SZEXX v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1931
•14 DECEMBER 2005
FEDERAL COURT OF AUSTRALIA
SZEXX v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1931MIGRATION – Refugee Review Tribunal – application for review dismissed by Federal Magistrates Court – appeal from Federal Magistrate – inconsistency between protection visa application and application for review – whether inconsistency reason or part of the reason for the Tribunal’s decision – appeal dismissed
Migration Act 1958 (Cth) ss 424A and 441A
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 cited
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 discussed
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 discussed
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 referred toSZEXX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL
NSD 1720 OF 2005
CONTI J
14 DECEMBER 2005SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1720 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZEXX
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
14 DECEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the respondents’ costs fixed at $3,390.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1720 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZEXX
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
CONTI J
DATE:
14 DECEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the orders and reasons for judgment of Smith FM made and delivered on 31 August 2005, whereby his Honour dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 16 June 2004. The Tribunal had affirmed the earlier decision of a delegate of the Minister rejecting the appellant’s application for a protection visa.
The appellant is a citizen of India from the state of Gujrat who arrived in Australia on 19 January 2003. The appellant made a number of claims in his protection visa application, and during his hearing before the Tribunal, to the effect that he feared harm by reason of his religious beliefs. The appellant claimed that although he was a Hindu, he had recently made attempts to convert to Christianity and that his decision to do so had led to reprisals from his fellow villagers in India. The appellant claimed that he was beaten and that his home was taken from him and burned. During the Tribunal hearing, the appellant further claimed that he would be driven out of his village if he returned to India. He also made a claim that although he remains a Hindu, he would still be harassed by his fellow villagers because ‘there are groups within the religion [that is, within Hinduism] and that each group wants the [appellant] to join them’. During the hearing, the Tribunal asked the appellant to identify who was looking after his house in India at present, to which the appellant replied that it is unoccupied and closed.
The Tribunal found that the appellant was not a person to whom Australia owed protection obligations under the Convention because it did not accept his claims that he had an interest in pursuing the Christian faith upon his return to India, and that he had suffered harassment and assault from fellow Hindus by reason of those religious beliefs prior to his arrival in Australia. The Tribunal likewise did not accept his claims to have suffered persecution at the hands of competing ‘groups’ within the Hindu faith in his local town. The Tribunal’s reason for so finding was that it did not accept that the appellant was a witness of credibility. The bases for that adverse credibility finding are as follows:
(i)the appellant’s evidence to the Tribunal was internally inconsistent and contradictory;
(ii)the Tribunal did not accept the appellant’s central claim that he wanted to become a Christian, or had an interest in becoming a Christian; the appellant arrived at the hearing displaying ‘a red dot and two vertical stripes on his forehead’, being religious symbols identifying the appellant as Hindu; when asked by the member why he wore those symbols, the appellant responded that they were signs of his religion (being Hinduism) and that he still considered himself Hindu ‘because he had to believe in some god’; moreover, the appellant was not able to satisfy the Tribunal that he had any knowledge of Christianity or that he had taken any steps either before leaving India or since arriving in Australia to better familiarise himself with the Christian faith, to become a member of the Christian church or to practice its tenets; finally the appellant’s evidence on how he first started to hear about Christianity was found to vary throughout the hearing and hence further contributed to the Tribunal’s perception that the appellant’s claim in this regard was not genuine;
(iii)the Tribunal did not accept that the appellant suffered any persecution in India and found that his evidence during the hearing was contradictory (initially claiming that he had been beaten and later admitting that he had only been threatened) and vague (for instance the Tribunal remarked that the appellant was unable to identity with any precision who he claimed had attacked him); there were also found by the Tribunal to be inconsistencies between his written statement attached to his protection visa application and his oral evidence, such as for instance involving his house, which he later denied had been burnt down by fellow villagers;
(iv)the appellant did not provide any evidence supportive of his claims, and the reasons given by the appellant at various stages of the hearing for failing to have any documentation of that kind were found by the Tribunal to be inconsistent.
It is I think clear that the Tribunal formed an opinion that the appellant lacked credibility for several different reasons, each of which were in themselves sufficient to ground that finding. I would observe that for some part of the hearing, it appears that the appellant’s interpreter and the Tribunal member were not aware that the word being used by the appellant to refer to Christianity was in fact averting to that religion. Smith FM found that it was clear from the detailed record of the proceedings contained in the Tribunal’s reasons for decision that by two-thirds of the duration of the hearing, nobody could have been under any misapprehension about the religion to which the appellant had been referring.
In dismissing the appellant’s application for review, Smith FM held that the Tribunal’s finding that the appellant had not suffered any persecution prior to leaving India was open to it from the inconsistencies within the appellant’s evidence given during the hearing, and was therefore not vitiated by jurisdictional error. His Honour also addressed the apparent confusion experienced by the Tribunal during the hearing about the other religion to which the appellant had been referring to, and held that in spite of that earlier confusion, which was subsequently corrected as I have described above, the Tribunal fully understood the appellant’s claims, namely that he suffered persecution from Hindus as a result of his desire to become a Christian. His Honour considered whether the circumstances associated with that confusion:
(i)vitiated the Tribunal decision due to an appearance of bias;
(ii)rendered the hearing unfair because it denied the appellant the opportunity to put his case to the Tribunal;
(iii)was such as to give rise to unfairness in the way the hearing was conducted; and
(iv)caused the Tribunal to make a material mistake about the appellant’s claims to require protection.
His Honour found that the circumstances surrounding that confusion did not lead to any of the results postulated above. That is, so the Federal Magistrate further found, a fair-minded lay observer would not have reasonably apprehended from those circumstances that the Tribunal member might not have brought an impartial mind to the resolution of the question before it, the Federal Magistrate thereby citing Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425. In particular, his Honour observed that once the Tribunal appreciated the mistake that had been made, it allowed the appellant further opportunity to put his case concerning his adherence to Christianity. For the same reason, the Federal Magistrate rejected the claim that the hearing itself had been unfair, and found that procedural fairness did not require that the hearing be rescheduled before a differently constituted Tribunal. For the reasons already recorded above, his Honour did not find that the Tribunal had misunderstood the appellant’s claims as a result of the confusion, and that by the time it came to conducting the last part of the hearing, and to writing its reasons for decision, it clearly appreciated the nature of the claims made by the appellant.
On 16 September 2005, the appellant filed a notice of appeal from the judgment of Smith FM, which contained the following grounds (read literally):
‘1. The Single Judge of the Federal Magistrates Court in his Honors judgment delivered on the 31 August 2005 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39 B of the Judiciary Act 1903.
2. I refer High Court decision SAAP v MIMIA…
3. High Court judgment: Plaintiff S 157/2002 v Commonwealth…
4. Recent high Court of Australia judgement: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs…’
The appellant did not file any written submissions in support of his appeal, nor did he make any oral submissions at the hearing today.
Having reviewed the Tribunal’s reasons for decision and those of Smith FM, it is apparent that his Honour was correct to reject the application for review for the reasons which he gave. There remains only one issue to consider, which was commendably brought to my attention by counsel for the Minister in his written submissions, and that concerns the Tribunal’s observations as to several inconsistencies between the appellant’s application for a protection visa and his submissions made during the course of the hearing. Although those inconsistencies were put to the appellant by the Tribunal during the hearing, they were not provided in accordance with s 441A, as conceivably required by s 424A of the Migration Act 1958 (Cth) (‘the Act’). Section 424A reads relevantly as follows:
‘(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A…
(3) This section does not apply to information:
…
(b) that the applicant gave for the purpose of the application; or
…’
Section 441A outlines the methods by which the Tribunal must give documents to a person. Section 424A requires the Tribunal to give an applicant for review particulars in writing of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. It also requires the Tribunal to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and to invite the applicant to comment on it. The issue therefore conceivably arising is whether or not s 424A applied and thus whether the Tribunal was required to provide written notification to the appellant of those inconsistencies and to allow the appellant to respond to the same.
In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, a majority of the High Court held that the Tribunal’s obligations under s 424A ought not to be regarded as ‘spent’ merely because the obligation to comply with the same only arises once a hearing has begun (per McHugh J at [63], Kirby J at [164] and Hayne J at [184]-[185]). The majority also held that s 424A is a mandatory provision, the breach of which will amount to a jurisdictional error (per McHugh J at [77], Kirby J at [173] and Hayne J at [208]).
The Minister contended that SAAP was distinguishable from the present circumstances and that the obligations under s 424A do not apply, since the observations made by the Tribunal about inconsistencies between the appellant’s evidence at the hearing and his protection visa application did not form ‘the reason, or part of the reason’ for the Tribunal’s decision, which decision was characterised by the Minister, in my opinion correctly, as an adverse credibility finding about the appellant and his claims.
In support of that submission, the Minister relied upon a decision of the Full Federal Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471. In the joint judgment of Finn and Stone JJ, there was discussed the meaning of part of the reason for a Tribunal’s decision and at [33] of their reasons the following observation was made:
‘It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition…’
Their Honours then proceeded to consider the ‘language and structure of the Tribunal’s reasons’ and found that although the phrase ‘for all of the above reasons’ was used repeatedly by the Tribunal, so much did not accurately represent the true qualities of its reasoning process and should not be interpreted in such a way so as to indicate that each of the respective ‘reasons’ given amounted somehow to ‘cumulative and interdependent reasoning’.
The Minister maintained that in a similar way, the Tribunal’s observations about the inconsistency between the appellant’s earlier claim that his house had been burned down, which he subsequently reversed, together with the inconsistency between what the appellant had said at various stages about the location of a Christian church near his town, ought not to be construed as part of the reason for the Tribunal’s decision.
It is evident that the Tribunal affirmed the delegate’s decision because it did not accept the appellant’s claims to fear persecution upon his return to India. It did not accept those claims because it did not believe them – in particular, because of his attire and his responses to questions about Christianity, and to questions concerned with steps that he had taken in Australia to familiarise himself with that faith. Hence the Tribunal formed an opinion that the appellant’s claims to want to become a Christian were found to be not genuine. That decision, effectively determinative of the application for review, did not depend upon any inconsistencies to which attention was drawn by the Tribunal. Similarly the Tribunal’s concern about the inconsistent and internally contradictory nature of the appellant’s oral evidence given during the hearing led it to decide that the appellant lacked credibility in general. Whilst the inconsistencies between certain aspects of the appellant’s accounts in his protection visa application and his submissions at the hearing no doubt were confirmatory of the Tribunal’s existing belief that the appellant was not a person of credibility, they were not in my opinion the reason or part of the reason for its finding to that effect. Accordingly the Tribunal was under no obligation to comply with s 424A and there was no jurisdictional error in that regard.
In the light of the foregoing, I have not found it necessary to consider the Minister’s alternative submission that the inconsistency between the appellant’s protection visa application and the appellant’s evidence given at the hearing was not ‘information’ within the meaning of s 424A(1) of the Act. In support of that submission, the Minister cited a passage appearing in [33] of the reasons for judgment of Marshall, Weinberg and Jacobson JJ in WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, which reads as follows:
‘A conclusion on the part of the [Tribunal] that there is an inconsistency between two pieces of information is not, of itself, “information” for the purposes of s 424A(1). It is no more than an observation made by the [Tribunal] in dealing with a conflict given by the appellant… and a claim made by him in support of his application…’
In the light of the foregoing, I dismiss the appeal and order that the appellant pay the respondents’ costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 23 January 2006
The appellant appeared in person Counsel for the Respondent: D Jordan Solicitor for the Respondent: Phillips Fox Date of Hearing: 14 December 2005 Date of Judgment: 14 December 2005
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