SZEPV v Minister for Immigration and Multicultural Affairs

[2006] FCA 673

FEDERAL COURT OF AUSTRALIA

SZEPV v Minister for Immigration and Multicultural Affairs [2006] FCA 673

SZEPV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL
NSD 284 OF 2006

COLLIER J
24 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 284 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEPV
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

24 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.A writ of certiorari be directed to quash the decision made by the learned Federal Magistrate on 27 January 2006.

3.A writ of prohibition be directed to the respondent preventing him from giving effect to or acting upon the decision made to refuse the protection visa to the Appellant.

4.An order that a writ of mandamus be issued to the Tribunal compelling it to rehear and re-determine the appellant’s application for review in terms of the criteria laid down in the article 1(A)(2) of the 1951 United Nations Convention on Refugees.

5.First respondent to pay costs of the appellant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 284 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEPV
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	24 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Lloyd-Jones FM of 27 January 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 August 2001.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of India and, in his application for a protection visa, claims to come from a Sikh family and to have become interested in his religion.  He claims he joined the Youth Akali Dal, an organisation run by Khalistani Sikhs.  He claims to have been involved in spreading the religious and political message of the Khalistan Liberation Force and the Khalistan Commando Force and to have attended many organisations, Ghadwaras and religious meetings.  The appellant claimed that Hindu “fascist” groups such as Shiv Sena and Bajrang Dal were opposed to the Sikh community and tried to destroy Sikh programs both by force and using government controlled media.

3. He also claimed that Sikh militants who were wanted by the police came to his local area to seek shelter, and as a result, the police began harassing the appellant and his family.  He claims that he worked as a truck driver in various states in India and on one occasion the police arrested him without a warrant, detained him for 10 days and tortured him mentally and physically.  The appellant says that since he has been in Australia, he has been working with the International Sikh Youth Federation.  The appellant claims that if he returned to India, the Indian Government, along with Shiv Sena, Bajrang Dal and the army and police forces, will kill him.

4. In his written submission to the Tribunal, the appellant said that he disagreed with the delegate’s decision and said that he had not been invited to an interview.  He then made general claims about the “war” being waged by Hindu organisations (including the government) on religious minorities such as Sikhs, Muslims and Christians.

5. At the hearing before the Tribunal, the appellant said that prior to leaving India he lived in Himachal Pradesh for five years and before that he lived in Punjab.  The appellant explained that he moved from Punjab when the police began harassing him because he gave shelter to terrorists and assisted them by transporting them across the border in his truck, including on one occasion when a terrorist was killed by police.  The appellant told the Tribunal he did “home farming” until 1987.  In between 1987 and 1995 he did both agriculture and truck driving and from 1995 he was a truck driver.  The Tribunal pointed out during the hearing that the appellant had not mentioned transporting terrorists in his “written submission”.  The appellant claimed that the terrorists forced him to work for them.

6. The Tribunal did not find the appellant to be a credible witness, noting that his oral evidence often contradicted itself and was inconsistent with documentary evidence supplied by the appellant to the Tribunal.  The Tribunal noted that the appellant did not tell them of his forced involvement in transporting terrorists in the hearing and then told the Tribunal that all his problems arose from that involvement.  The Tribunal also noted that the appellant’s evidence about when he started having problems was confused, as was his evidence about when he was arrested and the length of time he was detained.

7. The Tribunal noted aspects of three documents the appellant provided to the Tribunal that led it to conclude that the documents did not appear to be genuine.  The Tribunal also noted that the appellant appeared to have little knowledge about the Sikh organisations he claimed to have been involved in.  The Tribunal did not accept any of the appellant’s claims to have suffered persecution in India and did not accept that he was involved in activities that might draw him to the attention of a “potential persecutor”.  The Tribunal accepted that the appellant is a Sikh and that up to the late 1980s Sikhs were at risk of persecution, but concluded on the basis of independent country information that the wholesale persecution of Sikhs ended in 1992 with the result that Sikhs generally are not a persecuted group in India today.

8. Before the Federal Magistrates Court, there were five grounds of review in the appellant’s admitted application.  The first ground was that the Tribunal committed a jurisdictional error in that after it concluded that the appellant was not a credible witness, it failed to consider whether he would suffer persecution if he was required to relocate within India.  The Federal Magistrate held that because the Tribunal had concluded that the appellant was not involved in political activities as he claimed, it was not then possible for there to be an argument that the appellant would suffer serious harm if he was required to relocate within India.

9. The second ground was that the Tribunal’s decision was unreasonable in the Wednesbury sense in deciding that evidence of the appellant’s involvement in the ISYF was not relevant, because the appellant claimed that all his problems arose from his involvement with terrorists.  Lloyd-Jones FM concluded that this aspect of the Tribunal’s decision was not unreasonable in the Wednesbury sense.

10. The third ground of review relied upon by the appellant was that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (“the Act”) because the Tribunal relied on country information and concluded that the appellant was not reliable without giving the appellant an opportunity to rebut this finding. The Federal Magistrate concluded that the country information fell within s 424A(3)(a). Further, his Honour noted that without a transcript of the Tribunal hearing there was no evidence to suggest that the Tribunal had not put this information to the appellant orally.

11. The fourth ground was that the Tribunal had failed to comply with s 430(1)(c) and s 430(1)(d) of the Act. His Honour noted that the Tribunal had set out 17 different reasons why it did not accept the appellant’s claims, and that the appellant was essentially seeking a merits review. Finally, the Federal Magistrate rejected the fifth ground of appeal that the Tribunal was biased, noting that this ground was completely unsupported by evidence and that no submission had been made in respect of it.

12. In the Notice of Appeal filed on 17 February 2006, the appellant appealed against the decision of the learned Federal Magistrate on two grounds.  The first ground of appeal was that the learned Federal Magistrate failed to recognise that the Tribunal committed jurisdictional error in concluding that the appellant was not a credible witness.

13. In his submissions the appellant submitted that the finding of the learned Federal Magistrate in this respect was “... a mere endorsement of the Tribunal’s decision and not the correct assessment of the evidence that the applicant gave the Tribunal during the hearing”.  In support of this ground the appellant has submitted that:

    The Tribunal’s failure to assess the information given by the appellant in the correct perspective amounts to that the Tribunal failed to reach the required satisfaction in determining the appellant’s application for refugee.

14. The second ground of appeal was that the Federal Magistrate was wrong in failing to consider that the Tribunal’s finding was “… definitely materially and factually a wrong assessment of the (appellant’s) claims”.  In support of this ground, the appellant has submitted that the Tribunal, in reaching what the appellant has described as a “unilateral conclusion” meant that the Tribunal has failed to discharge its statutory obligation in its review function.

15. In relation to the first ground of appeal, it is clear that findings of credibility are properly the responsibility of the Tribunal.  As observed by McHugh J in Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at 423.

    In addition the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”.  However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence.  If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.

16. Counsel for the appellant today indicated that the Tribunal had taken an improperly adversarial approach to the appellant’s case, in particular in relation to issues of credibility and the Tribunal’s analysis of the evidence before it.  Counsel for the appellant referred to comments of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at par 1, where their Honours said:

    Proceedings before the Tribunal are not adversarial and issues are not defined by pleadings or by any analogous process.

17. What their Honours said undoubtedly represents the law.  However, in advancing this argument, in my view the appellant has misrepresented the role of the Tribunal and also what their Honours said in Appellant S395/2002.  As pointed out by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 176:

    The main purpose of the Division is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister’s delegate should be affirmed.  The Tribunal is the vehicle through which this purpose is effected.  The Tribunal is empowered to use an inquisitorial process to conduct the review of the decision.  The Division does not provide for an adversarial contest that culminates in a trial of issues joined between parties. (emphasis added)

18. Questioning the applicant and inquiring into the case before it are proper aspects of the inquisitorial role of the Tribunal.  Further, it is clear from the detailed and careful reasons of Lloyd-Jones FM that his Honour did not “merely endorse” the Tribunal’s decision.

19. Accordingly, I dismiss this ground of appeal.

20. In relation to the second ground of appeal, it appears that this is a restatement of the argument made by the appellant before the Tribunal.  The Federal Magistrate dealt with this issue in his judgment, paras 35 and following.  I am unable to identify any deficiency in the reasoning of the learned Federal Magistrate in relation to this issue.

21. The appellant has also submitted general additional legal arguments supporting the grounds raised by the appellant in the notice of appeal.  With respect to the appellant, in my view these arguments may be dealt with quickly.  First, the appellant has submitted that his claims were not considered by the Tribunal “in the manner they were submitted” and that this was a failure to “consider in the light of the basis upon which the application was made”.

22. It is difficult to know exactly what the appellant means by this submission.  In any event, the Tribunal gave detailed findings and reasons; it explained at length why it was not persuaded by the appellant’s case.  There is no evidence, nor has the appellant substantiated, that the Tribunal dealt with the appellant’s case other than is required by law, subject to one point which I will raise shortly in my judgment.

23. Second, the appellant submits that the Tribunal’s attitude towards his claims was somewhat adversarial “against the principles enunciated by Gleeson CJ in S395/2002 v MIMIA (2003) 203 ALR 112 at 114”. I have already dealt with this point earlier in my judgment. Further, there is no claim before me that the Tribunal has acted in such a way as to raise issues of either apprehended or actual bias. I repeat that in using an inquisitorial process the Tribunal is properly fulfilling its obligations and statutory function. Doing so does not indicate an inappropriate attitude of the Tribunal towards either the appellant or his case.

24. Third, the appellant has submitted that the Tribunal fell into jurisdictional error in not giving reasons for its views that the appellant was not a credible witness.  I have already dealt with that issue in my judgment.

25. However, during the hearing this morning the Minister quite properly directed the Court’s attention to aspects of the Tribunal’s decision which are cause for concern.  These aspects of the Tribunal’s decision were not raised before Lloyd-Jones FM.  Specifically, in the “Findings and Reasons” of the Tribunal, the Tribunal made the following observations.

26. In para 1 the Tribunal said:

    The applicant told the Tribunal that he was forced by terrorists to transport members of a terrorist group around the Punjab and neighbouring states.  He told the Tribunal that all of his problems arose from this situation.  However, the applicant had never previously made this claim.

27. In para 8 the Tribunal said:

    On several occasions during the first half of the Tribunal hearing the applicant stated and again confirmed that the only problems he had in India were that he was allegedly being forced to transport terrorists in his truck.  It was only later when the Tribunal reminded the applicant of things he had stated in his written submissions that he changed his evidence to include other claims.

28. Counsel for the Minister submitted that logically these observations meant that the Tribunal must have taken into account material from elsewhere, without directing the appellant’s attention to that material as required by s 424A Migration Act and the decision of the High Court in SAAP.

29. It therefore follows that the appropriate orders of this Court are to grant the orders sought by the appellant and allow the appeal.

30. Nonetheless the Minister has asked the Court to exercise its discretion to refuse the relief which the appellant has sought on the basis of the appellant’s delay in bringing the case from the Tribunal to the Federal Magistrates Court.  In particular, the Minister directs my attention to comments of members of the High Court in SAAP.  McHugh J said at 215 ALR pp 183-184:

    The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced and the invalidity of the decision or does not come with clean hands.

31. Further, Hayne J said at 215 ALR p 212:

    For the reasons given earlier the decision reached by the Tribunal is invalid.  There is no basis in this case it was the undoubted discretion to refuse relief sought should be exercised against this grant.  There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants that stand in their way.

32. The issue of delay in bringing the matter before the learned Federal Magistrate has not been explained. The Minister has directed the Court’s attention to a three year delay between the decision of the Tribunal on 15 August 2001 and the filing by the appellant of an application for review under s 39B Judiciary Act 1903 on 26 October 2004.

33. The Minister prepared a notice of objection to competency on the grounds of delay, dated 29 October 2004 and filed with the Federal Magistrates Court on 1 November 2004.  This matter was not dealt with by Lloyd-Jones FM, undoubtedly because the learned Federal Magistrate dismissed the application before him on grounds which had nothing to do with the issue of delay.  The result of this, however, is that if there was a delay referred to by the Minister, the appellant has not had the opportunity to explain the reason for it.

34. As a result I am not prepared to exercise my discretion to refuse the relief sought.

35. I therefore make the following orders:

    1.The appeal is allowed.

    2.A writ of certiorari be directed to quash the decision made by the learned Federal Magistrate on 27 January 2006.

    3.A writ of prohibition be directed to the respondent preventing him from giving effect to or acting upon the decision made to refuse the protection visa to the Appellant.

    4.An order that a writ of mandamus be issued to the Tribunal compelling it to rehear and re-determine the appellant’s application for review in terms of the criteria laid down in the article 1(A)(2) of the 1951 United Nations Convention on Refugees.

    5.First respondent to pay costs of the appellant.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:             1 June 2006

Solicitor for the Appellant:	Mr Chandra Jayawardena
Counsel for the Respondent:	Miss Rhonda Henderson
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	24 May 2006
Date of Judgment:	24 May 2006