SZIJD v Minister for Immigration
[2007] FMCA 1204
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1204 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 441A, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZCJD v Minister for Immigration and Multicultural Affairs [2006] FCA 609 SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 |
| Applicant: | SZIJD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 493 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair (appearing on a direct access basis) |
| Counsel for the First Respondent: | Ms S A Sirtes |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 15 February 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG493 of 2006
| SZIJD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZIJD”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
15 February 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 6 January 2006 and handed down on 31 January 2006, affirming a decision of a delegate of the first respondent made on 11 October 2005, refusing to grant the applicant a Protection (class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 16 March 2006. I have marked it Exhibit “A” and it was read into evidence.
Counsel for the applicant tendered a transcript of the Tribunal hearing held on 5 January 2006. Leave was granted, subject to conditions considered below and the transcript was marked Exhibit “A2”.
Background
The Tribunal decision of R Inder, reference N05/52628, provides the following background information:
The Applicant, who claims to be a citizen of India, arrived in Australia on 8 August 2005. On 2 September 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 11 October 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 7 November 2005 the Applicant applied [to the Tribunal] for review of that decision.
The Tribunal decision under the heading of “Claims and Evidence” sets out details of the applicant’s background which I briefly summarise.(CB 76) The applicant claims that he lived in Kannur City, Kerala, which was 100km northwest of Calicut. He lived there for 30 years and operated a business in the adjacent state of Karnataka. He went to the United Arab Emirates (UAE) in 1992 and worked there as a security officer until October 2000. During that period, he returned home for periods of approximately 30 to 45 days every 18 to 24 months (seven times in all). He attended school in Kannur City from 1964 to 1978 and did courses in fire fighting, security and first aid in the UAE. From 1978 to 1991 and 2001, he owned a wholesale business.
The applicant claims he was born in Bangalore but moved to Kannur City when he was five. In late 1970 he moved to his father’s house in Sadarpathrappa for about 10 years. After his return from the UAE, he lived in Kannur City for about six months and then went back to his father’s house in Sadarpathrappa.
The applicant claims he joined the student wing of the Indian Union Muslim League (IUML) around 1975 where he was an active member. He joined the Karnataka Branch when he left school but never held a formal position in that organisation. He claims that he promoted membership of the party and enrolled members during elections. He indicated to the Tribunal that the goal of the IUML was to promoted education amongst Muslims in Kerala and Karnataka.
The applicant claims that before he went to the UAE in 1992 his shop and vehicle were burnt. He said this occurred during an election campaign in which he was active, and that the opposing BJP were responsible. Once when he was attending a rally, the BJP attacked and threw acid bulbs, one of which hit him.
Tribunal’s findings and reasons
A summary of the Tribunal’s findings is contained in the first respondent’s written submissions prepared by Ms Sirtes and I adopt paragraph six of those submissions:
The Tribunal:
(a)Found that the applicant was a national of the Republic of Indian, by reference to his passport (CB 80.6).
(b)Found that the applicant’s “vague and uninformed” answers to the Tribunal’s questions led it to reject that the application was a active member of the Indian Union Muslim League (“IUML”) (CB 81.5).
(c)Consequently found that the applicant’s claims which flowed from his IUML membership were rejected (CB 81.7 to 81.8).
(d)Found that if the applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason that he would have taken the opportunity to seek protection once outside India in one of his 7 visits to the United Arab Emirates (CB 82.5).
(e)Gave the applicant the benefit of the doubt that he had attended several rallies during which he was once hit by a bulb of acid thrown at the crowd (CB 82.9) however, the Tribunal also accepted the applicant’s evidence that he did not know the people who had thrown the bulb and noted that he did not claim to have been specifically targeted.
(f)Accepted independent country information regarding the political landscape in India (CB 83.5 to 84.9).
(g)Was not satisfied that the applicant would be of any interest to BJP fanatics who would seek to hunt him down and harm him across India, simply by reason of being an ordinary member of IUML (CB 85.4).
(h)Did not accept that if the applicant sought state protection it would be denied to him by reason of his being a Muslim or his limited IUML involvement (CB 85.8).
(i)Found instead that if for some subjective reason the applicant did not wish to return to live with either of his mother or father that is was reasonable for him to relocate within the states in which they (respectively) lived, or somewhere else in India, without there being a real chance he would be subjected to serious harm of a Convention kind (CB 85.9).
(j)Found overall that there was no real chance of the applicant facing a real chance of serious harm within the Convention definition on return to India (CB 86.1).
Application for review of the Tribunal’s decision
On 15 February 2006, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with leave granted at the first court date, the applicant filed an amended application on
25 May 2006 setting out the following ground:
1. The second respondent’s purported decision is vitiated by jurisdictional error in that the second respondent (“the Tribunal”) failed to act in accordance with section 424A of the Migration Act 1958
Particulars:
i)The applicant provided a statement to the Department of Immigration and Multicultural and Indigenous Affairs (CB 27 to 28). Through this statement the Tribunal gained information that the applicant had said that the BJP Party (in India) had persecuted him, that they (the BJP) “have destroyed everything and later on ordered me to leave the area and if I disobey I will be killed”. The Tribunal also learnt through this statement that the applicant had lived in the United Arab Emirates (UAE) from February 1992 until 2000. (see CB 28;CB 80)
ii)The Tribunal gained information from this statement that the events described in the statement (the BJP destroyed everything, ordered the applicant to leave the area or he would be killed, and the applicant lived in hiding for a considerable period of time – see CB 80) occurred before the applicant went to the UAE in 1992 (CB 80).
iii)It can be fairly inferred that the Tribunal – through the provision at the hearing of his Indian passports by the applicant – was provided with the information that the applicant had “voluntarily returned (from the UAE) to Indian on some 7 occasions before 2000” (CB 82).
iv)The fact of inconsistency between the information provided by the applicant to the Department (in (i) and (ii)) and that provided by the applicant to the Tribunal for the purpose of the review was the reason or part of the reason for the Tribunal affirming the decision under review (see CB 82).
v)The Tribunal did not, pursuant to section 424A give the applicant particulars of this information including this inconsistency. The Tribunal did not ensure, as far as was reasonably practicable, that the applicant understood why this information was relevant to the review. The Tribunal did not invite the applicant to comment on this information.
vi)The Tribunal did not give the applicant the information and invitation by one of the methods specified in section 441A – in particular the Tribunal did not give the information and invitation in writing.
Submissions and reasons
Mr Nair, appearing for the applicant, submits that the applicant seeks relief on the basis that the Tribunal did not act in accordance with s.424A of the Act. A statement attached to the original visa application reads:
I was targeted because of my involvement with the IUML by BJP they threatened me to stop my activities or face consequences.
They have destroyed everything and later on ordered me to leave the area and if I disobey I will be killed…
By the help of my friend I got a visa to Abudabi in 1992 February and returned India on 2000.(CB 27-28) [copied without correction or alteration]
Nr Nair submits that under the heading “Findings and Reasons”, the Tribunal decision referred to information that after the applicant went to the UAE in 1992 he returned to India seven times before finally returning permanently in 2000. It is submitted that the Tribunal got this information either from answers provided by the applicant during the hearing (CB 76.5), or from his passport provided during the hearing.(CB 82) Mr Nair argues that the inconsistency between the information about the seven return visits, and the information provided by the applicant in his protection visa application about him being targeted by the BJP, was clearly the reason or part of the reasons for the Tribunal affirming the delegate’s decision.(CB 82.2)
Mr Nair referred to the following passage from the transcript of the Tribunal hearing:
MR INDER: I will come back to that a little later because there was things I didn’t understand. Can you tell me which countries you have been to overseas and when you went there and for how long and what you did there?
THE INTERPRETER: Eight years in United Arab Emirates.
MR INDER: That was from 21st of January ’92 until October 2000. Is that right?
THE INTERPRETER: Yes.
MR INDER: Until October 2000?
THE INTERPRETER: Yes.
MR INDER: 4 October?
THE INTERPRETER: Mm.
MR INDER: Had you been to anywhere before then?
[SZIJD]: Six months before I went to Japan for one month. Before I coming here.
THE INTERPRETER: Before reaching Australia, six months - - -
MR INDER: No, sorry, I can understand when he speaks English. The interpreter here is to help you. If you want to talk in English that is fine. If you don’t understand something I say or if you have something you can’t say in English or you want to be more relaxed, the interpreter is here for your use. So other than UAE, the only other country you have been to is Japan, is that right?
THE INTERPRETER: Other than UAE you went to?
[SZIJD]: Japan.
MR INDER: Any other countries?
THE INTERPRETER: No.
MR INDER: You didn’t go to Europe from UAE or anywhere?
[SZIJD]: No.
MR INDER: When you were in UAE, did you ever go back to India?
[SZIJD]: Yes.
MR INDER: How often?
[SZIJD]: Two year and every one and a half year.
MR INDER: Every 18 months to two years, is that right?
[SZIJD]: Eight years, one year.
MR INDER: How long for?
[SZIJD]: 30 days, 45 days.
MR INDER: You went back to Kannur City, did you?
THE INTERPRETER: Yes, Kannur City.
MR INDER: So you would have gone back four or five times or how many times did you go back to India from the Emirates?
[SZIJD]: Seven or something like that.(Transcript, p.6-8)
Mr Nair contends that the Tribunal did not, pursuant to s.424A, give the applicant particulars of this information, or ensure as far as was practicable that the applicant understood why this information was relevant to the review. It did not invite the applicant to comment on this information. Mr Nair submits that the Tribunal also did not give the applicant the information or invitation by one of the methods specified in s.441A. In particular, it did not put this information and the alleged inconsistency to the applicant in writing.
Mr Nair referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [108]-[111] per Weinberg J:
[108] Al Shamry would hardly have assumed the importance that it now seems to have done had it not been for the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. Though Al Shamry had narrowed the scope of the exception in s 424A(3)(b), and correspondingly broadened the scope of ss 424A(1) and 424A(2), it maintained a significant degree of flexibility in applying those provisions. The Full Court made it clear that any failure on the part of the Tribunal to comply strictly with the requirements of s 424A would not, of itself, give rise to reviewable error. Rather, each case would have to be considered in the light of its own particular facts.
[109] The judgment in Al Shamry proceeded on the basis that the grant of relief by the court was discretionary, and that it would be a proper exercise of that discretion to refuse relief if the Tribunal’s findings of fact led inevitably to the conclusion that the application for review was destined to fail. In other words, it was a critical aspect of the reasoning in Al Shamry that the court should consider whether the procedural breach involved in failing to comply with s 424A had led to some actual unfairness.
[110] It seems clear that the judgment of the High Court in SAAP has radically altered the position. By a three to two majority (McHugh, Kirby and Hayne JJ, Gleeson CJ and Gummow J dissenting), it was held that s 424A required the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review. Having regard to the mandatory language of the section, and irrespective of the merits of the case, nothing less than written notice of such information specified would suffice. Any breach of the requirements of the section (as for example by giving oral notice rather than written notice) would constitute jurisdictional error. Accordingly, non-compliance would render the Tribunal’s decision invalid.
[111] It is important to note that the majority went on to reject the contention that, in the absence of any actual unfairness being demonstrated, the court should refuse to grant relief in the exercise of its discretion. According to the majority, in the absence of factors such as delay, waiver, acquiescence or unclean hands (which their Honours acknowledged might be relevant to the exercise of judicial discretion), a breach of s 424A, whether it led to actual unfairness or not, would normally result in the Tribunal’s decision being set aside.[emphasis added]
Mr Nair emphasised that what he relies on as information should have been provided to the applicant pursuant to s.424A. This was the inconsistency between the information gained by the Tribunal at the hearing that the applicant had travelled from the UAE between 1992 and 2000, and the information provided in the protection visa application that he had travelled to the UAE after a number of events had taken place in India. It is the inconsistency between these two pieces of information which is the “information” that should have been put to the applicant. Further, that nothing in the transcript indicates that the perceived discrepancy was put to the applicant at the Tribunal hearing.
Mr Nair was requested to clarify the stated inconsistency between the information in the protection visa application and the information regarding travel to the UAE. Mr Nair indicated that the Tribunal found that the applicant claimed that he went to the UAE because a number of events led him to fear persecution. He then returned to India a total of seven times from 1992 to 2000. The Tribunal in its “Findings and Reasons” states:
Moreover, the Tribunal is satisfied that if he had a well-founded fear of persecution then he would not have voluntary returned to India on some 7 occasions before 2000.(CB 82.4)
Ms Sirtes submits that the passport information is not information which enlivens an obligation under s.424A(1) because the applicant provided his passport to the Tribunal at the hearing. Accordingly, it is information which comes within the ambit of the exception in s.424A(3)(b). In relation to the alleged inconsistency, Ms Sirtes submits that the Tribunal did not find that the threats which occurred before the applicant travelled to the UAE were inconsistent.
The Tribunal’s “Findings and Reasons” records:
The Applicant’s claims in his protection visa application declaration that contain his claims are often very vague and general, and the only dates he has provided are his date of birth and the general dates he lived in the UAE (February 1992 until 2000). He claims he was an active member of the IUML but does not say when he joined it. He claims that he worked hard for the party but does not say in any detail what he actually did. He claims that the BJP destroyed everything, ordered him to leave the area or he would be killed, and lived in hiding for a considerable period of time but does not say when these events occurred (although by the sequencing of his account it is clear that they occurred before he went to the UAE in 1992) or where he was living when they occurred.(CB 80.5)
Ms Sirtes submits that there is no inconsistency between the above from the Tribunal decision and the information contained in the applicant’s passport.
Ms Sirtes also submits that the allegation that the information about the threats ought to have been put to the applicant is dependant upon the threats having been made before the applicant went to the UAE. She submits that the Tribunal’s findings are analogous to the findings in SZCJD v Minister for Immigration and Multicultural Affairs [2006] FCA 609 and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627, in that the information was given in response to questions of the Tribunal. Even if what triggered that questioning came from the protection visa application, it still falls within the ambit of s.424A(3)(b): SZCJD at [43]. This is the case even if the impetus for the questions were “specific and arose, naturally enough, from the applicant’s protection visa application” because the applicant “gave direct answers”: SZDPY at [35].
Ms Sirtes referred the Court to NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [57]-[61] per Gyles, Stone and Young JJ:
57 In SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 (‘SZCJD’), Heerey J said at [42] that the exception in s.424(3)(b) would apply to information which is affirmed by an applicant for the purposes of the review, even if the information might also have been obtained by the Tribunal from another source. His Honour referred to Moore J’s reasons in SZEEU at 242 [91], with whom Weinberg J at 254 [173] and Allsop J at 268 [264] agreed. In circumstances where the information is necessarily within the knowledge of the applicant himself, his Honour held at [43] that:
‘To conclude that an applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.’
There is no inconsistency between this approach and SZEEU: see also SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359 at [24]-[25].58 In SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627(‘SZDPY’), Kenny J considered the circumstances in which information provided by the applicant for review during the Tribunal hearing will fall within the exemption in s.424(3)(b). In that case, the appellant provided answers in response to questions posed by the Tribunal about his educational history. The appellant argued that the information was not subject to the exemption in s.424(3)(b) because it had been given in response to questions in the nature of ‘cross examination’ by the Tribunal. Kenny J rejected the appellant’s argument. Her Honour found that the Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application, and the appellant gave direct answers. Her Honour noted that the relevant information was simple and could easily be given in response to such questions. Kenny J held that the Full Court’s reasoning in SZEEU supports the proposition that where an applicant affirms a specific fact before the Tribunal, that information will be covered by s.424(3)(b): see SZEEU at 242 [91] per Moore J, at 214 [173] per Weinberg J, and at 268 [264] per Allsop J. Her Honour concluded at [35] that while the Tribunal had reference to the appellant’s visa application in discussing some aspects of the information with the appellant, the appellant ‘gave’ the Tribunal the relevant information at the Tribunal hearing.
59 These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s.424(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s.424(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.
60 In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the Tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing. The Tribunal’s questions arose naturally from the appellant’s application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s.424(3)(b) applies.
61 The appellant expressly stated the date of her arrival in Australia to the Tribunal at the hearing. I do not accept the appellant’s argument that s.424(3)(b) cannot apply because the date was given in response to a question posed by the Tribunal. The mere fact that the Tribunal elicited a response from the appellant, which confirmed an uncontentious detail of her application, does not render the information incapable of falling within the exemption in s.424(3)(b). It is not inconsistent with NAZY or SZEEU to hold that the exemption applies in such circumstances, given the nature of the information and the context in which it was communicated.
Ms Sirtes submits that the Tribunal asked the applicant to discuss his claims regarding events which occurred prior to his going to the UAE. The applicant did not cavil with the premise of the question. When the Tribunal then asked him to put the chronology of events in context, the applicant said that the events took place before he travelled abroad and then later he sought to change his answer. The Tribunal was entitled to object to the change in his answer and accept his initial evidence that the events occurred prior to him leaving for the UAE.
Ms Sirtes submits that it is reasonably plain from the Tribunal’s findings that the applicant made clear, through the course of the hearing, the sequences of events. While the Tribunal did state that the sequence was never made explicitly clear, it was clear that the applicant expressed that certain events had occurred before he travelled abroad and those events continued when he returned because he was recognised and people were still looking for him.The Tribunal decision records:
The Applicant claimed that the BJP and the RSS is very active throughout India and what happened to him occurred before and after he went to the UAE. He claimed that because he was known at both addresses, he went to Bombay and stayed there for 2 1/2 months with a friend before going to Japan where he sought refugee status but found that this was not possible.(CB 79.9)
The above observation of the Tribunal summarises the exchange during the Tribunal hearing as follows:
MR INDER: You claim that before you went to the UAE in 1992 your shops in vehicle were burnt. Can you tell me about this claim please?
THE INTERPRETER: At that time there was an election. He was …not reacting during that time. The opposition party, that is BJP, was of course in the Muslim in that area. They threaten through letters as harass other informations. They beat Muslims to stop this active work during the election. During the time he was enrolling more people than ever before and they were giving him warnings on the basis of that, of all that. Once they had … going through streets, the BJP suddenly came and attacked them with acid burns and other materials and he, himself claims that he has got on the back the marks of the acid where he was running away.
MR INDER: Now when was that?
THE INTERPRETER: This was before going to the Gulf and second time. All the acid burn was actually thrown at the year 2000.
MR INDER: So the rally was before you went and the acid attack was afterwards, is that right?
THE INTERPRETER: At the time of rioting.
[SZIJD]: Yes. Again I went to UAE and after I come back again being involved in the politics because they burn my shops, they burn my shops and small vehicle and everything they destroyed. Then after that again I left that area and I come back to …
MR INDER: Can I just stop you for a second. You say you were burnt with acid, when did that occur?
[SZIJD]: It is 1994, 2004.
MR INDER: So the acid attack was 2004. When were your shops burnt and the vehicle burnt?
[SZIJD]: That is when I come back from UAE.
MR INDER: So when, 2004, 2002, 2001, when were your shops and vehicles destroyed?
[SZIJD]: This is the same time, 2004.
MR INDER: That was also 2004.
[SZIJD]: Yes, everything is one time.
MR INDER: Okay. So can you tell me, well, let me go through that. You claim that after you returned from the UAE in 2000 there were no problems for the first few days but then they threw bombs at you on two occasions, which you narrowly escaped, and then you were hit by a bowl of acid. I took it that that was in 2000 but you are saying it was in 2004, is that right?
[SZIJD]: Yes. In 2000 I came back from, then after I started the business. To Karnataka.(Transcript, p.17-18)
Ms Sirtes submits that, at least to some exent, the applicant was claiming harm suffered prior to his departure to the UAE. However, the Tribunal did find that the applicant never applied for asylum when he was in the UAE. The fact that the information came from the applicant, in response to a specific question at the hearing, meant that it was open to the Tribunal to rely upon it. The Tribunal was not required to put the material to the applicant by reason of the exemption in s.424A(3)(b) of the Act.
When the Tribunal tried to ascertain when the acid attack took place, the applicant changed his answer and the Tribunal was ultimately not satisfied with that explanation due to the inconsistency that arose with the alternate explanation. Mr Sirtes submits that this inconsistency did not enliven s.424A. It was perfectly open to the Tribunal to ask the applicant about the sequence of his claim, even if it relied on material contained in the protection visa application. Ms Sirtes submits that this approach is supported by SZCJD, SZDPY and NBKT.
Ms Sirtes submits that there is no s.424A obligation which arises by reason of questioning an applicant, where the impetus for the questioning arises from the protection visa application. It is submitted that otherwise, a Tribunal would be required to report the entire contents of the protection visa application to an applicant before commencing the hearing because it would not be able to discuss the information with the applicant until that was done. The applicant’s passport was already before the Tribunal and it showed the applicant’s travels to and from India.
It is submitted that there is no inconsistency between the passport information and the information derived from questions the Tribunal asked because of the applicant’s passport. The passport information itself was information which the applicant gave for the purposes of review which therefore enlivened the s.424A(3)(b) exception. The answers the applicant gave to the Tribunal’s questions were similarly information given for the purposes of review. Ms Sirtes relies on the authorities referred to in NBKT which establish that specificity of such questions, even if they arise from the protection visa application, is not sufficient to enliven a s.424A obligation.
Conclusion
I agree with the submissions made by Ms Sirtes that the Tribunal’s findings were open to it by reason of the information given by the applicant at its hearing. I am satisfied that s.424A(3)(b) of the Act comes into effect in this matter and that there has been no failure to comply with s.424A(1). The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 25 July 2007
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