SZGGD v Minister for Immigration

[2008] FMCA 834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGGD v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 834

MIGRATION – Review of decision of the Refugee Review Tribunal – complaint that Tribunal failed to invite the applicant to a hearing – complaint that Tribunal failed to take into account relevant considerations – Tribunal put the applicant on notice that everything he said was in issue – applicant did not raise any new claims – no jurisdictional error – application dismissed.

Migration Act 1958, ss.476, 425, 424A, 91

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
NAOA v Minister for Immigration and Multicultural and IndigenousAffairs [2004] FCAFC 241
SZFSV v Minister for Immigration and Citizenship [2007] FCR 1860
SZFSV v Minister for Immigration & Anor [2007] FMCA 1362
SZHLM v Minister for Immigration and Citizenship (2007) 98 ALD 567; [2007] FCA 1100
SZILQ v Minister for Immigration and Citizenship [2007]
NBKM v Minister for Immigration and Citizenship [2007] FCA 1413
SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87

Applicant: SZGGD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1128 of 2007

Judgment of: Nicholls FM

Hearing date: 7 February 2008

Date of Last Submission: 7 February 2008

Delivered at: Sydney

Delivered on: 26 June 2008

REPRESENTATION

Counsel for the Applicant: Mr D Jenkins

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms T Wong

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 5 April 2007, and amended on 18 June 2007, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1128 of 2007

SZGGD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”), filed in this Court on 5 April 2007, and amended on 18 June 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 3 January 2007 and handed down on 23 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The respondent has put a bundle of relevant documents before the Court (Court Book – “CB”) from which the following background can be discerned.

2. The applicant is a citizen of India who arrived in Australia on 27 September 2004 and applied for a protection visa on 8 November 2004 (CB 1 to CB 42 with annexures).

3. The applicant claimed to belong to the Kammavar Naidu Community, which he described as “one of the backward communit[ies] in India” (CB 27).  The applicant claimed that in 2000, one of his sisters fell in love with, and married, a man from a different community. His parents were opposed to the relationship (CB 27 to CB 28). Despite the fact that police reports stated that the sister committed suicide, the applicant claimed that his sister was killed by her husband and her husband’s family in 2001. This followed an incident in November 2000, in which his sister was admitted to hospital because, it was said, she had slipped in the bathroom and had injured her head. However, the applicant (and his family) believed that she had been mistreated by her husband and his brother.

4. The applicant’s father complained to police, and following this, “rowdies” came to the applicant’s parents’ house and the daughter’s husband attacked him (CB 28 to CB 29). The applicant claimed that on 30 July 2001 his father was killed while riding a motorbike in Peramakudi, and that this was dealt with by police as a “road accident.” The applicant claimed that he went to the police station and argued that it was “an absolute murder,” and that he told the police of the incidents that had occurred involving the sister’s husband and his family. He then went to the sister’s husband’s house to ask about his father’s death, and claimed that he was threatened that he would be killed if he did not “keep [quiet]”. They also later went to his home and attacked the applicant’s mother and sister, who were admitted to hospital (CB 30 to CB 31).

5. As a result, the applicant arranged for a visa to enable him to travel to Singapore and he “escaped” on 11 September 2001. He stayed there for two years and returned to India on 26 August 2003. On return, the applicant found that his “enemies” had destroyed his parents’ house, that he had lost his mother and father and did not know the whereabouts of his two (surviving) sisters. He also claimed that the deceased sister’s husband came to know that he had returned from Singapore and “targeted” him. His uncle arranged for him to visit to Australia and he departed on 26 September 2004. The applicant claimed that his enemies were “political supported rowdies,” and that the “Police and Justice” could not protect him (CB 31).

The Delegate’s Decision

1. The delegate’s decision record is reproduced at CB 45 to CB 52. The delegate found that the applicant’s claim that he and members of his family were persecuted in India “was not perpetrated for a reason mentioned in Article 1A(2) of the Refugees Convention,” and he consequently found that “any persecution that the applicant claims to have encountered in India and the claimed fear of persecution that the applicant purports to have for the reason of his membership of a particular social group that consists of his family should be disregarded pursuant to section 91S of the Migration Act” (CB 51.8).

The Tribunal

1. The applicant applied for review by the Tribunal on 4 January 2005 (CB 53 to CB 57). The applicant provided a number of documents to the Tribunal (see CB 58 to CB 71, and see also CB 80 to CB 84).

2. The applicant appeared at a hearing before the Tribunal (as differently constituted at that time) on 2 March 2005 (“the earlier constituted Tribunal”). The earlier constituted Tribunal’s decision record is reproduced at CB 92 to CB 112. It contains an account of what the earlier constituted Tribunal said occurred at the hearing (CB 98.3 to CB 102.10). The earlier constituted Tribunal affirmed the delegate’s decision (the earlier constituted Tribunal’s “Findings and Reasons” are reproduced at CB 103 to CB 112).

3. This decision was ultimately quashed by orders made following an appeal in the Federal Court and the applicant’s matter was remitted to the Tribunal for reconsideration (CB 114 to CB 115).

4. By letter dated 13 November 2006, Tribunal wrote to the applicant inviting him to comment on information, which it said would, subject to any comments that the applicant might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa (CB 120 to CB 122). The applicant responded on 20 November 2006. He submitted a statutory declaration to the Tribunal (CB 122 to CB 124). On 22 November 2006 he submitted further documents to the Tribunal in support of his application (CB125 to CB 127).

5. The Tribunal proceeded to make its decision (its decision record is reproduced at CB 131 to CB 146). The Tribunal noted that the applicant had given oral evidence to the earlier constituted Tribunal on 22 March 2005. The Tribunal stated that it had listened to the hearing tapes and was satisfied that the summary, which it reproduced in its own decision record, accurately reflected the applicant’s evidence before the Tribunal (see CB 136.6 to CB 139.8).

6. The Tribunal considered whether there was a need for a “further hearing” (CB 142.5 to CB 142.7). It noted that it was obliged to invite the applicant to a hearing pursuant to s.425(1) but that the Tribunal had discharged this obligation on 2 March 2005, being the date when the Tribunal provided the opportunity of a hearing to the applicant, an opportunity that he took up on that date. The Tribunal then further considered “whether or not it was desirable to invite the applicant to a further hearing.” With this issue in mind, it said, it asked the applicant to: “respond to issues relating to s.424A” in the Act (CB 142.7), and to: “submit all further evidence or submissions he wished the Tribunal to consider.”

7. The Tribunal then recorded its consideration as follows (at CB 142.7):

   “Had the applicant provided in his response details of fears other than those contained in his Protection Visa application and discuss during the hearing on 6 February 2006, the Tribunal would have invited him to a further hearing at which he could elaborate on them. However, in the absence of any such fears the Tribunal considers it unnecessary to have a second hearing, as it considers the issues raised in the Protection Visa application were adequately canvassed and explored at the hearing in February 2006.

   The Tribunal, in its discretion has decided not to hold a further hearing. The matter has therefore been decided on the basis of the information now before the Tribunal. The Tribunal is satisfied that the applicant has had ample opportunity to raise all relevant matters with it.”

8. (The Tribunal’s reference to the hearing “on 6 February 2006” and “in February 2006” is obviously made in error as the only hearing the applicant had attended before the Tribunal was on 2 March 2005. Notwithstanding this, I cannot see that this error goes to the exercise of the Tribunal’s jurisdiction, as it plainly otherwise noted that it had listened to the recording of the hearing “of 2 March 2005.”)

9. The Tribunal accepted that the applicant’s deceased sister “did not enjoy a happy marriage” and that the applicant’s family “were distressed by her husband’s treatment of her” (CB 143.5). It also accepted that the sister died in 2001, and that the applicant’s father died in a road accident a couple of months after his daughter’s death (CB 143.8). (The reference to “Ravi’s father,” in context, appears to be a reference to the applicant’s father, not the father of the husband of the deceased sister).

10. The Tribunal, however, did not find the applicant to be credible on some key aspects of his claims, and was not satisfied that the applicant left India because of a fear of persecution “as described in his application and evidence before the Tribunal” (CB 143.6). The Tribunal did not accept that his sister was murdered by her husband’s family, or that that family influenced writers of relevant reports to cover up a serious crime. Further, it was not satisfied that the applicant’s father’s death was murder (CB 143.9). In relation to the latter, the Tribunal stated:

    “Apart from the applicant’s own assertions and speculation regarding this issue there is no evidence supporting a finding that his father died in suspicious circumstances.” (CB 143.10)

11. The Tribunal also found that documents provided by the applicant indicated that the applicant’s sister committed suicide, and was not the victim of murder or manslaughter, and it therefore accepted that his sister’s death was caused by suicide (CB 144.9). The Tribunal also did not accept that the applicant’s mother and sister were attacked by the husband, and family, of the deceased sister. The Tribunal had regard to the failure of the applicant to mention these claims during his hearing before the earlier constituted Tribunal, and that there was no mention of this in his protection visa application (CB 144.3).

12. In addressing the applicant’s claim that he could not live safely in India, the Tribunal said it had “difficulty” accepting this claim, given that the applicant also gave evidence that he returned to India from Singapore in August 2003, and remained there until he left for Australia in September 2004. It was not satisfied that the applicant feared serious harm, nor that he was in hiding during this period (CB 144.5). The Tribunal also did not accept that the applicant had been targeted by police, or by any other party in India, as he had claimed (CB 144.6). Further, the Tribunal did not give any weight to a document provided by the applicant from the Tamil Nadu Kamma Naidu Community Union, given what it said was the “degree of the credibility problems with the applicant’s evidence.” It described this as “the fundamental lack of credibility within the applicant’s evidence” (CB 145.6).

13. In all, the Tribunal was unable to be satisfied that the applicant had a well founded fear of persecution for a Convention reason and it therefore found that Australia did not owe protection obligations to the applicant. It therefore affirmed the decision of the delegate. 

The Application Before the Court

1. The grounds of the application are stated in the following terms, by way of amended application.

   “1. The decision of the Second Respondent was affected by jurisdictional error when the Second Respondent failed to invite the Applicant to appear before it to give evidence and present arguments in relation to the decision under review as it was compelled to do pursuant to s 425 of the Migration Act 1958 (Cth).

   2. In the alternative, the decision of the Second Respondent was affected by jurisdictional error when the Second Respondent’s discretion to invite the Applicant to appear before it to give evidence and present arguments in relation to the decision under review miscarried by reason of the Second Respondent’s failure to take into account relevant considerations.

   Particulars

   The Applicant made claims to support his fears of persecution to the Second Respondent (as differently constituted following referral by the Federal Court) that were not contained in his protection visa application or at the hearing before the Second Respondent.

   The Second Respondent did not take into account the desirability of the Applicant attending a hearing before the Second Respondent in which to elaborate upon the additional claims.”

Hearing Before the Court

1. At the hearing of this matter before the Court, the applicant was represented by Mr D Jenkins of Counsel. The first respondent was represented by Ms T Wong of Counsel. 

2. Following submissions by Mr Jenkins, I understood the applicant’s grounds to be explained, and pressed, as follows:

   1.The Tribunal failed to invite the applicant to appear before it to give evidence and present arguments in relation to the decision under review pursuant to s.425 of the Act.

   2.The Tribunal failed to take into account a relevant consideration when determining that it would not invite the applicant to a hearing. 

Issue One: Failure to Provide a Hearing

1. The applicant’s first complaint is that the Tribunal failed to give the applicant the opportunity to address at a hearing what was described as a determinative issue in the review. 

2. Mr Jenkins submitted that in its letter of 30 November 2006 (“the section 424A letter”) the Tribunal stated amongst other things:

   “A copy of your passport indicates that it was issued in India on 7 July 2000. You travelled to Singapore on 12 September 2001... You remained in Singapore until August 2003. You returned to India on 26 August 2003 and remained in India until your departure for Australia on 26 September 2004. You arrived in Australia on 27 September 2004. This information is relevant because it indicates that you were willing to return to India in 2003 despite claims of fearing persecution and you remained in India for over 12 months before departing in September 2004.”

3. Mr Jenkins submitted that the applicant’s willingness to return to India from Singapore in August 2003, and the applicant remaining in India for over 12 months following his return, were additional “elements” relevant to the consideration of the applicant’s case raised by the Tribunal, and were not raised by the earlier constituted Tribunal at the hearing.

4. In its decision record the Tribunal stated (at CB 144.4):

   “Dealing with the applicant's claim that he cannot live safely in India, the Tribunal has difficulty accepting this claim given the applicant’s evidence that he returned to India from Singapore in August 2003 and remained there until he left for Australia in September 2004. The Tribunal is not satisfied that the applicant feared serious harm or that he was hiding during this period. The Tribunal is of the view that had the applicant feared the harm claimed he would have departed India far more quickly than he did.”

5. Mr Jenkins’ submission was that these “elements” were not dealt with in the reasons of the delegate. The delegate makes no reference in his findings to the applicant returning to India from Singapore, and staying in India for a year, nor does the delegate make any finding that this was “one of the elements” relevant to the issue as to why the applicant would not fear persecution. Nor that it was the basis of the protection visa being refused.

6. Nor did the earlier constituted Tribunal deal with these elements in the way dealt with by the Tribunal. Mr Jenkins submitted, that although the earlier constituted Tribunal made a reference (at CB 98.4) that the applicant: “claims he went to Singapore on 11 September 2001 as he had troubles in India ... and returned to his home ... in August 2003 ...”  this does not equate to how the Tribunal dealt with the matters.

7. Further, that the same can be said where, at the hearing, the earlier constituted Tribunal made reference to (CB 101.7):

   “The Tribunal asked the Applicant about his claim that after he returned from Singapore in August 2003 they knew he was back and ‘targeted’ him, and asked him what actually happened. He claims that when they knew he had returned, they organised some rowdies from the Thevar community and tried to beat him up, but he escaped. Asked when this occurred, the Applicant replied about a month after he had returned from Singapore when he went to see his home. Asked what he thought would happen to him if he went back to India and why he thought he was a refugee, the Applicant replied he didn't have protection for his life, so he came to Australia ...”

8. The applicant’s argument is that the Tribunal found that it had difficulty in accepting the applicant’s claim that he could not live safely in India, given that he returned to India from Singapore in August 2003, and remained there until he left for Australia in September 2004. The Tribunal also expressed the view that if the applicant had indeed feared the harm as claimed that he would have departed India far more quickly than he did.

9. The applicant’s complaint is that no questions were asked by the earlier constituted Tribunal at the hearing, which was relied on by the Tribunal, in relation to these elements. That there was “no detailing” about the applicant’s willingness to return, his reasons for doing so and, importantly, it was not put to him that a person who fears persecution would not have returned to India, and would not have stayed for as long as he did. That is, it was of the view that he did not fear persecution because he did, in fact, return.

10. The applicant relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) to submit to that the Tribunal was obliged by s.425 of the Act to give the applicant an invitation to appear before the Tribunal to give evidence and present arguments relating to these elements.

11. Mr Jenkins’s submission, in short, was that these elements were not raised by the delegate’s decision, and were only properly raised for the first time in the Tribunal’s letter of 13 November 2006. Importantly, a letter sent after the hearing conducted by the earlier constituted Tribunal. As such, the applicant should have been given the opportunity of a hearing before the “currently” constituted Tribunal. 

1. In reply, Ms Wong submitted that both these matters, that is, the applicant’s return to India, during the time he claimed to be suffering fear of the harm from persecution, and his staying in India for a considerable period, were matters that were discussed during the course of the hearing before the earlier constituted Tribunal. Ms Wong submitted that in SZBEL, the High Court’s “requirements” were not as “strict” as the applicant’s argument implied, in that the Tribunal is not required to give a running commentary about what it thinks about the evidence before it (see SZBEL, particularly at [48]).

2. Second, that with reliance on NAOA v Minister for Immigration and Multicultural and IndigenousAffairs [2004] FCAFC 241, the applicant has not brought any evidence before the Court (for example, by way of transcript of the Tribunal hearing) to challenge the earlier constituted Tribunal’s account of what occurred.

3. That, in any event, the Tribunal’s record of what occurred at the hearing demonstrates that the applicant must have known that “everything was in issue.” That is, with reference to SZBEL, the applicant would have been aware that everything he said was being called into question by the Tribunal and that, in those circumstances, there was no obligation to put specific issues to the applicant. 

Consideration

1. The applicant’s claim, both before the delegate and the Tribunal, was that he feared persecutory harm probably from about November 2000 (the time when his father received a phone call from his deceased sister’s husband that she had been admitted to hospital) up until he left India for Australia in September 2004, for the reason that when his father complained about the death of the applicant’s sister, and in which it was asserted was a death caused by her husband and his family, his father was then killed and the applicant’s attempts to obtain action by the police were unsuccessful, ultimately leading the applicant to fear similar harm from his deceased sister’s husband and his family, in circumstances where he was unable to obtain police protection.

2. The delegate’s decision turned on the finding that the persecution as claimed was not perpetrated for a Convention reason, and that, therefore, the applicant’s claim to fear persecution, which purports to be by reason of his membership of a particular social group (his family), should be disregarded pursuant to s.91 of the Act.

3. I cannot see any dispute that the delegate’s decision would not have put the applicant on notice that his travelling to Singapore in September 2001, his return to India in August 2003, and his subsequent departure from India to Australia over a year later in September 2004, was at issue.

4. Further, the Tribunal found:

   1.In its account of what occurred at the hearing, the earlier constituted Tribunal plainly understood the applicant’s claim that he had “troubles in India,” and went to Singapore in September 2001, but then returned to his home village in August 2003 (see CB 98.5), and further discussed with the applicant that he had not been in contact with his (other) sisters since September 2001, and on return to India found that his house had been vandalised and was unable to contact his sisters.

   2.To the extent that the applicant’s claims to fear harm from his deceased sister’s husband’s family was said to be, in part, based on their being members of different castes, the earlier constituted Tribunal squarely put to the applicant: “that it did not understand the significance of his claim that ...” (CB 98.7). On the earlier constituted Tribunal’s account, this matter was pressed three times with the applicant (CB 99.1). The earlier constituted Tribunal put to the applicant that it did not understand how the two families came from two different communities “related to his refugee claims” (CB 99.2 and CB 98.9), which, in the circumstances, I understood the Tribunal (as earlier constituted) to be putting to the applicant that it had difficulty understanding how his claims revealed a Convention nexus.

   3.Further, the earlier constituted Tribunal squarely put to the applicant that: “it was having great difficulty in accepting that there was any political aspect to the tensions between the two families.”( at CB 99.6)

   4.At the hearing it also referred to the applicant’s claim that his sister had been killed by the sister’s husband and his family. In relation to the father, the earlier constituted Tribunal specifically recorded that: “He did not claim to have been present when his father died or to know someone who had witnessed the accident” (CB 100.7). Further, that it pressed the applicant as to how he knew that his father had been murdered (CB 100.8).

   5.The earlier constituted Tribunal also discussed the applicant’s claimed treatment, by the police, of his requests for their help in investigating what he claimed were the murders of his sister and his father. It said: “that this seemed to indicate the police were professional in their treatment of the claims he and his family had made to them; these complaints were treated seriously by them; and they did not give in to bribery or political pressure from Ravi’s family” (CB 101.1).

   6.The earlier constituted Tribunal squarely told the applicant that it: “was having great difficulty in accepting that there was a Convention related element in the tensions between the families, and said that this therefore also affected his claims” (CB 101.5).

   7.The earlier constituted Tribunal again directly asked the applicant: “about his claim that after he returned from Singapore in August 2003 they knew he was back and ‘targeted’ him, and asked him what actually happened” (at CB 101.7).

   8.It also put to the applicant: “that it was having great difficulty in accepting that because of a family dispute ... (almost 4 years later)” the deceased sister’s husband and his family would still be interested to track the applicant down, wherever he went in India, or to harm him for a Convention related reason. (at CB 102.1).

5. Mr Jenkins submitted, on behalf of the applicant, that the Tribunal should have provided the applicant with a further opportunity of a hearing pursuant to s.425 to specifically discuss his return to India from Singapore, and his remaining in India for over a year before departing for Australia. That the references in the earlier constituted Tribunal’s account of the hearing as to the applicant’s going to Singapore and returning from Singapore to India, and his subsequent departure, were not such as to have put the applicant on notice that these “elements” were at issue.

6. I also agree with Ms Wong that any plain, and holistic, reading of the earlier constituted Tribunal’s account of what occurred at the hearing (an account specifically referred to and considered by the Tribunal) would have put the applicant on notice that everything he had said was at issue. The Tribunal’s account (unchallenged by any other evidence brought by the applicant to this Court) shows that the applicant was given an opportunity to discuss (amongst other things) his fear of harm upon his return to India from Singapore and his fear of harm in the ensuing thirteen months or so.

7. I agree with Ms Wong that the earlier constituted Tribunal did give the applicant a clear opportunity to expand on that aspect of his account as it related to the period following his return to India from Singapore and his remaining there for some thirteen months or so. Further, it is also clear that the earlier constituted Tribunal sufficiently indicated to the applicant that there were concerns about whether his account revealed a Convention nexus, and therefore should be accepted as a basis for a finding that the applicant was a refugee.

8. The applicant’s claim of his sister and father having been murdered was clearly the subject of communication from the Tribunal of its doubts about the accuracy of the applicant’s perceptions and his claims in this regard, and the continuing harm that he claimed to face from the deceased sister’s husband, and his family, in the period following his return to India, given that it was said to have arisen out of circumstances to do with his sister’s marriage, and the deteriorating relationship between the two families, is sufficient, in my view, to satisfy what is set out by the High Court in SZBEL (see [47] in particular).

9. Further, I also note as set out in SZBEL at [48], the Tribunal is not required to give a: “running commentary upon what it thinks about the evidence that he has given.” As argued, submitted and pressed before the Court, the applicant’s complaint is that his return, and his staying in India, as an issue, was not raised with the applicant at the hearing, in such a way as the applicant would have understood that this was an issue relevant to the disposition of his claims before the Tribunal. To the extent that this required some commentary on the evidence given by the applicant at the hearing, plainly, this is not part of the procedural fairness obligation owed to the applicant as set out in SZBEL.

10. In my view, the Tribunal discharged its obligation pursuant to s.425 when the applicant was invited to, and attended a hearing (see further below for the circumstances of the hearing that was before a previously constituted Tribunal at [50]), and at that hearing, the earlier constituted Tribunal’s unchallenged account of what occurred reveals that everything that the applicant had claimed was at issue. Specifically the applicant was invited to comment about his fear of harm in that period when he returned to India until he subsequently left.

11. In submissions, Mr Jenkins also relied on the Tribunal’s statement in its letter of 30 November 2006 (see CB 121.2) that “[s]ome of this information was discussed with you at the hearing on 2 March 2005,” and that a distinction needs to be drawn between “some of this information,” and the fact that the Tribunal did not say: “all of the information,” as support for the proposition that what was not spoken about at the hearing was the issue of the applicant’s return to India from Singapore, and remaining in India for over twelve months. Given what is discussed above, this submission also does not assist the applicant.

12. In all, therefore, as argued before the Court, this ground does not succeed. 

The Authorities

1. In SZFSV v Minister for Immigration and Citizenship [2007] FCR 1860 (“SZFSV”), Gray J had before him an appeal from a judgement of this Court (SZFSV v Minister for Immigration & Anor [2007] FMCA 1362) involving the issue of whether the Tribunal failed to consider the application before it in accordance with s.425, in circumstances where a subsequently constituted Tribunal did not provide the hearing pursuant to s.425, and relied on the provision of a hearing by the earlier constituted Tribunal. That is, the circumstance before the Court in the current case.

2. At [4] His Honour said:

   “It seems to me that this appeal raises an important question of principle, namely whether s.425 requires the member newly constituting the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review, when an application has been remitted to the Tribunal to be re-determined according to law, consequent upon a decision of the Tribunal having been set aside by the Court. Written submissions have been filed by counsel for the Minister on this appeal. They indicate that there appears to be a conflict of authority as between judgments of single judges of this Court, but there is no clear judgment of the Full Court providing guidance on the application of the relevant principles to such a case.”

3. The authorities appear to be (amongst others) SZHLM v Minister for Immigration and Citizenship (2007) 98 ALD 567; [2007] FCA 1100 (“SZHLM”) and possibly SZILQ v Minister for Immigration and Citizenship [2007] FCA 941, on the one side, and NBKM v Minister for Immigration and Citizenship [2007] FCA 1413 (“NBKM”) and SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713 (“SZJHL”).

4. The circumstances in SZHLM were that the decision made by an earlier constituted Tribunal, following an oral hearing, had been set aside by the Court and the matter was remitted to the Tribunal for determination. Upon remittal, the (differently constituted) Tribunal sent two letters to the applicant (described as “section 424A letters”), to which responses were given. As in the case currently before the Court, the Tribunal did not afford the applicant a second hearing.

5. The Court held (see SZHLM, in particular at [32] to [34]) that through its letters, the Tribunal had requested additional information, and was therefore required by s.425 of the Act to invite the applicant to a second hearing because the sending of the letters showed that the Tribunal required additional information to enable it to determine the application before it. As in these circumstances, it was still unable to make a decision favourable to the applicant it, therefore, had an obligation to invite the applicant pursuant to s.425 of the Act to appear before it.

6. The issue appeared to turn on (at [32]):

   “The fact that a previous hearing was held did not discharge this obligation in view of the fact that the Tribunal had requested further information.”

7. In SZILQ, the Court found that a “reconstituted” Tribunal made an adverse credibility finding, which was not based on evidence taken directly from the applicant. These circumstances were that the Tribunal had not put any written questions to the applicant, which may have elicited responses, which then may have provided the foundation for an adverse finding. Yet in its findings, the Tribunal commenced its reasoning by rejecting the applicant’s claim on the basis that the applicant in that case, was not a credible witness. In these circumstances, the Court found that the Tribunal was required to hold a hearing to enable such evidence to be taken. 

8. In NBKM, a case also similar to the situation in the case before the Court now, upon remittal, the Tribunal sent the applicants a “section 424A letter” but did not invite them to a hearing.

9. At [30] to [32] the Court (relevant to the current case) stated:

   “30 In this case, the ambit of the potential issues before the Tribunal as originally constituted was defined by claims made by the appellants, as contained in the materials which were provided to the Tribunal immediately prior to the first hearing, and the evidence given at the first hearing. As previously mentioned, in July 2006, after the first decision was set aside and the matter was remitted to the Tribunal, the Tribunal wrote to the appellants inviting the appellants to comment upon nine items of information. These items arose from the content of the claims which had been before the Tribunal when it made its first decision. The letter also invited the appellants to submit any further evidence or submissions they wished the Tribunal to consider.

   31 The appellants responded through their migration agent by commenting upon the items raised in the Tribunal’s letter, but they offered no further evidence or submissions …

   32 In my view, therefore, there was no information provided to the reconstituted Tribunal which amplified the appellants’ claims. There was, therefore, no material change in circumstance which had the potential to expand the scope of the relevant issues beyond those the subject of the first hearing and the first decision. As the appellants had already had the opportunity to provide evidence and make oral submissions as to those issues at the first hearing, the appellants were not, in the circumstances of this case, deprived of their rights under s 425 …”

10. SZJHL also involves circumstances where, upon remittal, the Tribunal sent a “section 424A letter” and the applicant was not given the opportunity of a second hearing.

11. In that case (at [16]), the Court said:

    “It was, in my view, perfectly plain – and should have been such to the appellant – that the entirety of his claims and his credibility generally were in issue in the review. Against this background it cannot properly be said that any further inconsistencies exposed in his s 424A answers relating to his claims or any greater doubts his answers engendered about his credibility raised new or unexpected issues for which, in fairness, a further opportunity for comment ought to have been provided.”

12. Whatever the state of the authorities, in relation to the ground discussed above, however, the applicant, in submissions, relied squarely on SZBEL. (Unlike the ground discussed below where the applicant submitted that, in effect, SZBEL provided the “platform” on which the reasoning in SZHLM and SZILQ reveal error on the part of the Tribunal in the present case.)

13. Further, I specifically understood that the applicant was not pressing in this case what was said in SZHLM at [34]:

    “There is a further consideration. The original decision of the Tribunal, having been set aside had ‘no operative effect’: see SZILQ [2007] FCA 942 The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal’s duty required it to seek further information under s 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ‘to appear before the Tribunal to give evidence and present arguments relating to the issuing arising in relation to the decision under review’ pursuant to s 425 of the Act: see Applicant NAFF of 2002 221 CLR at [26] –[27].”

14. In this circumstance I note and apply what was said by a Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107, where the Court said (at [39]):

    “An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.”

15. The Tribunal was therefore entitled to rely on what had occurred at the hearing (albeit before the earlier constituted Tribunal). In all, therefore, in relation to Ground 1 above, the applicant’s case relied on what was said about procedural fairness, and s.425, by the High Court in this SZBEL. This ground does not succeed.

Ground 2

1. In relation to this ground, the applicant’s case, as pressed before the Court, was not that the Tribunal was, in all circumstances, required to provide the applicant with a hearing. But rather, given that in his response to the Tribunal’s “s 424A letter,” the applicant raised a new claim, then (with reliance on SZBEL and SZILQ, and what was relevantly said in SZHLM) the applicant was entitled to have the opportunity and the Tribunal was obliged to provide the opportunity, for the applicant to discuss this new claim at the hearing.

2. In this regard, I also saw the applicant’s argument as being consistent with what was said in NBKM per Siopis J at [25]:

   “It does not follow that because there is no absolute right to a second hearing when a matter is remitted to the Tribunal for hearing according to the law, that there will never be circumstances when the Tribunal will be required to invite an applicant to a second hearing, in order to comply with s 425(1). Section 425(1) requires the Tribunal to invite an applicant to appear before a Tribunal to give evidence and present arguments relating to ‘the issues arising in relation to the decision under review.’”

Consideration of the Need for a Further Hearing

1. Before considering the applicant’s second ground of complaint, I should just note that I have, with respect, some difficulty with one aspect of the Tribunal’s approach under the heading of: “Consideration of the need for a further hearing” (in its decision record at CB 142.5)

2. The Tribunal recognized that s.425 provides that it must invite an applicant to appear before it and present arguments. However, the Tribunal then went on to say (at CB 142.6) that it: “… considered whether or not it was desirable to invite the applicant to a further hearing” (obviously, in the circumstances where the applicant had already been given a previous hearing), and then went on to conclude: “The Tribunal, in its discretion has decided not to hold a further hearing.”

1. I have some difficulty with the words “desirable” and “discretion” as used above. The obligation in s.425 is mandatory and obliges the Tribunal (in that it “must invite”) to invite the applicant “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.” The use of the words “desirable” or “discretion,” in my view, is inappropriate in this context.

2. In circumstances where an applicant has already been provided with a hearing, this does not mean that the Tribunal has “discretion,” or needs to consider the “desirability” of inviting the applicant to a further hearing. If there is an issue arising in relation to the decision under review, in such circumstances, the Tribunal “must invite the applicant to appear” before it. If the relevant issue, or issues, can be said to have arisen after the hearing, and were not therefore discussed at the hearing, then the Tribunal is obliged to conduct a further hearing. This is consistent with what was said in NBKM at [25], in SZJHL at [16], as well as the circumstances in SZHLM, which required a further hearing (see SZHLM at [34]) and the circumstances in SZILQ, where the Court found that the Tribunal, in finding adversely to the applicant’s credit, did require hearing to be held to enable evidence to be taken upon which to found such a finding.

3. While I have difficulty with the words used by the Tribunal, I am reminded by what was said by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259, and that the Tribunal’s decision should not be scrutinised with an eye finely attuned to error (see at 287: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”).

4. On a fair reading of what was said by the Tribunal in this part of its decision record (and, in particular, I note the Tribunal’s reference to: “Had the applicant provided in his response details of fears other than those contained in his Protection Visa application and discussed during the hearing on 6 February 2006, the Tribunal would have invited him to a further hearing …” – at CB 142.7), the Tribunal understood its obligation to invite the applicant to appear before it, to give evidence and present arguments: “relating to the issues arising in relation to the decision under review.” 

Ground 2: The Need for a Further Hearing

1. Mr Jenkins submitted, on behalf of the applicant, that in response to its letter of 13 November 2006 (the “section 424A letter”), the applicant provided a statutory declaration in response on 20 November 2006. (This declaration is reproduced in the Court book at CB 122 to CB 124.) Mr Jenkins’ submission was that in this declaration, the applicant made an additional claim to fear harm relating to what he said was his “activism.” The applicant relevantly states (at CB 123.3):

   “…sometimes the police of the locality traced my identity and questioned the motives behind my visit to their jurisdiction and accused me of planning to perpetrate some unlawful acts. I continues that it is the usual practice of state police to share their information with the central police agency Intelligence Bureau of police and other state police departments for security purposes. And information about me and activists like us are on the records of the Tamilnadu state police …”

[Emphasis added]

1. In short, Mr Jenkins’ submission was that between the first hearing and the Tribunal’s decision, the applicant raised a new claim, and that, based on what was relevantly said in SZHLM, the Tribunal was required to invite the applicant to a hearing to give evidence and present arguments relating to this issue. 

2. The argument was that there was nothing in the applicant’s earlier claims (that is, the claims as considered up to the time of the hearing) to suggest that he was “an activist.” Mr Jenkins submitted that this was a new claim. This can further be seen by what the Tribunal itself said in its decision record (at CB 144.6):

   “The applicant’s most recent claim (in his statutory declaration received by the Tribunal on 20 November 2006) that he was from time to time during the period August 2003 to September 2004, taken into police custody on suspicious grounds until he produced some identification is questionable.”

3. The Tribunal itself, therefore, realised that there was a “new” claim, recently put (that is, that the applicant was an activist and known to police). Its failure to invite the applicant to a hearing was a failure to accord procedural fairness in relation to this issue pursuant to s.425.

4. Ms Wong submitted that the applicant’s reference to “activists” in his statutory declaration (at CB 123.3) does not, when read properly and in context, constitute a “new” claim as submitted by the applicant now. 

5. Ms Wong’s submission was that the applicant’s use of the word “activists” was not done in circumstances whereby he was advancing a new claim, or new issue, but in circumstances of amplifying what had already been put as a claim in issue, before the Tribunal.

6. The submission was that the paragraph in which this word appears needs to be read holistically and, indeed, in context of all the applicant’s claims that had been put previously.

7. In this regard, the applicant asserts (at CB 123.1) that he was picked up by patrolling police because he belonged “to minority community.” In other words, the actions of the police in picking up the applicant and sharing “information about me and activists like us” was linked to the applicant belonging to “a minority community.” This was a claim plainly before the Tribunal, made initially by the applicant in his statutory declaration attached to his protection visa application (see CB 27.4: “I am belonging to Kammavar Naidu Community one of the backward community in India”), and raised with the applicant at the hearing before the earlier constituted Tribunal, particularly in the context of the Convention nexus between this claim and the fear of harm (see CB 98.8 to CB 99.5). 

8. Further, the submission was that the sentence in which the word “activists” appears (see [72] above and CB 123.3), and the sentences that follow (“State police were upset with me and my family because my relatives complaint against the Tamil Nadu police to the central government. I strongly suspect that ther are many that thevar community [the community to which the deceased sister’s husband belonged] people working in state and central government agencies”) simply amplifies claims already made concerning the problems between the applicant’s community and the deceased sister’s husband’s community. It also amplifies the claims that: “Because of the political pressure from their side [that is, of the deceased sister’s husband’s family] the police threatened my father that they return the case against my father” (CB 29.4).

9. Ms Wong also submitted that, as put in response to Ground 1, that as a result of the hearing before the Tribunal, the applicant knew that his credibility of the claims as put by him, were at issue and during the course of the hearing, it was apparent that everything was at issue.

10. In these circumstances, therefore, the Tribunal did comply with s.425. In consideration of this ground, I am guided by what was said by a Full Federal Court in Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11] and [12]:

    “11 … In our view, this case is an example of the situation to which the High Court referred in the comment from SZBEL quoted by his Honour [SZBEL at [47]] … However where, as here, an applicant gives a chronological account of his experiences and the later elements of the account are a function of earlier events, the credibility of the later events must depend on whether or not the Tribunal accepts the earlier account. According to the Respondent his initial refusal to pay fines led to his harassment by the police and to his imprisonment. His continued refusal led to the disruption of his trucking business which led him to engage in political opposition to the police corruption. This led to further threats and harassment and eventually to him fleeing China. It is this chain of experiences on which his claim to have a well-founded fear of persecution is based.

    12 The Tribunal’s refusal to accept his account of the initial elements in this chain of causation is a sufficient reason not to explore later elements.”

11. In his protection visa application, and in his evidence before the earlier constituted Tribunal at the hearing, the applicant gave a chronological account of his experiences relevant to his claim to fear persecutory harm based on his family’s “difficulties” with the family of his deceased sister’s husband. It was claimed (although not adequately explained to the satisfaction of the Tribunal) that the different community status of the two families was also part of the claim to fear harm.

12. The applicant gave a chronological account to the Tribunal of relevant elements of his claim. That is, the marriage of his sister, which was only reluctantly agreed to by his family, the claimed abuse of her by her husband and his family, her death, followed by the death (“murder”) of the applicant’s father which caused him to fear for his own safety (and that of his family), particularly as the police did not appear able to assist him as he wished. This led him to leave India for Singapore in September 2001. When he returned to India in August 2003, the deceased sister’s husband’s family continued to target him, which led to his ultimately leaving India some thirteen months later. The credibility of key aspects of the applicant’s claims, and, in particular as they related to establishing a Convention nexus, was plainly put to the applicant during the course of the hearing.

13. The Tribunal sent its letter of 13 November 2006, plainly in circumstances where it considered that it was obliged to do so in meeting its obligations set out in s.424A. The applicant’s subsequent statutory declaration, submitted to the Tribunal on 20 November 2006, must be read in light of the applicant responding to what the Tribunal had put in its letter.

14. The applicant repeated his evidence that (as set out in his first statutory declaration at CB 31.1) after his father was killed, and the applicant had gone to the police Commissioner’s office to complain about the deceased sister’s husband’s claimed role in his father’s “murder,” the sister’s husband went to the applicant’s home, and that his mother and (another) sister were “injured severely” and were “admitted to hospital.” In the applicant’s exposition of his claims it was at this point that he then left India for Singapore. In his second statutory declaration (submitted on 20 November 2006), the applicant claimed to continue on return from Singapore to India to fear harm from the deceased sister’s husband and his family, and that this caused him to travel around India.

15. At the hearing conducted by the earlier constituted Tribunal the applicant would have been clearly on alert that his evidence relevant to his claimed fear of persecutory harm (based on the account of events which he had given) was such as to be in issue before the Tribunal. In these circumstances, the Tribunal was not obliged to provide any further hearing pursuant to s.425, given that the Tribunal had already invited the applicant to appear before it to “give evidence and present arguments relating to the issues arising in relation to the decision under review.”

16. The applicant’s later account of what he subsequently said occurred when he returned to India is plainly a part of the chain of events which he had previously given. That is, that the applicant was forced to travel to other parts of India because of his “minority community” status, that he was detained and asked to provide identification, and that his relative’s complaints about the State police, the State police denial that his father and sister had been murdered (contrary to his own view), and their failure to protect him from the deceased sister’s husband’s family, led to his fear of harm from the police. These elements of the applicant’s account are plainly a function of, and consequence to, the earlier account of claimed events. That is, the applicant would not have needed to have travelled to other parts of India, if not for the difficulties faced as a result of the actions of the deceased sister’s husband and his family, and the actions of the local police.

17. The Tribunal (as was put by the earlier constituted Tribunal at the hearing) did not accept the credibility of the applicant’s initial elements of his claim, and their capacity to provide a Convention nexus. In these circumstances, the Tribunal discharged its obligations pursuant to s.425 and did not need to explore the later expressed elements at a hearing.

18. I agree with Ms Wong that what the applicant sought to put before the Tribunal in his subsequent statutory declaration (in that part to which the Court was referred by Mr Jenkins – CB 123.1) was an amplification or an extension of his claim to fear harm because of the actions of his deceased sister’s husband and his family, which was plainly the issue arising in relation to the decision under review, and in respect of which the applicant had already been given the opportunity of a hearing. 

19. Further, I do not agree with submissions made by Mr Jenkins that the mere mention of the word “activists” in the applicant’s statutory declaration is a “whole new claim” made by the applicant. There is nothing in any of the claims made by the applicant, neither in his first statutory declaration, at the hearing before the Tribunal, nor, importantly, in the second statutory declaration, to support the submission put before the Court now, that this is a “new” claim.

20. When read plainly, and in context, there is nothing to suggest that the applicant was an “activist” in the political sense, or was an “activist” in promoting or supporting the interests of the minority community to which he said he belonged. What the applicant was claiming, in my view, was that wherever he went in India, he was detained and asked for proof identity by police, he would be ultimately “known” to the local police in his home state because information was shared with police in these other parts of India.

21. In my view, when read in context, the use of the word “activists” does not convey some additional claim to fear harm on the part of the applicant, but seeks to reinforce the point that wherever the applicant were to go in India, the police records (both state and national) were such that his activities would be known to the police because his local state were upset with him because of complaints made about them, and their role in the events relating to the harm said to have been suffered by the applicant’s family. In these circumstances, I do not agree that the applicant’s use of this term is such as to say that a new claim was raised in the statutory declaration.

Conclusion

1. With the benefit of Counsel, the applicant has put two grounds before this Court. Neither of the applicant’s complaints are made out such as to show jurisdictional error on the part of the Tribunal. For the reasons set out above, in my view, the Tribunal did discharge its obligations pursuant to s.425, and there was no obligation on the Tribunal to provide any further hearing relating to the issue arising in relation to the decision under review. In light of this the application is dismissed.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 26 June 2008