SZIAZ v Minister for Immigration

[2007] FMCA 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 240

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether new claims made by the Applicant at the hearing enlivened the Refugee Review Tribunal’s obligations under s.424A(1) of the Migration Act 1958 (Cth) – whether the novelty of the claims was information given by the Applicant to the Refugee Review Tribunal for the purposes of its review.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424A; 424A(1); 424A(3)(b); 474; pt.8 div.2

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195

Applicant: SZIAZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG45 of 2006

Judgment of: Emmett FM

Hearing date: 26 February 2007

Date of last submission: 26 February 2007

Delivered at: Sydney

Delivered on: 9 March 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent: Mr G.R. Kennett

Solicitors for the Respondent: Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG45 of 2006

SZIAZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 December 2005 and handed down on 20 December 2005.

2. The applicant was born on 8 May 1976 and claims to be from India and of Tamil ethnicity (“the Applicant”).

3. The Applicant has a wife and son who remain in India.

4. The Applicant arrived in Australia on 17 August 2005, having legally departed from India on a passport issued in his own name and a sub class 456 visa issued on 23 July 2005.

5. On 15 October 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. In his protection visa application, the Applicant claimed that he feared persecution by reason of his membership of the Peoples Art and Literature Society (or Association) (“the PALS”) which supports the Communist Party of India (Markist-Leninist) (“the CPIML”). The Applicant claimed police attacked him and beat him for selling anti-government literature. The Applicant further claimed that the police filed cases against him because of his involvement in anti-government activities, as a result of which, he was placed in jail, was denied food and was beaten by other prisoners. The Applicant claimed that he has been detained by police on a number of occasions for participating in political demonstrations.

7. On 25 October 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

8. On 21 October 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 20 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 5 January 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. On 7 November 2005, the Tribunal invited the Applicant to attend a hearing on 2 December 2005.

2. On 7 November 2005, the Tribunal wrote 2 letters to the Applicant, one sent pursuant to s.424 of the Act and the other sent pursuant to s.424A of the Act. One letter requested additional information (“the s.424 Letter”). The second letter identified information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”). On 21 November 2005 the Applicant responded in writing to the letters.

3. The Tribunal noted that it had before it the Department’s file and the Tribunal’s file and other material available to it from a number of sources.

4. The Applicant gave oral evidence before the Tribunal and made additional claims and assertions that he had not raised before, either with the Department or the Tribunal, prior to the hearing, or in response to the Tribunal’s s.424 Letter or s.424A Letter.

5. The Tribunal raised with the Applicant at the hearing the reasons why the Applicant had not made any of these claims prior to the hearing. The Tribunal noted the Applicant’s explanations and rejected them. The Tribunal also rejected the Applicant’s explanation as to why he did not provide documents in support of his claims.

6. The Tribunal noted that the Applicant had travelled to Australia on a business visa. After exploring inconsistencies in information provided by the Applicant on his business visa application and his protection visa application, the Tribunal found that the Applicant had provided false and misleading information to the Tribunal in order to increase his chances of obtaining a protection visa.

7. The Tribunal noted that the information about the business visa was put to the Applicant in the s.424A Letter. The s.424A Letter identified the information and its relevance and invited the Applicant to comment upon it. The Tribunal noted the Applicant’s written response, dated

   
   

   21 November 2005.

8. The Tribunal found that the Applicant was not familiar with the PALS and that he did not have a subjective fear of persecution were he to return to India. The Tribunal found that the Applicant had never been a member of PALS and was not a political activist. The Tribunal found that the Applicant was not arrested, detained, jailed, beaten, starved, tortured or stabbed as claimed. The Tribunal found that there were no claims made against the Applicant and that he had not been described as an extremist or inferred that he is a terrorist.

9. The Tribunal noted that it “rejects the applicant’s claims in toto.”

10. The Tribunal also rejected the Applicant’s assertion that he did not have sufficient time to set out his claims in full in the application for a protection visa and his statutory declaration.

11. The Tribunal concluded that it was not satisfied that the Applicant faced a real chance of persecution should he return to India now or in the foreseeable future, nor that the Applicant has a well founded fear of persecution for any Convention related reason.

12. Accordingly, having considered the evidence as a whole, the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of an interpreter. I note that the Applicant has also participated in the Panel Advice Scheme.

2. The Applicant confirmed that he relied on an amended application filed on 3 April 2006 in the following terms:

   “1. There was a jurisdictional error.

   2. That the decision led to the omission of principles of natural justice while making a decision.

   Particulars: 1

   The Tribunal rejected my claim on the basis that the court papers were not presented to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding limiting the meaning of s424 in contravention to the Article 1A(2) of the Convention thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support.

   Particulars: 2

   The situation of the PALS members were not taken into account in spite of the independent country information report mentioning the demonstrations launched by PALS against the stand of Govt.

   In the light of unfavourable and hostile situation, I fear for the safety of my life.”

3. The grounds and particulars were read to the Applicant and he was invited to make submissions in respect of them.

4. The Court informed the Applicant that it had particular difficulty in understanding particular 1 of the grounds. The Applicant made no relevant submission in support of the ground. The Applicant reiterated on more than one occasion that the Tribunal had decided against him because he did not have documents to support his claims and that the Tribunal did not accept what the Applicant asserted as the facts. The Applicant otherwise cavilled with the Tribunal’s rejection of his explanations in relation to the new claims raised by him at the hearing.

Particular 1 – failure by Applicant to provide documents to support claim of court proceedings against him in India

1. I have considered particular 1 on the basis that it is a complaint by the Applicant that the Tribunal should not have placed reliance on the fact that the Applicant was unable to produce court documents in support of his claims to have been arrested and charged.

2. The First Respondent submitted that the Tribunal’s finding that there were no court proceedings against the Applicant in India, based on the Applicant’s inability to provide documents in support of alleged court proceedings in India, was a finding that was open to the Tribunal on the evidence and material before it. In making that finding, the Tribunal had regard to the several requests made by the Tribunal to the Applicant for any further information in support of his applications and in particular to its s.424 Letter, which requested, inter alia, additional information about “the nature of the charges against you; dates, places and periods of detention you underwent in India (inter alia)”.

3. I agree with the submission of the First Respondent. The Tribunal’s adverse finding in relation to the Applicant’s failure to provide documents was open to it on the evidence and material before it and for which it provided reasons.

4. Accordingly, to the extent that grounds 1 and 2 relied upon particular 1, those grounds are not made out.

Particular 2 – Tribunal’s alleged failure to consider plight of PALS members in India

1. The Tribunal found that the Applicant was not a credible witness, that he had provided false and misleading information, that he was not a political activist and that he had not suffered any of the harm he claimed or been identified as an extremist or a terrorist. Those were findings open to the Tribunal on the material and evidence before it and for which it provided reasons.

2. It was not necessary for the Tribunal to have regard to the situation of PALS members where it made a specific finding that the Applicant was not a member of the PALS, nor a political activist and rejected the Applicant’s claims “in toto”.

3. Accordingly, to the extent that grounds 1 and 2 relied upon particular 2, those grounds are not made out.

Applicant’s new claims made at hearing and s.424A

1. In accordance with its role as a model litigant, the First Respondent submitted that part of the reason for the Tribunal’s adverse findings was the Applicant’s failure to raise the new claims prior to the hearing and the inadequacy of the explanations given by the Applicant. I have dealt with each new claim below, in the context of considering whether or not the Tribunal complied with its obligations under s.424A of the Act in respect of information that was part of its reason for affirming the decision under review.

2. The new claims were as follows:

   i)“In July 2000 he was arrested and detained at Thiruchchi (a city). He and others told the students there about ‘our policies’. The applicant and others were arrested for brainwashing the students.”

   ii)“In October 2000, the applicant and others were campaigning to the farmers in Thaujaur. Problems erupted ‘between them and us’. The applicant was stabbed in the rib and left arm. He was treated in the Thaujaur Government Hospital for ten days.”

   iii)“On his way to Australia an official at Chennai airport was causing problems and the applicant bribed him when the official stated that the applicant did not appear to be travelling to Australia on business”.

3. The Tribunal found that new claims (i) and (ii) squarely fell into the categories of certain information that had been requested by the Tribunal in its s.424 Letter.

4. In addition, the Tribunal  had regard to a letter from the Tribunal to the Applicant, dated 31 October 2005, in which the Tribunal stated that the Applicant should immediately send to the Tribunal “any documents, information or other evidence” that the Applicant wished the Tribunal to consider. The Tribunal also noted that the Applicant’s review application, lodged by the Applicant on 31 October 2005, also stated that the Applicant should give the Tribunal “any information, documents or submissions” that the Applicant wished the Tribunal to consider in support of his application, “or send them to us as soon as possible.” The application for review form also advised the Applicant that “You should also advise the Tribunal if there are any alterations or additions you wish to make to the information supplied in your protection visa application and accompanying documents.”

5. In the circumstances, it was the failure by the Applicant to raise that claim in response to the Tribunal’s request that was the information that was part of its reason for the Tribunal affirming the decision under review.

6. However, the fact that the Applicant had not made those claims before was information given by the Applicant to the Tribunal for the purposes of its review. The First Respondent read the affidavit of Ishan Muthalib, affirmed 29 January 2007, which annexed a copy of the transcript of the hearing. Relevantly, the transcript discloses that the Applicant was asked whether or not he had made these claims before and the Applicant confirmed that he had not. The relevant extract is as follows:

   “[TRIBUNAL]:  So is the information in those documents B, C and the statutory declaration correct?

   THE INTERPRETER:  Yes, they are true.

   [TRIBUNAL]:        And are they still your claims?

   THE INTERPRETER:  Yes.

   [TRIBUNAL]:        Is there anything that has been left out of those document which you would now like to claim?

   THE INTERPRETER:  Yes, I would say now.

   [TRIBUNAL]:        Okay. What is the information?

   THE INTERPRETER:  About some cases and about some arrests.

   [TRIBUNAL]:        Yes. Do you want to tell me now?

   THE INTERPRETER:  Yes.

   [TRIBUNAL]:        Go ahead?

   THE INTERPRETER:  In year 2000 in the month of July I was arrested and detained in a city call Thiruchchi.

   [TRIBUNAL]:        Do you mind spelling that for me?

   THE INTERPRETER:  T-h-i-r-u-c-h-c-h-i. We went to students and we held a campaign, a propaganda meeting and the students protested. Students did not protest. We campaigned about our policies but it was alleged that we turned the attention of students against the government. We were arrested on the basis that we brainwashed students. In year 2000 in the month of October there was an attack in Thanjaur, T-h-a-n-j-a-u-r. As we were campaigning to the farmers in the locality problems erupted between them and us. A friend of mine was injured in that incident, after he sustained a blow on his head. On my part, I had a stabbing on my rib area and another stabbing on my left arm. Because of this I got treatment in Thanjaur government hospital for 10 days.

   [TRIBUNAL]:        Have you raised these claims with me or the department before?

   THE INTERPRETER:  No, I did not.

   [TRIBUNAL]:        Can I ask why you haven’t raised them?

   THE INTERPRETER:  When the story was written only certain details were written because of the tension as it was the last day some aspects had been forgotten.

   [TRIBUNAL]:        Is there anything else you wish to raise?

   THE INTERPRETER:  No, there is nothing, thank you.”

7. The First Respondent referred the Court to NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 particularly at [59] where the Full Court in a joint judgment stated that “careful consideration to the nature of the information that is said to fall within s424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal.” The Full Court noted that, where an applicant may do no more than affirm the accuracy of the statement which contains many diverse pieces of information, then it may be that the information given is not sufficiently specific for the purposes of the review as to be exempted by s.424A(3)(b) of the Act.

8. In the proceeding before this Court, it is clear that the Applicant gave to the Tribunal the information that the claims he made in the protection visa application did not contain the claim that he was now making at the hearing. Moreover, the Tribunal’s question that elicited that information from the Applicant did not contain many diverse pieces of information. It was specific information affirmed by the Applicant in response to basic propositions put by the Tribunal at the hearing in circumstances where the Tribunal’s questions arose naturally from the Applicant’s application for review.  In the circumstances, the Applicant’s answer was information given by the Applicant to the Tribunal, namely that the Applicant had not made these claims before.

9. Accordingly, there is no breach by the Tribunal of its obligations under s.424A of the Act in respect of the Tribunal’s consideration of new claims (i) or (ii).

10. In relation to new claim (iii), the Tribunal stated the following:

    “The Tribunal had put to the applicant in the s.424A letter that he had departed from and returned to India on his own passport without attracting the adverse attention of the Indian authorities. At the hearing the applicant raised a new matter in answer, stating that on his way to Australia an official at Chennai airport was causing problems and the applicant bribed him when the official stated that the applicant did not appear to be travelling to Australia on business. The applicant stated that he did not know he had to tell the Department or the Tribunal about this. The Tribunal finds that the applicant manufactured this matter at the hearing in order to enhance his claims.”

11. The Tribunal noted that at the hearing the Applicant raised a new matter. The new matter was that, on his way to Australia the Applicant bribed an official at Chennai airport when the official stated that the Applicant did not appear to be travelling to Australia on business and that the Applicant did not know he had to tell the Department or the Tribunal about this matter. The Tribunal found that the Applicant manufactured this explanation at the hearing in order to enhance his claims.

1. A fair reading of the Tribunal’s decision makes it clear that the Applicant gave to the Tribunal the information that he had not told the Department or the Tribunal about this matter, prior to the hearing.

2. In the circumstances, the relevant information given by the Applicant was the fact that he had not mentioned this matter before. The matter he was now asserting was new. It was that information, being the novelty of the assertion, that the Tribunal considered was part of its reason for affirming the decision under review. That information was information given to the Tribunal by the Applicant for the purposes of its review. Accordingly, it is information that is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.

Conclusion

1. The Tribunal complied with its statutory obligations in relation to the conduct of its review and the making of its decision. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

2. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

3. The proceeding before this Court is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  7 March 2007