application insofar as presently relevant is that he was a Catholic living in a predominantly Muslim town;  he commenced a relationship with a girl from a strict Muslim family;  he has been threatened by her brother;  rejected by her family;  and because he has continued to see her, he has been subjected to threats such that he fears for his life.  This led him ultimately to seek refuge in this country. 

5. Four days prior to the hearing of his application to the Tribunal the appellant served on the Tribunal a statutory declaration in which he outlined in some detail his relationship with the girl concerned and the events which occurred in consequence of that relationship.  When he gave his evidence to the Tribunal, his oral evidence was clearly inconsistent with the content of the statutory declaration in several significant respects.  The Tribunal outlined this in its reasons indicating that it put the inconsistencies to him.  Such was the significance attributed to what the Tribunal called “these numerous inconsistencies”, that it found he was unable to provide a consistent and coherent account of threats, harassments and difficulties he claims to have suffered at the hand of his girlfriend’s family.  Those inconsistencies, the Tribunal considered, did not relate to peripheral details but to key aspects of his claims such as when he was first threatened by her brother, how often he approached her family etc.  The applicant sought to counter the significance of the inconsistencies by both claiming at the hearing and reiterating in the post-hearing submission of his agent that the statutory declaration was prepared without the assistance of an interpreter and that this may have led to misunderstandings.  The Tribunal dealt with this matter in the following way:

   “The Tribunal notes that the applicant’s statutory declaration was prepared with the assistance of his adviser.  Given that the statutory declaration and submission represented the first occasion on which the applicant provided detail of his main claims, the Tribunal is satisfied that the importance of providing an accurate account would have been apparent to the adviser.  The statutory declaration sets out the applicant’s claims at some length and in some detail.  The fact that the adviser’s submission specifically referred to an encounter with Mimoza’s brother prior to the applicant’s visit to her parents suggests that the adviser was confident of the accuracy of the information provided by the statutory declaration in this regard.  In these circumstances, the Tribunal does not accept that the absence of an interpreter provides an explanation for the numerous inconsistencies in relation to key aspects of the applicant’s claims.”

   GROUND 2

6. The second ground of appeal relates to the use so made of the statutory declaration, i.e. to expose inconsistencies in the evidence in circumstances, when that declaration was made without the assistance of an interpreter.  This ground was raised as well before the Federal Magistrate who rejected it on the basis that the Tribunal did address the issue of how the statutory declaration was prepared.  It turned its mind to the possibility that the inconsistencies could be explained by the fact that it was prepared without the benefit of an interpreter but it was not satisfied that that was a sufficient explanation for the inconsistencies in the circumstances.  As the Federal Magistrate indicated, while the Tribunal may have expressed itself in clearer language than that set out above, it had averted to the applicant’s explanation and rejected it.  There was no jurisdictional error in it so doing. 

7. In this appeal it has been submitted again that to use the statutory declaration in the way it was used amounted to a denial of procedural fairness.  The apparent basis for this submission is the contention that the Tribunal did not adequately consider the possible effect on the reliability of the information contained in the statutory declaration of its being prepared without the assistance of an interpreter.

8. For my own part, I am satisfied that (a) in proceeding as it did;  (b) having put the fact of these inconsistencies to the appellant;  and (c) having provided a reasonable opportunity for the appellant to clarify his evidence (see Ground 3), I am satisfied that there is no basis upon which the course taken by the Tribunal and the conclusion at which it arrived can be impugned in this proceeding. 

   GROUND 3

9. The third ground of appeal relates to the manner in which the Tribunal dealt with a post-hearing report sent to it by the appellant’s then agent.  In the agent’s post-hearing submissions the agent submitted that the appellant was nervous at the hearing and this might have led him to confuse the order of events.  The Tribunal did not accept the inconsistencies could adequately be explained by nerves, stress or confusion.  As it observed, it discussed each of the major issues with him “at considerable length at the hearing and in each case clarified its understanding of these points” with him.  The appellant, it considered, had considerable opportunity to explain and clarify his evidence.  He did not display any obvious difficulty in presenting his evidence.  The Tribunal did not in consequence accept that the difficulties with his evidence could be explained by nerves etc. 

10. In reaching this conclusion the Tribunal had regard to a report by a Ms Follese, a senior social worker who had made an assessment of the appellant on 11 November 2005, this being the report forwarded to the Tribunal by the appellant’s then agent.  The report does no more than describe the appellant’s account of events in Albania and of how he was presently feeling, i.e. he was experiencing stress which had been affecting his memory and he had become quite forgetful.  While Ms Follese indicated that the appellant was to have further appointments with her, she expressed no views whatever on the appellant’s claimed condition and its possible effects.  She made no request to the Tribunal to delay reaching a decision in the matter.  Indeed, her letter was simply a “to whom it may concern” letter which indicated that if the respondent required further information they could contact her.

11. The alleged lack of procedural fairness that is relied upon in this appeal, as it was also before the Federal Magistrate, was that, in the above circumstances, there was a failure to wait for further reports on the appellant’s condition.  The Federal Magistrate determined quite correctly in my view that no jurisdictional error was apparent in the way the Tribunal dealt with this matter.  It took account of the report but the report itself did not add to what the appellant had already attempted to offer as his explanation for the inconsistencies in the post-hearing submission. 

12. In the appellant’s submissions, a matter not particularised as a ground of appeal was also agitated. This related to an alleged lack of procedural fairness because of the emphases placed on independent country information. That information was not specifically about the appellant or another person, rather it was merely about a class of persons about which the appellant was a member. For this reason to the extent that it is alleged at all that it was not properly put to the appellant it is misconceived: see s 424A(3) of the Migration Act. The real complaint, though, appears to be the view taken by the Tribunal of the body of country information before it. That was a matter for the Tribunal. That the appellant might have wished that the Tribunal would take a different view provides no ground for an assertion of jurisdictional error.

13. I will order that the appeal be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        22 December 2006

The Appellant appeared in person.
Counsel for the Respondent:	Dr C Bleby
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 December 2006
Date of Judgment:	22 December 2006