SZCEZ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1024

FEDERAL COURT OF AUSTRALIA

SZCEZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1024

SZCEZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD 578 OF 2006

EMMETT J
2 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 578 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCEZ
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	2 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 578 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCEZ
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	2 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders of the Federal Magistrates Court dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal, (‘the Tribunal’).  The appellant appears without legal representation, although he has been assisted by an interpreter.  At one stage, in the course of the hearing, he asked for an adjournment of three months in order to obtain legal advice and assistance.  No reasons were advanced as to why some step had not been taken earlier to obtain legal advice and, accordingly, I declined to grant an adjournment.

2. The appellant is a citizen of India and arrived in Australia on 22 September 2002.  On 22 October 2002, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 31 October 2002, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa. On 25 November 2002, the appellant applied to the Tribunal for review of the delegate’s decision. On 16 October 2003, the Tribunal affirmed the delegate’s decision not to grant a protection visa. The reasons for that decision were handed down on 11 November 2003.

3. On 9 December 2003, the appellant commenced a proceeding in the Federal Magistrates Court.  In that proceeding, the appellant claimed Constitutional writ relief in respect of the Tribunal’s decision.  A number of unparticularised grounds were stated in the original application.  An amended application was filed on 6 April 2005.  The amended application is somewhat difficult to follow, insofar as it specifies any grounds.  However, in the events that have happened, it is not necessary to deal in any detail with the grounds specified in the amended application.   After a hearing on 28 February 2006, the Federal Magistrates Court, on 3 March 2006, ordered that the application be dismissed and that the appellant pay the Minister’s costs in the sum of $6,300. 

4. By notice of appeal filed on 21 March 2006, the appellant appealed to the Federal Court of Australia. Two grounds of appeal are stated in the notice of appeal. However, in written submissions received by the Court on 1 August 2006, the appellant indicated that the only ground that he wished to press on the hearing of the appeal was an alleged contravention of s 424A of the Act. While the specific particulars of non-compliance with s 424A were not stated in the amended application, the primary judge addressed in his reasons arguments that had apparently been advanced concerning failure to comply with s 424A of the Act. Before referring to extracts from the findings and reasons of the Tribunal relied on by the appellant, I should say something about s 424A and Division 4 of Part 6 of the Act, in which s 424A is to be found. Under s 422B, Division 4 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Under s 423 an application for review by the Tribunal may give the Registrar of the Tribunal certain documents. Under s 424, the Tribunal may seek additional information. Section 424A provides that the Tribunal must give to an applicant particulars of any information that the Tribunal considers would be the reason for confirming the decision that is under review. The Tribunal must ensure that the applicant understands why the information is relevant to the review and must invite the applicant to comment on it. However, under s 424A(3), the section does not apply to information that is not specifically about the applicant or another person and it does not apply to information that the applicant gave for the purposes of the application to the Tribunal.

5. In the light of the reliance on an alleged contravention of s 424A, it is necessary to say first something about the Tribunal’s reasons.

6. The appellant attended a hearing before the Tribunal, at which he gave evidence through a Tamil interpreter.  In his written claims to the delegate, the appellant asserted that he had established the Youth Islamic Welfare Association and that, in 1996, that association was invited to link up with the al-Umma organisation.  He said that such a link was made in 1997 and that the aim of the organisation became to crush the Bharatiya Januta Party (‘BJP’), whom he called Hindu fanatics.  The appellant originally claimed that, after an outbreak of Hindu-Muslim violence in 1997, al-Umma’s leaders decided to take revenge on the BJP and the Rashtriya Swayam Sevak (‘RSS’).  The appellant said that he strongly objected because he feared it would result in the government again hunting down Muslims. 

7. In 1998, Al Umma bombed the BJP in Coimbatore.  The appellant claimed that he and 15 people from his organisation went there to give aid to the families of the victims of the blasts.  He claimed that on 15 March 1998 they were arrested by the police and detained for several days during which they were beaten in prison.

8. The appellant claimed that he continued his activities against the government and that a new warrant was issued for his arrest.  However, he escaped to Kerala, where he stayed for nine months.  The RSS and the police identified him there and he then escaped to Andhra where he contacted his father who organised a visa for him through a travel agent.  He fled to Australia via Chennai.  While the appellant stated in his application to the Tribunal that he would submit additional information, he provided no further evidence to the Tribunal before the hearing. 

9. At the hearing, the Tribunal asked the appellant for basic background information about al-Umma and asked him whether he claimed that al-Umma’s leaders discussed their plans with him after the outbreak of violence in 1997.  The appellant told the Tribunal that he had been charged and that proceedings were commenced against him following the Coimbatore bombings   The Tribunal asked the appellant questions about the alleged charges and the appellant said the he could provide further information about the charges later.  In addition, the Tribunal asked the appellant why he returned to Tamil Nadu if there was a warrant for his arrest there.  He responded that he could only leave through Chennai, because it is there that some officers accept bribes. 

10. The Tribunal referred to two documents that were submitted by the appellant within a month after the hearing.  The Tribunal also referred to country information that was available to it concerning circumstances in India.  In particular, it referred to a communication from the Department of Foreign Affairs and Trade, titled Ability to Depart India if Charges Outstanding.  The report was quoted by the Tribunal as saying:

    ‘Advice from a number of sources indicates that no one of concern to the authorities and for whom an arrest warrant was in force would be able to leave the country either undetected or by bribery.’

11. The Tribunal considered that the appellant’s evidence at the hearing and his subsequent written evidence contained several anomalies and implausibilities. The Tribunal found that the appellant was frequently vague and evasive in his answers. The Tribunal gave its reasons for those conclusions. In those reasons there are three passages to which the appellant points as an indication of failure to comply with s 424A.

12. The first is as follows:

    ‘At the hearing, when I asked about his written claim that he had objected to al-Umma’s plan to take revenge on the BJP and RSS, which resulted in the Coimbatore bombing, first he claimed that they did not discuss their plans with him.  Then he claimed that they did not initially inform him of their plans but later contacted him and discussed what could be done about the BJP.  On the basis of this contradiction, I am unable to accept that he was consulted by al-Umma abut their plans before the Coimbatore bombings.’

    The appellant asserts that this matter was one of the central parts of his case that was rejected by the Tribunal. He says that it was part of the reason for the Tribunal’s decision and therefore the matter should have been put to him in writing, pursuant to s 424A.

13. The appellant, however, does not identify the information that is said to have been part of the reason for the Tribunal’s decision. A fair reading of the passage indicates that the reason for the Tribunal’s decision, or part of the reason for the Tribunal’s decision, was that the appellant gave inconsistent answers to the same question. It was not the written claim that had been made to the delegate, or the information contained in it, that formed part of the reason. Rather, it was the fact that the appellant gave inconsistent answers to questions about that written claim. I do not consider that there was any failure to comply with s 424A in relation to this passage.

14. The second passage to which the appellant refers is as follows:

    ‘He provided two documents in support of his claims.  I do not accept the genuineness of either.  He claimed at the hearing that he was arrested on 15 March 1998 and charged with 18 offences including taking part in the Coimbatore bombings. These occurred between 14 and 17 February 1998.  He undertook to obtain documentary evidence of the charges, claiming that these had only now become available.  However, the first document purports to be a summons addressed to him to appear before a Magistrate on 15 March 1998.  Moreover, it is dated 8 February 1998, that is, six days before the first of the bombings occurred.  Furthermore, the letter is in English, rather than Tamil, the principal language of Tamil Nadu.  Also, the English is execrable and at times incomprehensible.  In addition, he did not claim in his previous evidence, including at the hearing, that he received a summons; he claimed that he was arrested when he and others went to Coimbatore to help victims of the bombings. 

    The second document is also, implausibly, in English.  It refers to him only by his first names.  And his group is titled “Youth Welfare Organisation”, whereas at the hearing he referred to it as the “Islamic Welfare Association”.’

    The second document is a sheet of paper with a letterhead, the sheet is otherwise blank.  The appellant asserts that the Tribunal should have put to him the matters contained in the passage that I have just quoted. 

15. However, it is clear that the passage does no more than state why the Tribunal did not accept the genuineness of the documents submitted one month after the hearing.  That is to say, the Tribunal gave its reasons for not accepting the documents as corroborating the appellant’s claims in any way.  The passage constitutes the reasons for rejecting evidence.  It is not part of the reason for the Tribunal’s decision.  The Tribunal, for example, could have said that, because the appellant has provided false documents it would not regard him as a credible witness.  That, however, does not appear to me to be a fair construction of what the Tribunal was saying. 

16. The third passage to which the appellant refers is as follows:

    ‘Based on the country information, I am unable to accept his claim that although he had more than 18 charges pending against him, he was able to depart India through bribery.  For the same reason I do not accept that he departed through Chennai, despite the risks to him of returning there, because that was the only place he could bribe his way through the airport.’

    The appellant points to the fact that in his application for a protection visa, he answered a question by saying that he left India from Chennai airport.  He says that that is information that forms part of the reason for the Tribunal’s decision.

17. That, however, is not what the Tribunal is saying in the passage that I have just cited. The passage explains why the Tribunal rejected the appellant’s assertion that he returned to Tamil Nadu and left through Chennai because it was there that some officers accept bribes. The Tribunal was simply saying that, having regard to the country information, which it had no obligation to put to the appellant under s 424A, the Tribunal did not accept his explanation for returning to Tamil Nadu and departing through Chennai. I do not consider that there was any contravention of section 424A in relation to the matters that are the subject of this third passage.

18. The primary judge, in his reasons, dealt with the contentions that had been advanced on behalf of the appellant. The appellant points to no specific error in his Honour’s reasons and I have discerned none.  I do not consider that there is any substance in the ground of appeal in the notice of appeal, which is in the following terms:

    ‘His Honour erred in interpretation and application of section 424A of the Migration Act, in the decision of the Refugee Review Tribunal.  This section ought to be interpreted with the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24.  His Honour erred in this issue as the relevant documents provided to the Tribunal by third parties through the applicant.  Further, the Tribunal did not discuss with the applicant about material contained in the independent country information when it contradicted the evidence given by the applicant.’

    That last aspect was not the subject of any submission by the appellant. 

19. In any event, it has no substance having regard to the terms of s 424A(3), to which I have already referred. I consider that the appeal must fail.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        8 August 2006

The Appellant appeared in person
Counsel for the Respondent:	Ms RA Pepper
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 August 2006
Date of Judgment:	2 August 2006