SZDAP v Minister for Immigration - [2006] FMCA 904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDAP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 904

MIGRATION – Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness or failure to comply with s.424A of the Migration Act.

Migration Act 1958, ss.422B, 424A, 441A

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner for Australian Capital Territory v Alphaone (1994) FCR 573
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBJW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1356
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZDAP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:	SYG760 of 2004
Judgment of:	Barnes FM

Hearing date:

22 May 2006

Delivered at:

Sydney

Delivered on:

28 June 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms L. Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG760 of 2004

SZDAP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 June 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia in May 1999 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing which was conducted over two dates.
In his protection visa application the applicant claimed to fear “prosecution” (sic) by the Indian authorities. In an accompanying statutory declaration he claimed that he and his family were Sikhs and that his father had joined the Khalistan freedom movement and had been an active member of the Khalistan Commando Force (the KCF).
The applicant claimed that he became a member of the Sikh Students Federation and started helping the commandos while a student. He claimed that his uncle was assassinated by Punjabi police in 1986, that his father was arrested in 1992 but released after payment of a bribe, re-arrested in 1994 and killed by the police. The applicant claimed that after his father’s death the police continued to harass the family, that he was questioned on numerous occasions and that a fear of police torture forced him to run away. His application was rejected.
In his application for review the applicant disagreed with the delegate’s decision, asserting that he was in danger from the Indian authorities and police and “If I go to my country I will be prosecuted there as I have stated in my declaration to the department …”.
The applicant attended a Tribunal hearing on 19 February 2001 which was continued on 21 March 2001. It is apparent from the Tribunal reasons for decision that during the Tribunal hearings the applicant elaborated on his claims. He claimed to fear persecution by the Indian police or security authorities for reasons of his Sikh religion, his race, political opinion or imputed political opinion. As the Tribunal stated in its reasons for decision he claimed that “his long association with the Sikh movement and militant Sikhs, and that of his family, and their active support for the KCF and the SSF [had] caused the police to murder his father and an uncle. He [claimed] the police were after him to harm him and he was on the run from them in India from [the] time of the death of his father in 1994 until his departure from India in May 1997”. In particular he claimed that after his father’s death he had hidden in various places in India to avoid the police and that he had been questioned by the police on many occasions. He claimed that he was arrested on one occasion in 1996, detained for an hour or two and released when his uncle paid the police a bribe. He claimed that during his detention the police told him that they had killed his father and that they would kill him. He also claimed to be a member of the KCF and a trained soldier and that he had been to various places with the KCF making speeches about freedom, helping to carry weapons and performing labouring jobs. He claimed that he obtained his passport by paying another person to obtain it for him because he feared the police would ask about the passport and where he wanted to go. He claimed that he was able to leave the country on a passport in his own name because once one had a visa there was no problem. He also claimed that he could not relocate within India because the Punjabi police would know where he was and try to kill him and a person could not disappear in India. The Tribunal recorded that the applicant did not know whether his wife was being harassed by the police even though he was in contact with her.
After the Tribunal hearings the applicant provided the Tribunal with documents in support of his case. He provided four documents. The first was a letter dated 27 April 2001 addressed to him from R.S. Grewal, an advocate in Jalandhar, India in which the writer stated that the applicant’s parents (sic) had approached him and that the applicant’s “father also informed me that with him along with your brother were arrested” (sic), that they were detained in illegal custody for some days and that the police had made enquiries as to the whereabouts of the applicant. The letter also stated that a criminal case of 1998 had been registered against the applicant in the police station and a warrant of arrest issued. It advised the applicant not to return to India. The second document provided was a document headed Warrant of Arrest referring to a case of 1998 but dated 19 April 2001. The third document was an affidavit dated 10 May 2001 which stated that the person swearing the affidavit was the father of the applicant who was residing in Australia, that the applicant had been arrested and detained in 1998, that “some criminal cases” were pending against him and that a warrant of arrest had been issued. The final document was a further supporting affidavit dated 10 May 2001 provided by a named person who stated that he knew the family members of the applicant’s father, that the applicant was the son of the person named in the other affidavit, that the applicant “along with his father was arrested by the police of Punjab and detaining in illegal custody for some days” and that “some criminal cases” were pending against the applicant.
The Tribunal was not satisfied that the applicant was at risk of persecution by Indian police or security authorities. It was satisfied that he was not credible in respect of key aspects of his claims. Hence it concluded that he was not in genuine fear of persecution and that there was not a real chance he would suffer persecution on return to India. The Tribunal found that the applicant was not impressive as a witness and stated:
He gave inconsistent and unconvincing evidence (at pages five to twelve above) on key aspects of his claims. The Tribunal considered the Applicant readily resorted without justification to blaming a poor memory, trauma, the poor English of a friend who filled out his applications, or other reasons, to explain inconsistencies in his evidence or other unsatisfactory aspects in the presentation of his claims. He showed no conviction in the truth of what he told the Tribunal. Much of his evidence was implausible and unconvincing.
The Tribunal also found the applicant’s claim that he was of any interest to the Indian police or security agencies and on the run from 1994 (except for being apprehended once and almost immediately released on payment of a bribe) to be “most implausible”. It referred to independent country information indicating that the Sikh militant movement was no longer active in the Punjab, that the Punjab had begun to improve after the 1992 election, that Sikhs do not constitute a persecuted group at the present time and that rank and file members of the groups that were at one time targeted (such as the All India Sikh Students Federation) are “in general terms safe”. It also referred to 1998 advice from the Department of Foreign Affairs and Trade that it was “not aware of any politically active Sikhs at risk of political persecution” in the Punjab or in India as a whole.
The Tribunal also considered it implausible that a warrant of arrest such as that provided after the hearing, would only issue from the Indian police in April 2001 nearly two years after the applicant departed India for Australia, in respect of matters that were claimed to have occurred in 1994. The Tribunal noted that there had been no prior mention to the Tribunal of an outstanding warrant of arrest against the applicant. Rather the applicant had stated at the hearing that he knew nothing of a warrant of arrest being issued and that he had been able to depart India without difficulties. The Tribunal found that had the applicant been of any interest to the police it would have expected on the country information that a warrant of arrest would have issued against him some years ago and that he would have experienced some difficulty leaving the country. It found the applicant’s evidence at the hearing regarding the possibility of his name being on a blacklist and the ease with which he left the country not to be convincing.

The Tribunal continued:
In the light of the country information above regarding the apparently low risk of political persecution for Sikhs in the Punjab today, the Tribunal’s adverse credibility findings against the Applicant and the serious inconsistencies between the correspondence of Mr R.S. Grewal, Advocate, and the attached affidavits and the evidence of the Applicant, the Tribunal rejects this material as fabricated to assist the Applicant’s claims. The letter dated 27 April 2001 from Mr Grewal states that the Applicant’s parents advised him that the Applicant was living in Australia and that the Applicant’s father informed him of certain other things, including that a warrant of arrest had issued for the Applicant. In view of the Applicant’s evidence before the Tribunal that the Indian police killed his father in 1994, the Tribunal places no weight on this document or the document purporting to be a warrant of arrest. The affidavit sworn by [named person A] states that the Applicant “along with his father was arrested by the police of Punjab and detained in illegal custody for some days …” This account differs substantially from that of the Applicant in evidence before the Tribunal. He states his father died two years before the Applicant was detained by the police in 1996 and his detention was for a few hours not days. The Tribunal also places no weight on this document. The Tribunal also places no weight at all on the affidavit sworn on 10 May 2001 by [named person B], a man who states that the Applicant is his son and that his son was arrested in 1998 by the police and detained for some days with himself. As indicated above, the Applicant testified that his father was killed in 1994. In the circumstances, the Tribunal rejects the contents of this document as thoroughly unreliable. As with Mr Grewal, [person B] mentions that the Applicant faces criminal charges in the Jalandhar Court. The Tribunal does not accept on the evidence that any Indian police interest in the Applicant, if there is any interest, is Convention related.
The Tribunal also found that the applicant had manufactured his evidence on central aspects of his claims as he gave answers to the Tribunal’s questions. It found that his oral evidence was “most unsatisfactory” in respect of details of his claims about his treatment by the police, that it was “seriously internally inconsistent and unconvincing” in relation to “whether the police ever questioned him, how many times they did so, whether he was arrested, whether the police had ever beaten him, how and why he came to be released, whether his father, who was one of the alleged initial causes for the police interest in the family, was bailed after bribery after detention”. The Tribunal observed that the applicant was confused about when his father was detained and was “most unconvincing and confused” in describing his involvement with the SSF and the KCF. The Tribunal found on the evidence that neither the applicant nor his family were actively involved in the Sikh Khalistan movement with the KCF or the SSF. It was not satisfied on the evidence that the applicant was at risk of persecution by the Indian police for being a Sikh or for any actual or perceived political or militant role, or support role, with those organisations.
The Tribunal concluded by stating that it found the applicant to be a completely unreliable witness in relation to all the core aspects of his claims, that he had “not given coherent, consistent or convincing evidence” that he had suffered discrimination, harassment or threat of harm as a Sikh amounting to persecution for a Convention reason. It was not satisfied that there was a real chance that he would face persecution on return to India whether he returned to his home state or chose to live elsewhere in India. Nor was it satisfied that it had been told the truth about why the applicant left India and what he feared about returning there. It did not accept that he was at risk of persecution for reason of his religion or actual or imputed political opinion. It was not satisfied that the applicant genuinely feared persecution or that he had a well-founded fear of persecution on his return to India.
The applicant sought review by application filed in this Court. He relies on an amended application filed on 29 September 2004 which contains one ground of review with two particulars. It is contended generally that the Tribunal decision “was effected (sic) to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa”. As expressed this ground does not establish a jurisdictional error. The first particular however is that the Tribunal “to consider” (and I take this to be a contention that the Tribunal should have considered) “in assessing the chance of the applicant being persecuted on my return to India based on the fact he was associate with Khalistan revolation (sic) in Punjab India”.
This appears to be a claim that the Tribunal failed to consider the applicant’s claim by reference to his association with the Khalistan revolution or movement in the Punjab. However the Tribunal did consider but rejected this aspect of the applicant’s claims, finding that neither the applicant nor his family were actively involved in the Sikh Khalistan movement with the KCF or the SSF and more generally that it was not satisfied that the applicant was at risk of persecution by the Indian police for not being a Sikh or for any actual or perceived political or militant role or support role with those organisations. The Tribunal’s conclusions in this respect were based on its findings in relation to the applicant’s credibility. Credibility is a matter for the Tribunal par excellence and the Tribunal’s findings were open to it on the material before it for the reasons that it gave. No jurisdictional error is established on this basis.
The second particular relied on in the amended application is that the Tribunal’s satisfaction that the applicant was not a refugee was “not based upon reasoning which provided a rational or logical foundation for this belief”. There is however nothing pointed to or apparent in the Tribunal’s reasons for decision which suggests that there is a lack of a rational or logical foundation for the Tribunal’s decision let alone circumstances which constitute jurisdictional error (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 356; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 and NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264). The Tribunal decision is comprehensive. The reasons address all of the aspects of the applicant’s claims and set out in some detail the Tribunal’s reasons for its findings. No lack of logic or rationality is apparent, let alone a lack of logic or rationality such as to evidence a jurisdictional error.
The applicant filed no written submissions in relation to his application and told the Court that he had nothing to say as to how the Tribunal made a jurisdictional error. Nonetheless, counsel for the Minister raised two matters in written submissions as warranting the Court’s consideration on the material before it. It was contended that while these matters were raised, nonetheless no jurisdictional error was apparent.
The first of these matters is the question of whether there was any lack of procedural fairness in relation to the documents provided by the applicant to the Tribunal after the second Tribunal hearing in light of the Tribunal’s findings in relation to those documents. It is not disputed that the Tribunal did not put to the applicant any concerns about the genuineness of the documents submitted by him after the Tribunal hearing.
First it was contended, and I agree, that there was no requirement to comply with s.424A of the Act in relation to the documents as they fell within the exception provided by s.424A(3)(b) having been provided to the Tribunal by the applicant.
It was next contended generally that despite the fact that s.422B was not in operation at the time of the application to the Tribunal in this instance, because the Migration Act 1958 (Cth) (the Act) specifically dealt with natural justice requirements in relation to material provided by an applicant (in s.424A) there was no room to import any common law requirements in this context. However this submission is contrary to the clear line of authority applying principles of natural justice in circumstances prior to the operation of s.422B. (See WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [36] – [40].)
More specifically however, the respondent contended that in this case there was no denial of procedural fairness because, as French J observed in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36]:
Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the special proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.
It was contended that in this case the Tribunal made adverse credibility findings against the applicant on the basis of the claims he had made at the hearings and independently of the documents provided by him to the Tribunal. Thus it was submitted that the authenticity of the documents was not a critical step in the reasoning of the Tribunal and that any failure by the Tribunal to put its views about the documents to the applicant could not have operated to deprive him of procedural fairness.

There are a number of decisions of the Federal Court relevant to the determination of this issue. In WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 the Full Court of the Federal Court considered a finding by the Tribunal that documents submitted in support of the applicant’s case were not genuine. The Court stated:
53.    In the present case and in Meadows [and Minister for Immigration & Multicultural & Indigenous Affairs (1998) 90 FCR 370] the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a serious offence.
54.    Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries it is likewise inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion an opportunity of dealing with it.
55.    Nothing in our minds turn here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be appraised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.
In that case the appellant had indicated at the conclusion of a Tribunal hearing (after the Tribunal indicated that it was unlikely to accept certain claims) that he could provide documentary material to support his claims. The letters he then provided were regarded as central to the applicant’s claim. The question was whether the Tribunal was entitled to reject a document which “on its face” was genuine without giving the appellant an opportunity to comment on the genuineness of the document or to call evidence supporting its genuineness (ibid at [42]). The Full Court found that the Tribunal had denied the applicant procedural fairness. I note that the Full Court suggested in WACO at [41] that it would not always involve an error of law “for the Tribunal to reject corroborative evidence on the basis of its view of an appellant’s credit: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49].”
It is also relevant to have regard to WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597. In WAEJ the Full Court of the Federal Court considered an argument that there had been a breach of the rules of natural justice in the failure of the Tribunal to give the appellant the opportunity to deal with concerns regarding the genuineness of an email submitted by him in support of his application. The Tribunal had held that, having regard to the unsatisfactory nature of the appellant’s evidence and the timing of the document provided, it was not satisfied as to its “genuineness”. The Court found that on its face this was a statement by the Tribunal that the document was not authentic, but noted that:
This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant arranged for the preparation, and tender of, a non-authentic, or forged, document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.
The Court expressed the view at [54] that “If, in truth, the Tribunal did not believe the document was authentic it should have put this to the appellant for comment.” It continued:
55. Alternatively, perhaps the RRT was not using the word “genuineness” in the sense of lack of authenticity in the document. To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by the RRT unsupported by a scintilla of material. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion. (See: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [42]). If that were so the RRT would not have performed the duty imposed upon it by the Act and the purported decision would be set aside as one made in the absence of authority or jurisdiction.
56. If, however, the RRT used the word “genuineness” in a loose sense intending to convey not that the document was a forgery but that the weight to be given to the content of the document provided no support to the “genuineness” of the appellant’s claim as to his degree of connection or involvement with Farahanipour, or the Marz-e-Porgohar, then perhaps that was a conclusion available to the RRT, notwithstanding the inappropriate or infelicitous expression of that conclusion.
Considering the reasons of the Tribunal in its entirety the Court accepted the latter construction.
In WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 French J expressed the views relied upon by the respondent that corroborative evidence may be rejected as of no weight if dependent upon and undermined by findings as to the applicant’s credibility (at [36]). However his Honour also went on to state at [36]:
But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility.
In WAGU his Honour referred to the fact that the Tribunal found that in essence that the appellant had been involved in some kind of conspiracy with others to fabricate information about his claims. French J had regard to the fact that this approach was not something supported by evidence before the Tribunal or that flowed naturally from adverse findings as to the appellant’s credibility. The findings in relation to the fraudulent arrangement were said to be unsupported by any evidence. It was also relevant that this conclusion provided a basis for rejection of the document so that it did not have to be taken into account in the assessment of the appellant’s credibility. In those circumstances his Honour found that the Tribunal had failed to accord procedural fairness to the appellant by failing to put to him its suspicions about the way the email came into existence. French J was reinforced in his conclusions by the approaches taken in WACO and WAEJ.
Finally in WAKKv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 the Full Court of the Federal Court considered an argument that the appellant had been denied procedural fairness in that the Tribunal had failed to put to him that it had doubts as to the authenticity of a document he had submitted to corroborate his claim. The Court referred to the suggestion in S20/2002 by McHugh and Gummow JJ at [49] that a party’s credibility may be so weakened that the Tribunal may treat what is proffered as corroborative evidence “as of no weight because the well has been poisoned beyond redemption”.
In the particular circumstances of WAKK the Court was of the view that the primary judge had not erred in deciding that there was no failure to accord procedural fairness in relation to a letter which the Tribunal dealt with as a piece of evidence to be weighed with other evidence. Their Honours stated at [70]:
It is apparent that the Tribunal, whilst making no positive finding that the letter was not genuine, accorded the letter no weight, in reaching its final conclusion that on the evidence the appellant did not have a well-founded fear of persecution if he was returned to Burma. This conclusion reflected the findings which the Tribunal had made, independently of the letter, which were based on serious credibility problems with the claims made by the appellant for which the letter was relied upon as corroboration. The approach which the Tribunal took was consistent with the observations referred to above by McHugh and Gummow JJ in the case of S20/2002 and French J in WAGU. This approach was not irrational or unfair.
71. Further, as the primary judge said, there was no positive finding by the Tribunal that the letter was a forgery and so there was no requirement on that basis to warn the appellant of the possibility of that finding in order to accord the appellant procedural fairness.
It is important however to have regard to the precise factual circumstances of the particular case (see the discussion of the authorities in WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at [60] – [64] per Carr and Tamberlin J). In the present case the Tribunal gave no weight to particular aspects of each of the documents put before it by the applicant after the hearing because of inconsistencies between what was contended for in the documents and the applicant’s oral evidence. The documents did not simply substantiate claims of the applicant that had already been made. On the contrary they were in some respect inconsistent with his claims. As the Tribunal observed, in the applicant’s oral evidence he stated that his father was dead and that he had been killed in 1994 which was two years before the applicant claimed to have been detained (in 1996 for a few hours). Yet the documents included and referred to an affidavit sworn in 2001, purportedly by the applicant’s father and one claimed the applicant and his father were arrested and detained together. In one respect the documents made fresh claims. The applicant had told the Tribunal that he knew nothing about a warrant of arrest being issued. The copy of the document described as a warrant of arrest was dated 19 April 2001, which was after the second Tribunal hearing, made a fresh claim that a warrant of arrest had been issued (in addition to the earlier oral claims of the applicant that the police were looking for him and if they found him he would be in trouble).
In circumstances where the claims made in documents provided to the Tribunal by the applicant were inconsistent with the other evidence of the applicant in major respects and where such serious inconsistencies were the basis for the Tribunal giving no weight to the documentary evidence, these matters did not have to be put to the applicant as part of the Tribunal’s obligations of procedural fairness. The weight to be given to particular items of evidence is a matter for the Tribunal and the Tribunal was not obliged to put its thought processes or reasoning to the applicant in relation to such inconsistencies. It cannot be said that the Tribunal’s conclusions in relation to the weight to be given to documents making such inconsistent claims would not “obviously be open on the known material” (See Commissioner for Australian Capital Territory v Alphaone (1994) FCR 573 at 591 – 592). These findings were, in fact, sufficient to address the documents provided by the applicant. In this sense, the Tribunal’s view that the documents were fabricated to assist the applicant’s claims was not the basis for its decision.
More generally, reading the Tribunal reasons for decision fairly and as a whole, it is clear that the Tribunal made adverse credibility findings against the applicant on the basis of the claims he made at the hearings and independently of the documents he later provided. This is not a case in which the authenticity (or lack thereof) of the documents was a critical step in the reasoning of the Tribunal in relation to the claims of the applicant. (Also see SZBJW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1356 where in similar circumstances (where the Tribunal made a finding as to the lack of the genuineness of police documents provided a month after the hearing) Jacobson J pointed out at [44] that “the relevant principle is that there is an obligation of procedural fairness where the genuineness of the documents is critical to a finding of credibility”.).
Insofar as the documents made fresh claims, what was critical was that the Tribunal gave such documents no weight. It is the case that the Tribunal also rejected the material as fabricated to assist the applicant’s claims. However again this finding was not of itself the basis for rejection of the documents, either as corroboration or as evidencing fresh claims (cf WAGU at [36]). On the contrary, the Tribunal had already made an adverse credibility finding about the applicant. That finding and also the inconsistencies between the documents and the applicant’s oral claims as well as country information about the situation in the Punjab was the basis for the finding of fabrication. Such a finding was open to the Tribunal on the evidence before it. The Tribunal finding was not based simply on the appearance of the documents (cf WAJR at [56]). Nor was it based on independent information about document fraud which it may have been necessary to put to the applicant. Contrary to the situation considered in WACO and WAEJ there was evidence to support the Tribunal’s finding in this respect. It was not a “bare assertion” of fabrication (cf WAEJ at [55]). As in WAHP at [59], as the Tribunal had made an assessment that the evidence was not to be relied on, it was a “logical conclusion” that the documents were fabricated.
In all the circumstances I am not satisfied that the Tribunal denied the applicant procedural fairness by failing to put to him for comment its views on the documents he submitted.
The other issue addressed in the submissions of counsel for the respondent is described as the “SZEEU issue”. It was recognised that a question arose as to whether there was a breach of s.424A of the Migration Act 1958 (Cth) because there were references in the decision of the Tribunal to inconsistencies between the applicant’s oral claims and the claims in the protection visa application. It was acknowledged for the respondent that it could be argued that the inconsistencies were information that were part of the reason for affirming the decision under review and that if so that would have required the Tribunal to furnish the applicant with a s.424A(1) notice in writing (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2).
However it was contended for the respondent that this was not a case in which inconsistent information was a part of the reason for affirming the decision under review. Rather, as was said to be clear from the way in which the Tribunal reasoned that its reason for finding the applicant to be a witness totally lacking in credibility was due to the way in which the case was presented by him at the Tribunal hearing. It was suggested that the words of Allsop J in SZEEU at [216] were pertinent. His Honour stated:
One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involve “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason).
The Tribunal’s reference to inconsistencies in issue is its statement, after finding that the applicant was not an impressive witness, that he gave “inconsistent and unconvincing evidence” (which was described as appearing at pages 5 to 12 of the reasons for decision) “on key aspects of his claims”. The Tribunal rejected the applicant’s explanation for inconsistencies in his evidence or other unsatisfactory aspects in the presentation of his claims. The Tribunal then dealt separately with implausibilities in the applicant’s claims at the Tribunal hearing and thereafter.
The respondent contended that in referring to inconsistencies in the findings and reasons part of its decision the Tribunal was really directing itself to the events that took place at the hearing rather than focusing on inconsistencies between the information contained in the protection visa application and information given by the applicant at the hearing. It was suggested that the Tribunal’s description of the applicant as an unimpressive witness indicated that the reference to his inconsistent and unconvincing evidence was a reference to what occurred in the course of the two Tribunal hearings.
It is necessary to have regard to the Tribunal summary of what occurred in the Tribunal hearings to identify the inconsistencies in issue (identified at pages 5 to 12 of the reasons for decision) and to determine whether or not they are matters to which s.424A(1) applies. First, in describing what occurred in the Tribunal hearings the Tribunal referred to a discussion of incorrect details in the protection visa application (as to the applicant’s date of marriage, the fact that his mother was alive but was not mentioned in the form and that he had three brothers and two sisters not mentioned in the form and a son born after his departure from India). The applicant claimed that he must have forgotten to mention his siblings and that a friend whose English was not good helped fill out the form.
The respondent contended that it was relevant that no negative remarks were made about this evidence by the Tribunal in outlining the inconsistency. However, while the applicant’s evidence about his mother, siblings and son can be described as inconsistent, in the findings and reasons part of the decision the Tribunal referred to inconsistencies in “key aspects of [the applicant’s] claims”. These particular inconsistencies in issue did not relate to “key aspects of [the applicant’s] claims” and hence formed no part of the reason for affirming the decision under review insofar as that reasoning was based on inconsistencies in key aspects of his claims. Thus the fact of these particular inconsistencies was not information which was the reason or part of the reason for affirming the decision under review. While the applicant’s evidence about his family composition in his protection visa application can be seen as part of the “unsatisfactory aspects in the presentation” of the applicant’s claims (which was relevant to the Tribunal’s reasoning process), the Tribunal’s appraisal of the applicant’s evidence as unconvincing or unsatisfactory is not “information” subject to the s.424A(1) obligations. Hence s.424A(1) does not apply in relation to this aspect of the Tribunal decision.
Secondly the Tribunal recorded that at the hearing it asked the applicant about the inconsistency between his testimony at the hearing and in the statutory declaration of 22 June 1999 provided with his protection visa application regarding the number of times he was questioned by the police. It was contended for the respondent that in so doing the Tribunal was not really pointing out an inconsistency but clarifying what in fact the applicant said and what his ultimate position was in relation to that issue.

The Tribunal reasons for decision are the only evidence before the Court of what occurred in the hearings. The Tribunal recorded that in the first hearing, after the applicant had told it that he had only been questioned on one occasion, the Tribunal asked him whether the statement in his statutory declaration (that he was questioned on many occasions) was correct. He reiterated that he was captured once and questioned once and stated that his friend (who filled in the form) made a mistake because his English was not good. The Tribunal recorded that at the second hearing it again asked the applicant about the inconsistency between his testimony and his statutory declaration about the number of times he was questioned by the police. While this part of the record of what occurred at the Tribunal hearing occurred after the Tribunal raised with the applicant discrepancies between what he suggested at the first hearing and what he suggested at the second hearing, it clearly addressed an inconsistency between his oral testimony and the statutory declaration. The Tribunal did seek clarification, but that was after the applicant was recorded as giving an answer which did not explain the inconsistency or provide any clarification. Hence in this respect there can be seen to be a reference to inconsistencies which relate to key aspects of the applicant’s claims in this part of the Tribunal reasons for decision.
In addition, after the applicant claimed that the police arrested his father two or three times, the Tribunal reminded him of his statutory declaration which stated that his father was arrested in 1992 but released on bail after an uncle paid a large amount of money. The applicant then agreed that there was only one occasion on which his father was released and bailed. The Tribunal recorded that it asked the applicant why he was changing his account and that the applicant stated that his mind was not working and was disturbed. Again this is an inconsistency between the statutory declaration provided with the protection visa application and the information provided to the Tribunal at the hearing which relates to key aspects of the applicant’s claims.
These inconsistencies between the statutory declaration and oral evidence of the applicant are information within s.424A(1). The Tribunal relied on the fact of such inconsistencies in finding that the applicant was not an impressive witness. In turn this was part of the reason for rejecting his credibility (as well as its appraisal of his evidence as unconvincing and the internal inconsistencies in the oral information he provided to the Tribunal). The inconsistencies in the applicant’s claims are, consistent with the approach taken in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, matters to which the obligation in s.424A(1) of the Migration Act would apply.
However, s.424A(3)(b) provides that s.424A does not apply to information that the applicant gave for the purpose of the application. It is necessary to consider whether the applicant gave the information in the statutory declaration annexed to his protection visa application to the Tribunal.
In his review application of 18 August 1999 the applicant stated the following under the heading “Your reasons for making this application”:
I am disagree with the department’s decision because I have really danger from Indian authorities and police so I can’t go back to my home country. If I go to my country I will be prosecuted (sic) there as I have stated in my declaration to the department but immigration rejected my case but I want the review of my case.
The issue of republication of information was discussed in some detail by Rares J in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435. His Honour rejected the view that the delegate’s decision and everything the delegate referred to in his decision was given to the Tribunal by the applicant by applying for review (see [30] – [35]) consistent with what had been held in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 at [36]. Rares J suggested (at [36]) that the question of whether there had been a republication to the Tribunal of information given to the Department should be determined by “an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood”. However, as Rares J also stated (at [42] and [44]) each case will depend on its own facts.
In this case the applicant clearly adopted and put before the Tribunal his earlier description of the manner in which he claimed to fear persecution in his statutory declaration. He not only referred to a fear of the Indian authorities and the police but stated that he would be “prosecuted”, (the same expression used in his statutory declaration) “as I have stated in my declaration to the department”. A reasonable person in the position of observing what was in the review application would understand the applicant to have been referring not simply to the fact of his fear but also to the reasons for such fear as stated in his statutory declaration. Such an objective reading of the review application indicates that the applicant was “adopting or republishing” (see SZGGT at [50]) what he had said in his statutory declaration about the basis for his fear of prosecution (or persecution) by the authorities – including the claims said by the Tribunal to have been inconsistent with his oral evidence. Hence he gave such information to the Tribunal for the purposes of the review application. The s.424A(3)(b) exception applies and the s.424A(1) obligation does not apply to this information.
These findings make it unnecessary to address the issue of whether the Court should exercise its discretion to refuse relief on the ground of delay. As no jurisdictional error is established the application should be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 June 2006