SZBDG v Minister for Immigration

[2005] FMCA 1079

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDG & ANOR v MINISTER FOR IMMIGRATION
& ANOR [2005] FMCA 1079

MIGRATION – Review of decision of RRT – where the applicants are mother and daughter – whether the applicant was given a meaningful hearing invitation as required by s.425 of the Migration Act – whether the allowance of discussion to proceed in between an infant’s cries during a hearing could constitute jurisdictional error – whether the Tribunal provided the applicant with written notice in accordance with ss.424A(1) and 441A of the Migration Act in relation to inconsistencies within the applicant’s evidence – whether the Tribunal considered the inconsistencies to be the reason or part of the reason for confirming the decision under review.

Judiciary Act 1903
Migration Act 1958, ss.425, 424A(3)(b), 424A(1), 441A

Kioa v West (1985) 159 CLR 550
Minister for Immigration v NAMW [2005] FCAFC 94
Perera v Minister for Immigration [1999] FCA 507 at 17
STPB v Minister for Immigration [2004] FCA 818
Minister for Immigration v Bhardwaj (2002) 187 ALR 117
Minister for Immigration v Capitly [1999] FCA 193
SAAP v Minister for Immigration [2005] HCA 24
NAZY v Minister for Immigration [2005] FCA 744
SZDQL vMinister for Immigration [2005] FCA 769
VAF v Minister for Immigration (2004) 206 ALR 471

Applicants: SZBDG & SZBDH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 1558 of 2003

Judgment of: Raphael FM

Hearing date: 1 August 2005

Date of Last Submission: 1 August 2005

Delivered at: Sydney

Delivered on: 8 August 2005

REPRESENTATION

Applicant: In Person with Tamil interpreter

Counsel for the Respondent: Ms R Henderson

ORDERS

1. Application dismissed

2. Applicant to pay respondent’s costs assessed in the sum of $5,000,

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1558 of 2003

SZBDG & SZBDH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a mother and daughter. They are citizens of India. They arrived in Australia on 13 February 2001. On 28 March 2001 they lodged an application for Protection (Class XA) Visas with the Department of Immigration and Multicultural Affairs. On 24 May 2001 a delegate of the Minister refused to grant protection visas and on

   
   

   4 June 2001 the applicants applied for review of that decision by the Refugee Review Tribunal. On 24 March 2003 the mother applicant attended a hearing before the Tribunal. She had on 29 August 2002 given birth to her son. She brought the infant son to the Tribunal hearing. The infant son had made his own application for a protection visa and his application was dealt with at the same time by the same Tribunal. On 30 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa to the applicants and it handed down that decision on 25 July 2003.

2. The applicant mother’s (the “applicant”) claim to have a well founded fear of persecution for the convention reason of political opinion was based upon her connection with the Naxalite group, People’s War Group (“PWG) of which her father had been a member and with whom she had been associated for approximately 20 years. She commenced assisting them by teaching local farmers whilst she was undertaking a Bachelor of Arts course in Tamil Nadu between 1981 and 1984. She changed her degree to a Bachelor of Physical Education. She obtained a Master of Physical Education in 1991. In the same year she married her husband who was another member of the PWG. She claimed that her father was arrested on their wedding day in July 1991 and jailed for six months for supporting a PWG member wanted by the police. He died upon his release. At her father’s funeral her husband was arrested and she was taken to the police station for interrogation upon her husband’s activities. She claims that she was tortured and that her husband was imprisoned. In 1997 her husband departed India for Australia. She was harassed by the police after her husband had left and eventually decided that she should join her husband in Australia as she had been “threatened with dire consequences by political thugs and opponents of the PWG”. She believed that if she returned to India she would be killed by rival political groups or by the Indian police and secret agents.

3. At the hearing before the Tribunal these matters were discussed. The Tribunal states at CB [116]:

   “She gave a confused and contradictory account of her highest education studies…

   At hearing, the applicant claimed that whilst she belonged to the PWG she was not a terrorist. She says she knew it was a terrorist group but that neither she, her father nor her husband believed in violence and were not involved in terrorist activities. She claimed that she wanted to teach the local farmers about their rights to demand proper wages from the landowners.

   …she stated that many members of the organisation were opposed to her because of her refusal to be involved in violent or terrorist activities. She claims she was still a member of the PWG and continued to operate as a member of a cell of about 25 people until she left  India in 2001.”

4. In its findings and reasons the Tribunal noted that the PWG was a terrorist organisation banned in a number of Indian States. At CB [126] the Tribunal states:

   “The Tribunal notes that the applicant’s evidence at hearing differed somewhat from her written claims.”

   At CB [127] the Tribunal says:

   “The Tribunal does not accept that the applicant was a member of the People’s War Group (PWG) or that she was a member when she departed India for Australia in 2001. As the Tribunal does not accept that the applicant was a member of PWG it follows that the Tribunal does not accept that she faces persecution for any Convention related reason because of her membership of the organisation and her activities with the organisation.

   The Tribunal found many aspects of the applicant’s evidence not plausible and there were many contradictions and inconsistencies between her written claims and evidence at hearing. In her written application she clearly sets out details of her educational achievements and her history of teaching employment. At hearing she tried to resile from these earlier statements however her explanations for the inconsistencies were not satisfactory.”

5. At CB [128] the Tribunal says:

   “The Tribunal accepts that the applicant does not believe in violence and the violent aims of the PWG. The Tribunal does not accept that the organisation would have tolerated a member for 20 years who opposed their basic objectives of violent overthrow of the government. In the light of the country information on the nature of the PWG organisation and the evidence given as to the applicant’s beliefs the Tribunal id not satisfied that the applicant was ever a member of the People’s War Group.

   The Tribunal also notes that the applicant left India legally and does not accept that if the authorities had an adverse interest in her, and that she was an active member of a banned organisation which has engaged in extreme acts of violence and had been arrested many times  she would have been able to easily leave the country. The Tribunal does nor accept that her agent was able to organised her departure through bribery.”

6. On 8 August 2003 the applicant filed an application under the Judiciary Act 1903 (Cth) for review of the decision of the Tribunal. The applicant stated as follows:

   I do not accept the decision made by RRT as it is unfair and hasty. The decision is not to grant protection visa. The interpretation of our case by RRT is not practical, which is faced by me at the time of fleeing India. I am sorry that the interpreter has not properly interpreted my saying, resulting in misleading decision hence, the audio cassette need to be retranslated and the hearing of my case is requested.

   The RRT is stiff in its approach in analysing my case and the decision is arrived at keeping the old information (country information) in RRT’s view.

   The RRT does not accept the facts that has been experienced by me. When I am fleeing the country to save my life. How can the RRT expect me to carry the evidence papers with me? How can the RRT deny the truth regarding my membership with the banned PWG Party until the time I left India?

   How can the RRT jump to a conclusion that bribery has not saved my life in reaching Australia. How can RRT do not accept friend and well wishes can help to buy ticket to board the plane?

   In proper translation and misinterpretation and then on to decision making has failed to probe the merits and facts of my case. The member was not ready even to inspect the scar on my own body, when I requested to inspect. I will produce more facts on my claims as to how the hearing process has miserably failed to accept the facts of my case.

   The proceedings were due to be heard in this court in January 2005 but were adjourned on at least two occasions because of the health of the applicant. They were eventually heard on 1 August 2005. By that time the applicant had filed a number of affidavits expanding on her grounds for seeking review and responding to the Minister’s written submissions which had been filed for the purposes of the first hearing. The major plank of the applicant’s claim at that time was that she believe that she had not been given a meaningful hearing invitation as required by s.425 of the Migration Act 1958 (the “Act”) because she had taken her child into the hearing room and he had constantly cried. This is expanded at a later date to indicate that the hearing had lasted four hours and that she had only been given one break. She believed that in order to obtain a meaningful hearing she would have been interviewed by the Tribunal without these interruptions.

7. The authorities are clear that any hearing before the Tribunal must be one in which the applicant is given a proper opportunity to explain her case and respond to the questions of the Tribunal: Kioa v West (1985) 159 CLR 550 per Mason J at 597 and Brennan J at 629; Minister for Immigration v NAMW [2005] FCAFC 94. It has been said that this cannot be done in the absence of an interpreter: Perera v Minister for Immigration [1999] FCA 507 at 17; STPB v Minister for Immigration [2004] FCA 818. It cannot be done if the applicant is too ill: Minister for Immigration v Bhardwaj (2002) 187 ALR 117 at [40] per Gummow and Gaudron JJ; Minister for Immigration v Capitly [1999] FCA 193.

   
   

   I would suggest that if the applicant had taken her infant child to a hearing and the infant child had been sick, requiring the applicant to leave s.425 may not have been complied with. But I am not satisfied that in the circumstances of this particular case where the applicant chose to bring her own child to the hearing, and where the Tribunal would appear to have shown a considerable amount of restraint in allowing the discussion to proceed between the infant’s cries, that reaction of the Tribunal would constitute jurisdictional error. It seems to me that a reading of the Tribunal decision would indicate that the applicant’s claims were articulated clearly, were understood by the Tribunal and were analysed by it in an appropriate manner. The applicant has not criticised the Tribunal’s conduct in relation to the infant but has submitted that the Tribunal should have brought the hearing to an early conclusion and set another date.

8. The real issue in this case was only revealed at the hearing on

   
   

   1 August. Between the original hearing date and then the High Court had handed down its decision in SAAP v Minister for Immigration [2005] HCA 24. This case has been considered relevantly by Jacobson J in NAZY v Minister for Immigration [2005] FCA 744 and by Sackville J in SZDQL vMinister for Immigration [2005] FCA 769. In NAZY Jacobson J held, following Minister for Immigration v Al Shamry [2000] FCA 1679 that information provided to the delegate for the purposes of the Minister’s decision is not information provided to the Tribunal for the purposes of its decision and was therefore not information that fell within the exception contain in s.424A(3)(b) of the Migration Act. His Honour found that where inconsistencies between information provided to the delegate and an applicant’s statements before the Tribunal constituted information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review then the Tribunal was obliged to give notice in accordance with the procedures contained in s.441A of the Act; NAZY at [42].

9. Jacobson J’s decision was given on 23 June 2005 and was made by him on appeal from a Federal Magistrate. It is therefore binding on me. In SZDQL Justice Sackville made a decision on 10 June 2005 also on appeal. That case did not involve inconsistency between information provided to the delegate and information provided to the Tribunal. It dealt with certain information which the Tribunal had and which it put to the applicant concerning the status of two persons who the applicant claimed to have fear of. His Honour looked at the problem from the point of view of whether the facts referred to by the RRT in its reasons constituted information that the RRT considered would be the reason or part of the reason for affirming the decision under the review. In other words, was it information that enlivened the subsection? His Honour considered the views of the Full Bench in VAF v Minister for Immigration (2004) 206 ALR 471 and noted that in making the assessment the question is to be judged retrospectively in the light of the RRT’s decision. Sackville J accepted that “some unbundling of the immediate reason for the decision is required for the purposes of s.424A(1)” but indicated that the fact that the Tribunal acknowledged that the information had some relevance did not necessarily mean that the information formed “a part of the reason”. His Honour considered the approach that should be taken was set out in VAF at [33]:

   “When a Tribunal’s reasons are to be evaluated for section 424A(1) purposes the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decisions. That task, necessarily, is an interpretive one. In some instances the differentiation of the integral and the inessential may by no means be easy and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considers to be integral. “

10. His Honour went on to say:

    If the information considered in the context of the RRT’s reasoning process and the aggregative of its findings is “relatively minor and unimportant in the scheme of things (VAF, at [4]) it is not likely to be a part of the reason for a decision. A useful test is whether to information was “so integral to the reasoning process rejecting the applicant’s claim as to require as a matter of fairness that the applicant be told that information and why it was relevant to the review.”

11. In the instant case the Tribunal made two notations of inconsistency in evidence. It used the existence of inconsistencies to indicate lack of plausibility in the evidence. The Tribunal then went on to find that the applicant was not a member of the Naxalite group because it did not believe that that group would have kept her within its fold for 20 years if, as the Tribunal found, she had been opposed to violence. The Tribunal made an express finding of acceptance of part of the applicant’s evidence about her opposition to violence at the same time as it indicated concern about her credibility because of the differences between her story at hearing and her submission in writing to the delegate relating to her employment history. Ms Henderson, who appeared for the Minister argued forcibly that the reason the Tribunal did not accept the applicant as a member of PWG was not the applicant’s lack of credibility but the inconsistency between her stated moral position and that of the organisation to which she said she belonged. The Tribunal’s approach could therefore be said to be looking objectively at the actions of the PWG rather than those of the applicant. The Tribunal was in effect saying “I have looked at the independent country information concerning this organisation. That satisfies me that a person of your moral suasion would not have been permitted within its ranks for 20 years and I am therefore not satisfied that you were a member.” Because this is not an attack on the applicant’s credibility, the Tribunal having found she was credibly a non violent person, the inconsistencies which it did find in other evidence were not so integral to the reasoning process as to require, as a matter of fairness, that the applicant be told of the information in accordance with the requirements of s.424A.

12. There are those who might say that this approach is too casuistic and that the essential reason for the decision in this case was the Tribunal’s lack of satisfaction as to the credibility of the applicant. The argument would run that any matter that went to the applicant’s credibility becomes an integer of a decision. The view which the Tribunal expressed as to the applicant’s plausibility was based upon the conflict between information provided to the delegate and evidence given at the Tribunal hearing. Why would the Tribunal make reference to these matters if they were of no importance?

13. There is no tension between the decision in NAZY and SZDQL. I think it is clear that I must do my best to interpret the Tribunal’s reasons so as to isolate those that were integral. The Tribunal accepted the evidence of the applicant that she did not believe in violence or the violent aims of the PWG from its observations of her giving evidence and the manner and content of that evidence. It came to its decision about the plausibility of her evidence concerning her work experience from a comparison of her evidence with the written documentation. It is a trite observation that a witness may be truthful in one area of his or her evidence and untruthful in another. I believe that the way in which the Tribunal has expressed its findings and reasons indicates that it looked at the, matters separately and was not influenced in its findings as to truth of her statements concerning violence by any evidence relating to her academic record. I am satisfied that the Tribunal’s finding that the PWG would not have had her as a member for 20 years if she objected to an essential ingredient of its program was the real basis upon which the Tribunal came to its decision. The fact that another Tribunal faced with the same evidence might well have found that there was nothing inconsistent with the PWG continuing to utilise the services of a respected teacher who, whilst disagreeing with the use of violence, did not otherwise cause friction with the organisation is not to the point. The Tribunal properly assessed the evidence, including the country material available, weighed up the applicant’s argument and came to its conclusion. Any interference with that conclusion would be trespassing on merits review.

14. I am satisfied that the failure of the Tribunal to provide the applicant with written notices as required by combination of ss.424A(1) and 441A was a failure which did not relate to the information that the Tribunal considered would be the reason or part of the reason for confirming the decision under the review. The Tribunal was therefore not bound to give the appellant the particulars in the manner required and there was no jurisdictional error in its failure to do so. As I have found there is no other jurisdictional error in relation to this decision of the Tribunal, I must dismiss the application, which I do. I order that the applicant pay the respondent’s costs assessed in the sum of $5,000 which sum includes the previously adjourned hearings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: