SZCLR v Minister for Immigration
[2005] FMCA 1646
•16 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1646 |
| MIGRATION – Refugee – Tribunal’s factual findings – actual bias – documentary evidence – provision of information to the applicant as required by s.424A(1) – Tribunal’s view on inconsistency between versions of claims. |
| Migration Act 1958, ss.36(2), 424A, 424A (1), 424A(3)(b) Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal Ex parte H [2001] HCA 28 NAHT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1049 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 |
| Applicant: | SZCLR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 79 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 June 2005 |
| Date of Last Submission: | 1 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. G. Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $6500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 79 of 2004
| SZCLR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 13 January 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 November 2003 and handed down on 16 December 2003 affirming the decision of the delegate of the respondent Minister made on 28 February 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.
The applicant is a citizen of India who arrived in Australia on
18 January 2003. On 28 January 2003 he made an application for a protection visa to the first respondent's Department. The application for a protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 23. The applicant's reasons for claiming to be a refugee are set out at CB 16:
“I was in political [“party”/ “trouble”/ “problem”] [this word is the subject of discussion below] there is no safe for life. All the information I will submit later.”
The applicant did not submit anything further to the first respondent's Department. His application to the Tribunal is at CB 51 to CB 54 and the reason for making the application for review to the Tribunal is given as:
“The reason why I consider myself a refugee is found in my statement of claim. Additional and further submissions will be made at a later stage.”
On 11 November 2003 the applicant submitted a letter to the Tribunal, which contained information that he said he wanted to provide to the Tribunal before attending the hearing with the Tribunal which was scheduled for 12 November 2003. For the most part, this information, reproduced at CB 60 is biographical information and in relation to his refugee claims, the applicant states that he has information to give to the Tribunal which he wants to do “personally” and that he will tell “everything when he comes for the interview”. The applicant attended a hearing before the Tribunal on 12 November 2003 and the Tribunal's account of what occurred at the hearing is set out in its decision record at CB 75.3 to CB 77.8. The applicant's claims, as they emerged at the hearing with the Tribunal (according to the Tribunal’s account), were essentially that:
1)He is in the travel business and owned a satellite/video business called ‘Star TV Waves’.
2)Sometime in 1994 he met a Sri Lankan man called Jeyabalasingan (“J”). He became friendly with this person.
3)In 1998 J and another person identified as Peter, asked the applicant to broadcast for television, items showing activities associated with the Sri Lankan separatists, Liberation of Tamil Tiger Elam (LTTE) separatists, through his satellite and video business. He travelled to Sri Lanka for this purpose.
4)On his return to India he was arrested and imprisoned for nine months and was tortured.
5)Nonetheless he was approached again by the person called Peter who asked him to continue to relay LTTE items, and he said he could not.
6)At the same time he was told by an Indian policeman to pay a 10,000 rupee bribe and then he could relay the LTTE items.
7)In 2002 the LTTE became angry with the applicant because he did not relay the news items and was told by the LTTE that his family would be “annihilated” if he did not do as he was told.
8)In 2002 he was arrested in India under the Prevention of Terrorism Ordinance, and after two months was released in May 2002. He then visited Singapore on a few occasions.
9)He had escaped from India because he was “wanted” by the authorities and subsequently his lawyer in India told him not to come back.
The Tribunal found that it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention and that therefore the applicant did not satisfy the criterion as set out in s.36(2) of the Migration Act 1958 (“the Act”) for a protection visa (CB 79.7). The Tribunal’s conclusion was based on:
1)The finding that it had been provided with two versions of events, one contained in the application for a protection visa and in the application to the Tribunal, and the other at the hearing before the Tribunal. It noted that “they are vastly different” (CB 78.2). The Tribunal noted that the applicant's explanation at the hearing before it that his lawyer wanted to get money from him was not responsive to the question which the Tribunal had put to him in an attempt to ascertain the reason for what it saw as the inconsistency (CB 78.3).
2)The Tribunal found that the applicant’s “second version of events”, that is, the claims presented at the hearing before the Tribunal, were not credible. This was based on the paucity of the information before the Tribunal, the lack of detail provided in supporting the application, and in this regard the Tribunal noted that the applicant had had ten months since making his application for a protection visa to obtain information from overseas, and that further it had provided, following the hearing that it conducted with the applicant, a further opportunity for the applicant to provide detail in support of his application, or to obtain information from overseas for this purpose (CB 79). It found the applicant's claims to be “undetailed assertions”, “vague”, “non-responsive” and “unlikely” (CB 79.5). The Tribunal, in particular in this regard, had difficulty in accepting the applicant's claim that a policeman would demand money from him and then allow him to relay LTTE videos. It did not find this a credible claim and equally did not believe that the applicant had no control over his own activities and was at the “beck and call” of both the Indian police and the Sri Lankan militants (CB 78.9).
The application filed in this Court on 13 January 2004 claims only that:
“The Tribunal erred by exceeding its jurisdiction and by constructively failed to exercise its jurisdiction”.
No particulars whatsoever are provided. The matter first came before me on 18 January 2005 by way of an application by the respondent Minister for summary dismissal on the basis that the applicant had not filed and served an amended application as had been required by orders made by consent at the first Court date on 16 April 2004. I refused the application for summary dismissal and made further orders, and in particular, that the applicant was to file and serve an amended application giving complete particulars of each ground of review relied upon, on or before 1 February 2005. The applicant did file an amended application on 1 February 2005. The grounds put forward by the applicant are:
“1. Page 3 of the decision of the Tribunal refers to four key elements are required to satisfy the Convention definition. The applicant states that he has the four key elements and therefore entitled to get protection visa.
The first element – applicant must be outside his country.
The second element – the applicant must fear persecution. If the applicant returns to India his life would be in danger.
The third element – the persecution which the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group of political opinion.
The fourth element – the feat of persecution for a Convention must be a “well found” fear. The applicant fulfils all the four elements.
2. The Tribunal failed to see that people in the side of LTTE compelled the applicant to relay LTTE items.
3. The Tribunal failed see that the applicant was threatened by LTTE that he and his family would be annihilated.
4. The Tribunal should have seen that the applicant was arrested under the Prevention of Terrorism. If he relays LTTE items he was arrested and if not he was threatened by LTTE.
5. In all parts of the reasons the Tribunal had found fault with the applicant in some way or other.
6. The Tribunal should have seen that all documents had been destroyed by his family members thinking that they will save the applicant.
7. In page 4 of the reasons about getting passports in India is stated based on an independent country information. In view of that statement of the Tribunal in page 7 about departing from India does not arise.
8. As stated above the applicant did not have any documents. He could not be expected to carry all documents from the country when he was flying away for life.
9. The Tribunal committed mistake in saying that the applicant has no genuine subjective fear of persecution.”
When the matter came on for final hearing before me, the applicant was unrepresented. He was assisted by an interpreter in the Tamil language. Mr. Kennett appeared for the respondents. The applicant tendered three documents:
1)A letter written in the Tamil language.
2)An English translation, which shows it to be a letter from the applicant’s mother in India.
3)A statutory declaration, declared by the applicant on 23 June 2005.
At the commencement of the hearing before me Mr. Kennett tendered a transcript (“T”) of the hearing conducted by the Tribunal on 12 November 2003. The applicant made no objection at first. I took this into evidence. The respondent also filed further written submissions. Nothing further has been filed by the applicant.
At the hearing before me, the applicant stated that he had difficulty before the Tribunal in obtaining documents to support his claims. He said this was relevant to the issue that the Tribunal found that he did not have any evidence to support his claims. The letter submitted now to the Court, written in Tamil and accompanied by an English translation, purports to be from the applicant's mother in India, and is an attempt now by the applicant to explain the difficulty in obtaining the documents to support his claims before the Tribunal. The applicant insisted before me that what he said at the “interview” with the Tribunal is the “really truth” and “I have not given any wrong or false statement”. Towards the end of the hearing before me the applicant indicated a difficulty with the transcript. He stated that the transcript provided by the respondent appeared to be different to what was on the cassette tape of the hearing with the Tribunal. However, when pressed the applicant stated that there were a number of mistakes on the part of the Tribunal and that hearing the tapes would reveal those mistakes. He said:
1)That the Tribunal, at T14, said that “Peter” was arrested in 2001, but the applicant claimed that the cassette tape of the hearing would reveal that he clearly stated that he said 2002. T15 of the transcript reveals that in fact the applicant is recorded as correcting the Tribunal's error and saying “No, 2002”. While it is clear that at the hearing the Tribunal was at first mistaken in regard to the relevant year, clearly the applicant was given the opportunity to address this issue and correct the Tribunal's misunderstanding. Further, there is nothing in the Tribunal's “Findings and Reasons” to show that the Tribunal maintained any misunderstanding as to the correct year in which “Peter” was arrested.
2)The applicant's second example of an alleged error in the transcription was that relating to the issue of “political party”. (I will deal with this issue further below). Clearly the applicant was trying to assert that the Tribunal made a mistake in understanding his original claim to have been connected to political party. I will deal with this aspect below. But this was not an example of any error or mistake in the transcription. In the absence of anything further from the applicant I did not see any need to listen to the audiotape of the hearing. I pressed the applicant as to any other examples of mistakes and his response was, “I have nothing more than that”.
The applicant's originating application to the Court sets out that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction. There is absolutely no indication as to the basis upon which the applicant makes these assertions, nor was the applicant really able to assist at the hearing before me. In his amended application the applicant refers to the “additional grounds”. I agree with Mr. Kennett’s submission that these are perhaps best understood as comprising the grounds upon which the applicant contends the Tribunal exceeded its jurisdiction. In other words the grounds in the amended application can be seen as an expansion of, and subsume, the stated grounds in the originating application. Grounds 1 to 4 and ground 9 take issue with the Tribunal's factual findings, or the conclusions as to facts which the applicant contends the Tribunal should not have reached. Clearly these matters relate only to the merits of the decision, and do not go to show any ground on which the Tribunal's decision is affected by jurisdictional error. The matters asserted in the applicant's Statutory Declaration, filed at the hearing before me, similarly take issue with the factual findings or conclusions of the Tribunal and again go to seeking impermissible merits review of the Tribunal's decision: (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The mere reference to the High Court Judgments in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at paragraph 11 remains unsupported by any other submission or argument to show relevance to the applicant’s case before me now. In any event I cannot see that the applicant before me was misled in any way in relation to “Part B” documents before the Tribunal, nor are there any agreed facts which led to the outcomes in those cases.
Ground 5 in the amended application, as Mr. Kennett submits, is either a general observation about the Tribunal's conclusions, and in this case this does not go to show error on the part of the Tribunal, or is an allegation of bias on the part of the Tribunal. For the applicant’s benefit in particular, I should set out that, allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of actual bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). There is nothing before me to show that the mind of the decision maker was not open to persuasion or that the Tribunal did not approach its analysis of the material with an open mind. Nor can I see that an apprehension of bias can be made. To the extent that the applicant’s complaint may be seen as an allegation that the Tribunal acted with a lack of bona fides in finding fault with the applicant, and that this also may reflect how the Tribunal dealt with the applicant at the hearing (given his complaint about the Transcript of the hearing), then the applicant similarly has provided no evidence to support any such assertion. Nor does the transcript provided show any such action or attitude on the part of the Tribunal’s conduct, its letters to the applicant, the transcript in particular and the decision record demonstrate that the Tribunal “made an honest and genuine attempt to undertake the task required by the legislation”: NAHT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1049 at [36] per Beaumont J.
Ground 6 and 8 go to the issue of the applicant’s claim that he was not able to provide documentary evidence to support his claims. It is clear that the paucity of information and the lack of detail in supporting the application was an important element in the Tribunal's analysis of the claims put forward by the applicant (CB 79.4). Further, it is clear from reading the transcript of the hearing that the Tribunal conducted with the applicant, that the Tribunal raised this issue with the applicant.
For example at T10.8:
“Ms. Hoeben [the Tribunal member]: Okay, now let me just – do you have anything to support anything that you've said here today? For example, do you have anything that shows that you owned a business or had anything to do with a private business known as Star TV Waves at all, anything at all, anything at all?”
Then further at T11.3:
“Ms. Hoeben: … You’ve had a whole 11 months, you didn't send anything to us and the only thing you sent is a sheet of paper telling your employment history.”
Even further at T11.8:
“Ms. Hoeben: You see there’s been no information all delivered to anybody about anything in relation to you. There’s no cassettes – just – there’s no cassettes, there’s no documents, there’s nothing to indicate that there’s anything authentic about what you’ve told me. See I’m having major difficulties accepting anything that you’ve got to say because you've had two opportunities. You had an opportunity 11 months ago to say something and to tell us what your application was. You didn't. You don't need a lawyer. You don't need an immigration lawyer. You also had an opportunity to put it in your review application, absolutely nothing. Each time you tell people I will supply the information later. You never did. You never did until today. Why would I accept what you are telling me now as the truth? Why would I do that?”
At T12.4:
“Ms. Hoeben: Mr – I’m sorry to interrupt but you don't need anybody except yourself. You were told in the letter of the 3rd of September to send us any new documents and written arguments you want the Tribunal to consider. You don't need anybody. All you need is a translated to translate what you have to say. You didn't even bother, you didn't ring us, you didn't say you were having any sort of trouble. I hear about all of this today for the first time. To be quite frank I’m finding it very difficult to accept.”
At T12.6:
“Ms. Hoeben: That's okay, I beg your pardon. Can I just say in relation to this on that letter that was sent from the Refugee Review Tribunal on the 3rd of September 2003 in particular it said, send us any documents or written arguments you want the Tribunal to consider. Please note, any documents or arguments you send should be in English or translated by a qualified translator and answer all of the questions on the form and return the completed form at any time by a particular point in time being the 22nd of September. We received nothing. We received absolutely nothing from you whatsoever. I don't want to hear about this lawyer. I want to know why you didn't do it. When you weren't getting the response that you say you weren’t getting from your lawyer why didn’t you go to a translator and do it yourself?”
At the hearing before the Tribunal the applicant put forward by way of explanation that the difficulty that he had in providing the documents as supporting evidence was due to the fault of his lawyer, or alternatively his own personal ignorance about how to go about pursuing his application before the respondent’s Department, and then the review application before the Tribunal. In any event, it is clear from the Transcript of the hearing that the Tribunal, bearing in mind what it put to the applicant as set out above, gave the applicant further time to provide any documentary evidence to support his claim. The hearing was held on 12 November 2003 and the applicant was given until 17 November 2003 to provide any documents that he was able to provide. This was in spite of the Tribunal having put to the applicant that he had already had eleven months to prepare his case which was the time from his application to the respondent’s Department to the hearing before the Tribunal. The documents purporting to be the statement by the applicant's mother now provided to the Court seek to explain the applicant's mother's difficulties in obtaining documents from the local police station in relation to the applicant. Clearly this statement cannot assist the applicant in showing jurisdictional error in the Tribunal's decision as matters asserted in that document, going to the difficulties that the applicant's mother alleges she had in obtaining any such documentation, occurred on 5 June 2005, some 1 ½ years after the Tribunal handed down its decision. [The translated version of the letter shows the mother stating that on her son’s request she went to the police station “on 5th of June 2005”]. The claims made by the applicant now in his amended application, that the Tribunal should have seen that all the documents had been destroyed by his family members or that the applicant could not be expected “to carry all documents from the country when he was flying away for life”, were not raised before the Tribunal as explanations for his inability to provide any supporting evidence. The assertions now also appear to be inconsistent with the applicant's indication to the Tribunal, and his acknowledgement of this, that he had until “Monday 17th of November” to provide additional material. There was nothing put to the Tribunal as to the documents having been destroyed, or that he did not have the documents as asserted now in the amended application. The Tribunal did subsequently receive some documents from the applicant, being photocopies of accounts under the letterhead of “Star TV Waves” and a letter written in Tamil which the applicant claimed was from his mother. These are reproduced with a covering note at CB 62 to CB 65 and are referred to in the Tribunal's decision record at CB 77.9 to CB 78.1. The Tribunal found that neither of the documents were of assistance “one way or the other” (CB 78.1). I can see no error in how the Tribunal has approached this issue. The applicant’s claims were found to be lacking in detail, the Tribunal put this to the applicant and despite the time already available to the applicant, provided a further opportunity for the applicant to provide any supporting information or documents. The applicant’s complaints about his lawyer, or his difficulties now put forward in obtaining any documents, do not reveal error on the part of the Tribunal.
Ground 7 in the amended application points to the Tribunal's statement in its decision record at CB 77.6 that “it would be unlikely he would have been able to have departed India if he was wanted”. The applicant claims that this does not arise (presumably as an issue to ground a finding against the applicant) in view of the independent country information referred to by the Tribunal at CB 74.8 in relation to the process of obtaining a passport in India. Simply, the context appears to be that the applicant claimed that he was wanted under the Protection of Terrorism Ordinance (PTO) in India and that if he was to return to India he could be arrested. The Tribunal then reports that it indicated to the applicant that it would be unlikely he would have been able to depart India if he was wanted in these circumstances. This presumably was with reference to the information from the Australian Department of Foreign Affairs and Trade, reported at CB 74.9, that persons involved in serious crimes would find it difficult to leave India if they were to seek to be granted a passport. The applicant claims that this did not apply to him as he told the Tribunal that “the issues arising under the PTO happened after he left”. Whatever the applicant's exact complaint in this regard, it is clear that this issue does not assist the applicant. Clearly, the Tribunal in its decision record was reporting on the exchange with the applicant at the hearing. The transcript of the hearing reveals at T14 that the Tribunal discussed with the applicant his travel out of, and subsequent re-entry to, India, and the ability of the applicant to depart India on a number of occasions. It was clearly open to the Tribunal to accept independent country information which conflicted with the applicant's explanations for his ability to leave and re-enter India during the relevant periods when he claimed to have been under investigation. In relation to the applicant's explanation that he was able to leave India because he was only being investigated as a “news agent” or a “news reporter”, and that it was not until the arrest of the person called “Peter” that his case became “very serious”, the Transcript reveals that the Tribunal discussed with the applicant (T14.9 to T15.1) that “Peter” was arrested in 2002 and yet the applicant still remained in India while this person was under arrest, and that he did not leave India until well after, in January 2003. This ground also does not assist the applicant.
The applicant was unrepresented before me and I therefore considered whether any other ground for review was evident on the material before me. In this regard, I note that the Tribunal reached its ultimate conclusion that the applicant was not entitled to protection in Australia on two bases:
1)That it had been provided with two “versions” of events, one contained in the application to the respondent’s Department and the Tribunal and the other at the hearing before the Tribunal (CB 78.2). The Tribunal found that the “two versions of events are vastly different”.
2)The “second version” of events, as it was put at the hearing before the Tribunal, was that the applicant was detained twice by the Indian authorities because of his alleged association with filming of Sri Lankan militants overseas, that he is wanted by the police because of this association, and had been arrested and tortured by the police, and that he was released in May 2002 and came to Australia in January 2003 to escape because he was wanted in India.
In relation to the first basis above, two further matters require consideration. The first is whether the Tribunal failed to provide information to the applicant as required by s.424A(1) of the Act. This issue arose at the hearing before me and I gave the respondents and the applicant the opportunity to provide further written submissions. I have before me further written submissions from Mr. Kennett for the respondents. The applicant has not filed anything further in this regard. The Tribunal clearly found that the two “versions of events” provided by the applicant were “vastly different”. The issue is whether this finding that the two versions are vastly different involved, following the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the dicta of the Full Federal Court in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, a failure to provide particulars of the perceived inconsistency in writing pursuant to s.424A, such that would constitute jurisdictional error. I accept Mr. Kennett's submissions that s.424A does not require the disclosure to the applicant of the Tribunal's view of the material before it, including its view that the material he has put forward is insufficient or implausible and that there are gaps or problems with the applicant's evidence, such as an inconsistency between versions of claims told at various stages. Such views do not constitute information in the sense referred to in s.424A(1): Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J. at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [25], NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [127] and VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82.
The Tribunal's finding that the two versions of events were “vastly different” does not constitute information in the context of s.424A(1) and there was no necessity for the Tribunal to alert the applicant in writing to the fact that it regarded his claims as inconsistent.
I also note relevantly that in his application for review to the Tribunal (at CB 53) the applicant gave as his reason for why he considered himself to be a refugee as:
“The reason why I consider myself a refugee is found in my statement of claim. Additional and further submissions will be made at a later stage”
From the material before me it is clear that up until the date of the making of the application to the Tribunal on 28 March 2003 the applicant had not made any statement in relation to his claims to either the Tribunal or the first respondent's Department other than the very short statement contained in his application for a protection visa as set out at CB 16. The applicant's statement therefore, in his application to the Tribunal, can be seen as a clear restatement of this claim. I do not see this as a case where an applicant has put a lengthy or detailed set of claims in the protection visa application and then makes some general reference to these claims in the application for review to the Tribunal. The applicant originally said that his claim was political “trouble” [or “party” or “problem” – see further paragraph 18 below] and that it was “no safe for life”. In his application to the Tribunal he specifically referred to this claim. In these circumstances, even if the content of the claim made by the applicant in his protection visa application were to be seen as constituting information, then this was information that the applicant subsequently gave to the Tribunal for the purpose of his application to the Tribunal and would fall within the exemption in s.424A(3)(b) of the Act from the need for the Tribunal to provide this information to the applicant pursuant to s.424A(1). In addition I note Mr. Kennett's submissions that in any event the Tribunal's decision record at CB 75.2 shows that at the commencement of the hearing the Tribunal summarised the applicant’s claims as contained in his protection visa application and records that the applicant concurred with the summary. This is supported by what is recorded in the Transcript of the hearing before the Tribunal at T5.2. The Transcript also reveals that as well as referring to the original protection visa application by its reference to “both in your files” the Tribunal particularly, in light of what is set out at T4.6, was also referring to the application to the Tribunal which was on the Tribunal's file. This further supports the view that the applicant's original claims were republished by him to the Tribunal in the application to the Tribunal. I accept Mr. Kennett's argument that the applicant's confirmation of his original claims at the hearing with the Tribunal meant that he gave this information to the Tribunal for the purpose of the application and that this fell within the meaning of s.424A(3)(b) and was therefore exempt from the requirements set out in s.424A(1) of the Act.
Further in relation to inconsistencies in the applicant’s claims, Lindgren J., in SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 (“SZEKY”), and Dowsett J., in SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 (“SZERV”) said that where a Tribunal’s finding is a mere identification of a contradiction between written claims and later claims made to the Tribunal and where there is no reliance upon the truth of those claims, then this is not “information” for the purposes of s.424A(1). In SZEKY Lindgren J., said at [19] to [24]:
“[19] The second aspect concerns the claim made in the appellant’s statutory declaration that in October 1989, the appellant applied to be transferred from the criminal team to the traffic team, and worked as a traffic police officer from then on, although still a member of the PSB. The Tribunal member stated that the appellant gave evidence that in fact he did not seek to be transferred, and was transferred because another officer from the traffic team had paid a large sum of money to be transferred out of it. The Tribunal member concluded, therefore, that a central claim which the appellant had made, namely, that he applied for transfer because he could not ‘tolerate corruptive and autocratic system’, was simply not true.
[20] The question is whether, by reason of its reliance on the inconsistency, there was ‘information’ which constituted the reason or part of the reason for the Tribunal's affirming the decision under review, for the purposes of s 424A.
[21] In WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, a Full Court of this Court stated that:
‘A conclusion by the Tribunal that there was an inconsistency between two pieces of information was not itself "information" for the purposes of s 424(1).’
The Full Court thought that the word, ‘information’, in s 424A(1) was used in the same sense as it is used in s 424(1).
[22] With respect, I do not think those views are plainly wrong.
[23] The present case is not one in which the Tribunal relied upon the information stated in the visa application in the sense of accepting it. Far from accepting that, as the appellant there alleged, he requested a transfer to escape an environment repugnant to his conscience, the Tribunal member either accepted the evidence given by the appellant on the hearing or, at least, noted the inconsistency between the two accounts without preferring one or the other.
[24] The information contained in the statutory declaration which accompanied the visa application was not the reason or part of the reason for the Tribunal’s affirmation of the Delegate’s decision.”
In SZERV Dowsett J. at [11] said:
“Whether or not this intuitive reaction is correct, it seems to me that the argument in this case must fail for two reasons. Firstly, in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct. Secondly, in the present case, the Tribunal requested the applicant to interpret his original visa application statement. He identified his signature at the bottom of the relevant page and agreed that the statement contained his claim, and explained his reasons for fearing return to China. His attendance at the Tribunal hearing and his responses to questioning were for the purpose of the application to the Tribunal. All of that information, therefore, became information provided by him to the Tribunal for the purpose of the application. I am told that this view was taken by Madgwick J in SZFKL v The Minister (2005) FCA 931, but that Jacobson J took a different view in NAZY v The Minister (2005) FCA 744. I find myself in respectful disagreement with the view taken by Jacobson J…”
In SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931, Madgwick J. at [7] stated:
“Counsel for the Minister felt it appropriate to consider the correctness of the Federal Magistrate’s decision in the light of the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. As Counsel points out, in this case the Tribunal’s finding relied on inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing. However, these inconsistencies were brought to the appellant’s attention during the Tribunal hearing and he confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application and the supporting statement. Thus, all relevant information relied on by the Tribunal, as distinct from its reasoning processes, which did not involve reference to other factual material of substance, appears to be information that the appellant gave to the Tribunal for the purpose of the application to the Tribunal. That is to say, s 424A of the Act would not apply because any possible information falls within the purview of subs (3)(b) as being information ‘that the applicant gave for the purpose of the application’.”
To the extent therefore that the Tribunal’s observation that the claims in the protection visa application and application for review are “vastly different” to what was put at the hearing, it is clear that the Tribunal did not rely on what was actually put in the protection visa application, but sought confirmation of the applicant’s claims at the hearing before it and rejected the application based on what the applicant said at the hearing before it. To the extent that the Tribunal noted the earlier “version” and sought explanation from the applicant as to why he had not raised the “second version” before, the Tribunal clearly pointed this inconsistency out to the applicant at the hearing and the applicant clearly restated his claims. It must be emphasised that in any event there was not much to restate. The claims in the protection visa application were no more than a few lines and at best a general reference to some sort of political issue. To the extent therefore that it noted the inconsistency, this was not information for the purpose of s.424A(1) of the Act and the “version” dealt with by the Tribunal was what the applicant had said at the hearing before the Tribunal and that was information provided by the applicant to the Tribunal for the purpose of the application and therefore came within the exception in s.424A(3)(b) from the requirements set out in s.424A of the Act. Nor did the Tribunal fail to deal with a claim (to the extent that the “political” reference in the protection visa is a claim) because it clearly sought confirmation from the applicant at the hearing as to what this earlier claim was. Whether it properly understood what the applicant said is dealt with below.
The second issue requiring further consideration therefore is whether the Tribunal properly understood the claim. In its decision record at CB 75.3 the Tribunal's summarised the applicant's claim as being that the applicant was a member of a political “party” and for that reason he was unsafe. The applicant's claims originally, as I have already stated, were very briefly set out in three handwritten lines put in his application for a protection visa reproduced at CB 16. It appears that the Tribunal read the word following “political” in the first line, as “party”. The Minister’s delegate read this word as being “trouble” (see CB 34.7). The delegate sets out as the ground that it understood the applicant was putting forward as being:
“The essential and significant reason that the applicant claims fearing persecution is political trouble.”
The transcript of the hearing with the Tribunal shows at T5.2 that the Tribunal asked the applicant:
“Yes I'll just leave the passport there so you don’t forget it. And let's have a look, you say in both your files, your application that you've been a member of a political party and for that reason you are unsafe.”
The applicant's answer “Yes” certainly provides the foundation for the Tribunal's recording in its decision record that the applicant claimed that he was a member of a political party and for that reason he was unsafe. At the hearing before me, the applicant claimed that what he really meant by his statement in his application was that he had a “political problem” and that when the Tribunal asked him at the hearing to confirm that he had been a member of a “political party”, he replied “yes” because what he meant was that he had been a member of a “former political party not the present political party”. He explained that what he meant by “present political party” was that these were the people who were persecuting him. It is difficult to accept this explanation given that the Transcript reveals that the Tribunal clearly said to the applicant that in his application he had said that he was a member of a political party. Given that the applicant had not put anything else in the application or indeed anything of substance in the application to the Tribunal it is difficult to accept that he had misunderstood the Tribunal. If the word is not “party” but “problem”, then clearly the applicant's answer to the Tribunal, which he does not challenge as being inaccurately transcribed, does not make sense. But in any event, whatever the word, whether “problem”, “trouble” or “party”, in all the circumstances the Tribunal was entitled to rely on the applicant's answer to its question at the hearing that it conducted with the applicant. The applicant clearly stated that he had said in his application that he had been a member of a political “party”. This provides sufficient foundation for the Tribunal's understanding of the applicant's claim as set out in its decision record.
But notwithstanding the above, and even if there is any doubt about what was originally written, it is also quite clear that the Tribunal looked at the applicant's claims as put, and confirmed, by the applicant at the hearing before Tribunal. The Tribunal variously described it as the applicant's latest version or the “second version of events” independently of what it saw as the “vastly different” version, the Tribunal dealt with the latest, comprehensive version on its own merits and made findings on this set of claims, which in the circumstances of the material before me, clearly were the latest totality of claims that the applicant put before the Tribunal. In relation to these claims, the Tribunal’s findings are:
1)That in relation to the claim that he was detained twice because of his alleged association with and filming of Sri Lankan militants, this was not supported by any detail or information (CB 78.3).
2)The claim that he was wanted by Indian police because of this association was not supported by any information presented by the applicant, and that independent country information indicated that it would be very difficult for the applicant to depart India if he was wanted by the authorities (CB 78.4).
3)The Tribunal also noted that there was great doubt over the veracity of the applicant's claims based on the applicant's ability to depart and re-enter India on a number of occasions during the relevant period. In this regard the Tribunal accepted independent country information over the applicant's claims (CB 78.5).
4)The Tribunal found as not credible the applicant's claim that a policeman would demand money and then allow him to relay LTTE videos (CB 78.9).
5)The Tribunal also expressed some surprise that the applicant would have the Tribunal believe that he had no control over his own activities and was at the “beck and call” of the police and the Sri Lankan militants (CB 78.9).
6)In relation to the substance of his claims the Tribunal found that the two claimed periods of detention by the Indian authorities and the threats by the Sri Lankan militants themselves were not supported by any evidence brought forward by the applicant. The Tribunal further found that this was so despite the fact that he had ten months since the filing of his application to obtain information from overseas (CB 79.2).
7)Nor, the Tribunal found, despite the additional time provided to the applicant, was the applicant able to provide this information beyond the “bills and letter” (see CB 63 to CB 65) and that nothing had been provided as to his ownership of his claimed company “Star TV Waves” or anything to indicate that he was wanted by the authorities. The Tribunal found that these periods of detention, and threats by the LTTE, did not happen (CB 79.3).
8)The Tribunal did not accept that the applicant's application was based on fact and it gave as the reasons the paucity of information before the Tribunal, the lack of detail, and country information which was contrary to the circumstances presented by the applicant. It referred to the “vague”, “non-responsive” and “unlikely” answers given to the Tribunal at the hearing that it conducted with the applicant (CB 79.5).
It is clear that while the Tribunal did not accept the applicant's claims as being “genuine” (CB 79.6), its findings in this regard are not dependent on what the applicant may or may not have claimed in his application for protection visa, or the prior finding of “vast differences” between his claims or even that the claims were not made at an earlier time. In this regard the Tribunal did look at the totality of the applicant's claims as presented at the hearing before the Tribunal, and there is nothing before me to show that the Tribunal did not address each of the applicant's claims. In particular, I note that the issue of “political party” if indeed this was a misunderstanding on the part of the Tribunal, was not an issue in addressing the applicant’s claims as finally presented in a complete (although albeit as the Tribunal found “vague” and “lacking in detail”) form at the hearing before the Tribunal. It is clear that the Tribunal looked at all of the claims and rejected them for reasons that were open to it on the material before it and it gave reasons. The Tribunal's decision is not affected by jurisdictional error. The application is dismissed.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 16 November 2005
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