SZADS v Minister for Immigration - [2003] FMCA 231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADS v MINISTER FOR IMMIGRATION

[2003] FMCA 231

MIGRATION – Review of decision of the RRT – application for a protection visa – whether the applicant has a well-founded fear of persecution for reasons of political opinion – where the applicant claimed that his wife and children had been murdered – where the applicant had returned to his country on a number of occasions – where there was delay in lodging his application for a protection visa – where the Tribunal made factual errors in findings – where these errors led the Tribunal to make adverse findings about the applicant’s credibility – whether the claim about his wife and children was a recent invention – where the Tribunal considered country information that had not been shown to the applicant – whether there is reviewable error in the decision.

Migration Act 1958 (Cth), ss.48A, 424A(1), 424A(3)(a)

Krimo v Minister for Immigration (Unreported FCA 4 July 1997)
Craig v South Australia (1995) 184 CLR 163
Muin v Refugee Review Tribunal (1991) 90 ALR 60
VBAC v Minister for Immigration [2003] FCA 205

Hathaway “The Law of Refugee Status” (1991) Butterworths at 84-86
Taylor, “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions” (1994) 13 University of Tasmania Law Review 43
Kneebone, “The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role? (1998) 5 Australian Journal of Administrative Law 78

Applicant:

SZADS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 137 of 2003

Delivered on:

3 July 2003

Delivered at:

Sydney

Hearing date:

22 May 2003 – Final submissions received 6 June 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore Solicitors

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 137 of 2003

SZADS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter arrived in Australia on 23 March 2002. On 21 November 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 29 November 2002 the Minister refused to grant the protection visa and on 9 December 2002 the applicant applied for review of that decision. The applicant was interviewed by the Refugee Review Tribunal on 17 January 2003. The same day the Tribunal made its decision to affirm the original decision of the delegate. The applicant was advised of the decision on 20 January 2003.
This application for protection, which was declined by the delegate and the RRT, was not the first such application made by the applicant. On 18 August 2000 the applicant had made a claim for a protection visa which was declined by the delegate and considered by the Tribunal in January 2002. The applicant was invited to appear before that Tribunal, but, though he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 231
Decision Date: 3 July 2003

CaseChat Overview and Summary

In the case of SZADS v Minister for Immigration, the primary focus of the dispute was whether the Tribunal erred in its assessment of the applicant's credibility, leading to an incorrect conclusion regarding his refugee status. The applicant contested the Tribunal's decision, arguing that it had misinterpreted his statements and used these misinterpretations to undermine his credibility. The Federal Court was tasked with reviewing the Tribunal's decision to ensure it was free from jurisdictional error and properly based on the evidence presented.

The legal issues before the court included whether the Tribunal correctly interpreted the applicant's statements and whether these interpretations were appropriately used to assess the applicant's credibility. Additionally, the court had to determine if the Tribunal's findings were based on a material contradiction or simply a difference in language. The court's reasoning involved a detailed examination of the Tribunal's findings and the evidence provided by the applicant. The court found that the Tribunal did indeed misinterpret the applicant's statements, leading to an erroneous conclusion about his credibility. Specifically, the Tribunal incorrectly identified a material contradiction in the applicant's statements regarding his movements after leaving Delhi, which it used to discredit his account.

Based on this analysis, the court determined that the Tribunal's decision was affected by jurisdictional error, as it had made an erroneous finding and reached a mistaken conclusion. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent's costs in the sum of $4,250.00. This outcome underscores the importance of correctly interpreting evidence and ensuring that findings are properly based on the applicant's statements and circumstances.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs in the sum of $4,250.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Craig v South Australia (1995) 184 CLR 163 the High Court stated at 179:“If such an administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby effected, it exceeds its authorities or powers. Such an error of law is jurisdictional error which would invalidate any order or decision of the Tribunal which reflects it.” It seems to me that taking into account the strictures on the evidence of refugees found in a much quoted extract from Professor Hathaway’s, “The Law of Refugee Status” (1991) Butterworths at 84-86 and in Taylor, “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions” (1994) 13 University of Tasmania Law Review 43 and Kneebone, “The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role? (1998) 5 Australian Journal of Administrative Law 78 that the Tribunal here did fall into error by making an erroneous finding or reaching a mistaken conclusion. It first came to an erroneous finding about the applicant’s use of a migration agent in the preparation of his statements. It used that erroneous finding to support its views about the lack of credibility of the applicant. Then on the basis of those views turned what otherwise might be seen as no more than a difference in language into a “material contradiction” which further damned the applicant’s credibility. The Tribunal makes another finding of a material contradiction in relation to this matter at [CB 175/176] the Tribunal states this:“In the protection visa application the applicant claimed that members of an opposition group found out where he was in Delhi and harassed him there, therefore he returned to his home town. This claim was not included in the first protection visa application. The Tribunal does not accept that his parents did not tell him about this because they did not want to upset him, as claimed during the hearing, because his claim was that he had been harassed on this occasion. Therefore the Tribunal finds that it is a recent invention, and does not accept it. This finding is strengthened by the fact that whereas the applicant claimed in his protection visa application that he returned to his home town, during the hearing he stated that after leaving for Delhi he went to Bombay and never returned to his home town. The Tribunal finds that this is a material contradiction, which the applicant has not explained to its satisfaction. The applicant explanation – that he never went back to his home town, rather he went to Delhi and then Bombay – is not satisfactory, because it did not seek to explain the contradiction.”The Tribunal has once again read something into the applicant’s statement which does not appear to be there. The applicant did not say in his statement that he returned to his hometown he stated at [CB 91]:“Members of the opposition group came to know about my whereabouts and commenced to harass me in New Delhi then I decide to go back to my home town. My family advised me to leave India.”It is difficult to see how the Tribunal could have come to the conclusion that what occurred constituted a material contradiction on the part of the applicant. The applicant was questioned upon the following lines:“You then state that after staying in Delhi, you return to your home town, a moment ago you said that after you went to Delhi you went to Bombay and then you left India. What is the truth again Mr Singh because you are contradicting yourself. I never went back to my hometown. I went to Delhi to Bombay.”The reference of the Tribunal is to the statement which, as I have pointed out, does not say that he went back to his home town merely that he decided to do so and it would appear was put off by his parents. Once again the Tribunal has fallen into the error of misreading the evidence and then basing findings of credibility upon those misreadings.

Ratio Decidendi

Legal Principle Established

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