SZJZB v Minister for Immigration - [2008] FMCA 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJZB & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 848

MIGRATION – Application to review decision of Refugee Review Tribunal – Tribunal disavowed reliance on inconsistencies between oral evidence of husband and wife – whether failure to comply with s.424A of the Migration Act.

Migration Act 1958 (Cth) ss.36, 91R, 424A, 425

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126 MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 SZGSI and Another v Minister for Immigration & Citizenship and Another (2007) 160 FCR 506 SZHXK v Minister for Immigration and Citizenship [2007] FCA 759 SZICUv Minister for Immigration and Citizenship [2008] FCAFC 1 SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 VBAO v The Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 475
Applicants:	SZJZB, SZJZC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 24 of 2007

Judgment of:

Barnes FM

Hearing date:

5 May 2008

Date of Last Submission:

2 June 2008

Delivered at:

Sydney

Delivered on:

26 June 2008

REPRESENTATION

Applicants:

In person

Counsel for the Respondent:

Mr J Mitchell

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 24 of 2007

SZJZB, SZJZC

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNA.

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal handed down on 22 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants, who are husband and wife and citizens of India, arrived in Australia in May 2006 and applied for protection visas. Only the applicant husband made specific Convention claims and for convenience he is referred to hereafter as the applicant.
The applicant claimed to fear persecution on the basis of his membership of the Muslim Ittehed Majlish (MIM) Party in Hyderabad, and as a Muslim MIM supporter in a Hindu area of India. He claimed that he joined the MIM Party after he left school while working for his uncle, who was a local MIM leader in the area. He claimed that he was a full member of the party with close connections to political leaders of the MIM faction. He claimed that he had acted for an MIM candidate in local elections and motivated youths to work for him. He claimed that after the MIM candidate won the local election the opposition party (Telegu Desham Party (TDP)) understood "how vital my role was in winning the election for MIM candidate" and for this reason offered him the opportunity to join their party. He claimed that he turned down this offer. After acting on behalf of the MIM Party in another election he was again given the option of representing the TDP Party (or at least not representing the MIM Party). He claimed that he was informed that if he did not comply with this order “they” would kill him and his business would be attacked. He claimed that soon afterwards his shop (which was located in a Hindu area) was attacked and he was assaulted and admitted to hospital. His wife and family were also attacked. He claimed that he complained to the police but they did not “take” his complaint, being influenced by TDP members. He decided to leave the country as it was not safe for him anywhere in India.
The application was refused and the applicant sought review by the Tribunal. The applicant and his wife attended a Tribunal hearing.

The Tribunal decision

In its reasons for decision the Tribunal recorded the applicant's elaboration on his claims at the Tribunal hearing in relation to matters such as the date on which he joined the MIM, what he did to join the MIM, the policies and political agenda of the party, his activities with the party during various elections and the threat from the TDP. The Tribunal recorded that it put to the applicant its concerns about inconsistencies in his claims and his lack of knowledge despite his claims to be an active campaigner for the MIM. It also recorded a discussion with him about the absence of supporting documentary evidence in relation to his claims and that it put to him some apparent inconsistencies in relation to where he lived at various times and when he ceased to run his business and discussed the issue of possible relocation to another part of India.
The Tribunal also recorded oral evidence given by the applicant's wife, in particular in relation to where her husband was living and how they supported themselves.
After referring to independent country information in relation to the situation in India the Tribunal stated:
The Tribunal notes that the applicant's claims differed significantly between his written evidence provided with the application and the oral evidence given to the Tribunal. There were also significant differences in evidence of the applicant husband and applicant wife concerning important aspects of the claims. The Tribunal does not rely on such inconsistencies in reaching its decision, and does not consider these to be adverse to the applicant.
However the Tribunal went on to find that the applicant was not a credible witness referring to the fact that "many aspects of his oral evidence changed as the hearing progressed".
The Tribunal considered first the applicant's claims that he was a target because he was actively involved with the MIM Party. It did not accept that he was actively involved in the activities of the MIM having regard to the "extremely limited knowledge" he had displayed about the MIM in the course of the hearing. The Tribunal found that he was able to offer only a broad description of the party's political agenda and that he was unable to provide basic information about the party’s performance at elections. The Tribunal had regard to the fact that the applicant was unable to provide consistent information as to when he joined the party and unable to state what the procedure for joining the party was (other than to say a membership card was issued). The Tribunal also referred to the applicant's inability to state how many seats the party had won in local and state elections in 2004 and his lack of knowledge about the national elections, despite his claims of active involvement in all the elections and as a campaigner on behalf of the party. It was of the view that if the applicant had been actively involved as claimed "it would have been reasonable for him to display a greater degree of knowledge about the party and the party's performance at elections".
The Tribunal also had regard to the fact that the applicant was unable to explain why, if he had actively participated in all the elections since he joined the party, he was not targeted prior to the 2004 elections.

It found it significant that he did not provide a party membership card, despite his claim that he had been issued with such a card and had it in India and had presented a tax card which he brought with him from India to the Tribunal. It did not accept his explanation that he did not consider the party membership card to be important to his case. The Tribunal concluded that it could not be satisfied that the applicant was a member of the MIM Party.
Nonetheless, the Tribunal accepted that the applicant may have performed some work for the party, such as participating in rallies and providing some assistance with campaigning based on his oral evidence. However given his limited knowledge about the party it found that such work would have been minor.
Given that the Tribunal did not accept that the applicant was actively involved with the MIM and that his involvement with the party was minor, it did not consider that such minor involvement would have rendered the applicant a target due to his political involvement or opinion. It found that there was no real chance of his being persecuted for reason of his political opinion arising from his membership in or involvement with the MIM as claimed.
The Tribunal considered the possibility that the applicant may continue his involvement with the MIM in the future, maintaining the same level of activity within the party. It was not satisfied that this would give rise to a real chance of the applicant being persecuted given that his past involvement in party activities had been minor.
The Tribunal found that the applicant's claims with respect to the assault on him and his spouse and his business (because he refused to join the TDP Party) lacked details. It had regard to the fact that he initially claimed that he lost his business after an attack in January 2005, but that during the Tribunal hearing he had provided inconsistent evidence with respect to his business and when he ceased to run it (May 2006 or January 2005). The Tribunal did not accept his explanation for this inconsistency (that he meant the business he was in when he referred to May 2006 rather than the business he was actively pursuing). The Tribunal found that he had provided inconsistent oral evidence about his business activities in India and could not be satisfied that he ceased to operate the business in January 2005.
The Tribunal also expressed concern with the applicant's claim that he had evidence of the assault and hospitalisation "at home" but did not bring the evidence because he did not think it was important. The Tribunal stated:
Because of the totality of such concerns, the Tribunal cannot accept the applicant's description of events as accurate. The Tribunal does not accept that the applicant or his spouse were attacked, or that his business was ransacked.
The Tribunal then considered whether the threats received by the applicant of themselves constituted serious harm. It recorded his claim that he started receiving threats after the September 2004 elections because his party did well, but that he was not able to explain why the TDP did not approach him during the earlier elections in which he was involved. It also recorded that the applicant stated that he was not approached by the TDP or threatened by the TDP when in Hyderabad after January 2005. It found that his evidence suggested that he did not take the threats seriously. The Tribunal did not accept that such threats constituted serious harm within the meaning of s.91R of the Migration Act 1958 (Cth).
The Tribunal also found that the applicant’s conduct was not consistent with the existence of a well-founded fear of being persecuted or harmed, physically or otherwise. The Tribunal noted that while the applicant claimed the threats started after September 2004 and, that when his business was ransacked he was physically harmed in January 2005:
When asked where he resided, the applicant initially stated that he continued to reside at home and subsequently he stated that he moved to other areas and only spent two to three months in Hyderabad. The applicant explained the inconsistency by stating that he home was in Hyderabad but he lived elsewhere. The Tribunal does not accept that explanation. The Tribunal found the applicant to be evasive with respect to his evidence on this issue. The Tribunal does not accept that the applicant resided anywhere other than Hyderabad.
The Tribunal was of the view that if the applicant was fearful for the safety of his wife and mother as a result of the threats they would not have continued to reside in the family home in Hyderabad where they could be the target for such attackers. It did not accept that the applicant had a well-founded fear of persecution because of threats from the TDP directed at his wife or his mother.
The Tribunal also found the fact that it took more than a year for the applicant to depart India thereafter was not consistent with the actions of someone who held a well-founded fear as a result of threats directed at himself or his family or as a result of violence. It was not satisfied that he had a well-founded fear.
The Tribunal reiterated that it did not find the applicant to be a credible witness, that his evidence had changed in the course of the hearing, that it rejected his claim to have been actively involved with the MIM and hence found that it did not accept he had become a target because of such involvement. For those reasons it found that the threats and attack which flowed from the claimed involvement with the MIM did not occur.
The Tribunal also considered a claim by the applicant that he feared persecution because of his religion as a Muslim MIM supporter in a Hindu area. It noted that the applicant had not provided any details in relation to such claimed fear of persecution other than in connection with his involvement with the MIM. In the absence of any evidence the Tribunal was not satisfied that the applicant had a well-founded fear of persecution because of his religion.
While the Tribunal concluded that having regard to all the incidents reported by the applicant it was not satisfied that there was a real chance of him being persecuted for any Convention reason in the foreseeable future, it went on to consider the issue of relocation. It had regard to the applicant's evidence that the MIM and the TDP were only active in the state in which he had lived. It did not accept his claim that in other states he may be recognised and reported, because it did not accept that he had a high profile within the party. Hence the Tribunal found any persecution the applicant may face was localised and that he would be unlikely to face threats from the TDP if he lived in another state. The Tribunal found that it would be reasonable for the applicant to relocate to another part of India. It addressed the obstacles which he raised, including the claim that it would be difficult for him to move with his family (contrary to the evidence that he and his spouse had come to Australia, settled in the country and obtained employment) and referred to the fact that the applicant had experience in managing his own business (which was not location specific) and had been able to adapt well to a new environment in a new country despite language and cultural difficulties which were likely to be more pronounced than if he had relocated to another state in India. The Tribunal concluded that given the applicant's background, language, skills, qualifications and experience it would be reasonable for him to relocate to another part of India.
The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. As no specific Convention claims were made by or on behalf of the second applicant it followed that she did not meet the criteria for a protection visa.
The applicants sought review by application filed in this Court on 4 January 2007. They filed an amended application on 15 April 2008 and also filed written submissions.

Section 424A of the Migration Act

The first ground in the amended application is a contention that the Tribunal did not comply with s.424A of the Migration Act 1958 (Cth). The particulars to this ground quote aspects of the Tribunal findings: that the Tribunal noted that the applicant’s claims differed significantly between his written evidence provided with the application and the oral evidence given to the Tribunal hearing and that there were also significant differences in the evidence of the applicant husband and applicant wife concerning important aspects of the claims. The particulars refer to the fact that the Tribunal stated that it did not rely on such inconsistencies in reaching its decision and did not consider them. The particulars then refer to the applicant’s claim that he lost his business after the attack in January 2005 and the Tribunal finding that throughout the hearing the applicant gave inconsistent evidence with respect to his business, initially stating that he ran the business until May 2006 when he came to Australia and subsequently stating that his business was closed in January 2005. It appears to be contended that the Tribunal should have put such inconsistencies to the applicant for comment under s.424A.
It is clear that there is no obligation on the Tribunal to put to the applicant inconsistencies in the oral evidence he provided to the Tribunal at the hearing (such as in relation to his business) under s.424A of the Act. Insofar as it can be said that such inconsistencies constitute "information" for the purposes of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] – [18]) such material is within the exception in s.424A(3)(b) being information that the applicant gave for the purposes of the application for review.
Insofar as this ground takes issue with the Tribunal's reliance on independent country information in relation to the MIM, TDP and the situation in India, such material is also exempted from the s.424A(1) obligation by reason of s.424A(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).
As the particulars to this ground recognise, in its reasons for decision the Tribunal specifically disallowed any reliance upon inconsistencies between the applicant's written evidence in connection with his protection visa application and his oral evidence and inconsistencies between his oral evidence and that of his wife who did not make specific Convention claims in her own right, in reaching its decision.
The applicant submitted, however, that in its reasons for decision while the Tribunal stated that it did not rely on the inconsistencies between the applicant’s written and oral evidence and the differences in evidence between applicant husband and applicant wife, it had also observed that it did not find the applicant to be a credible witness and that the applicant’s evidence changed in the course of the hearing and had concluded that considering the evidence “as a whole” it was not satisfied that the applicant was a person to whom Australia had protection obligations. On this basis it was contended that the Tribunal was obliged to put such inconsistencies to the applicant pursuant to s.424A of the Migration Act. Reliance was placed on the decision of the Full Court of the Federal Court in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. In particular, it was contended that the evidence of the applicant wife had to be put to the applicant husband for comment consistent with the approach of the High Court in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294. In that respect it was observed that in SAAP their Honours had stated (at [70]) “… the language of s.424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section”.

In oral submissions the applicants reiterated that the inconsistencies in the evidence of the husband and wife should have been put to them for comment pursuant to s.424A of the Migration Act.
Counsel for the first respondent pointed out that in its decision the Tribunal specifically disavowed any reliance upon inconsistencies between the applicant’s written and oral evidence and inconsistencies between his evidence and that of his wife in its decision. It was contended that even if such appraised inconsistencies did form part of the reason for decision, such appraisals did not constitute information for the purposes of s.424A(1) and that the information upon which such appraisals were based did not form part of the reason for decision because the information did not in its terms constitute a denial undermining or rejecting the applicant’s claims. Reliance was placed on what was said in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] – [18]. On this basis it was contended that the Tribunal was not subject to the s.424A(1) obligations in respect of its appraisal of inconsistencies in the evidence before it or the information conveyed by that evidence.
Each of the parties was given (and took) the opportunity to file post-hearing submissions addressing in more detail issues that arose in the hearing in relation to whether or not the Tribunal had an obligation to put any aspect of the evidence of the applicant wife at the Tribunal hearing to the applicant husband. The first respondent reiterated the contention that the Tribunal findings about where the applicant had he lived in India (and about his credibility) were not based on any inconsistency between his evidence and that of his wife. Counsel for the first respondent acknowledged that the obligations in s.424A(1) have been said to be enlivened at the point when the Tribunal considers that certain information would form part of the reasons for decision (MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319). At the hearing the Tribunal questioned the applicant wife about her husband’s place of residence in India and clearly observed an inconsistency with her husband’s evidence in that regard.
However the respondent submitted that it should not be inferred from this questioning and the observations made by the Tribunal as to the inconsistency that at some point of time in the review process the Tribunal considered the inconsistencies or the information conveyed by the applicant wife’s testimony to be part of its reasons. This would be to engage in the speculative activity that the majority in SZBYR (at [22]) rejected. It was contended that the Court should not seek to unbundle the reasoning of the Tribunal (MZXBQ at [25]) or to speculate, in the absence of probative evidence, on the Tribunal’s thought processes at particular points in time during the course of the review.
It was also submitted for the first respondent that the relevant evidence of the applicant wife did not in its terms constitute a denial, undermining or rejection of the applicant’s claims to be a refugee and that it was not clear on the evidence before the Court that the Tribunal considered at any point that the testimony of the applicant wife of itself rendered the applicant husband’s claims patently false: SZBYR at [17] – [18], SZKLG at [32].
Moreover it was said to be clear that even if such inconsistency had formed part of the reason for decision the appraisal of the inconsistency and the credibility finding that resulted would not constitute information for the purpose of s.424A(1) (SZBYR at [17] – [18], MZXBQ at [27] because the Tribunal’s thought processes in respect to the applicant’s creditability also do not constitute information (VAF at [24]).
The first respondent also contended that even if the Tribunal did consider that the abovementioned inconsistencies, or the information conveyed by the applicant wife’s evidence, would form part of the reasons for decision, that had no impact on the ultimate decision. The Tribunal clearly disavowed any reliance on the inconsistency or the information conveyed by the applicant wife’s evidence. On this basis, even if a breach of s.424A(1) resulted from the Tribunal’s thought processes in respect to the applicant wife’s evidence during the course of the review, it was submitted that it had no impact on the Tribunal’s reasons and therefore no useful result could ensue from the grant of relief (SZBYR at [29], MZXBQ at [31]).
The applicant’s written submissions repeated the Tribunal account of evidence at the hearing. It was contended that the Tribunal found inconsistencies between the evidence of the husband and wife and that was the reason for rejecting the applicant’s claim. It was said that the decision was “influenced” by the evidence given by the wife and that the Tribunal should have given the applicant an opportunity to comment in writing on those inconsistencies.
Insofar as it is suggested that the Tribunal should have put the inconsistencies to the applicant in the course of the hearing, the Tribunal recorded that it asked the applicant why his wife stated he lived in Hyderabad and not elsewhere and to comment on her evidence about when the attack on the business occurred.
In relation to the s.424A claim it is notable that in SZGSI and Another v Minister for Immigration & Citizenship and Another (2007) 160 FCR 506 the Full Court of the Federal Court found that where there were two or more applicants for review, the Tribunal was obliged to provide particulars of information provided in the course of the Tribunal hearing by one applicant to the other applicant, if the relevant information had the characteristics enlivening the duty created by s.424A of the Act (see Marshall J at [45] – [57] with whom Moore and Finn JJ agreed on this issue). Their Honours were of the view that the word “applicant” in s.424A(3)(b) should be treated as a reference to each applicant individually, so that evidence given by another applicant was not within the exception to the obligation in s.424A(1). In reaching that conclusion Marshall J indicated that he no longer adhered to the contrary views he had expressed in MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126 (and see M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 to the same effect).
As his Honour stated in SZGSI at [56] provided the information met the description within s.424A(1) it did not matter that the information “might have been given in the presence of the co-applicant, for example, as in this case during the oral hearing before the Tribunal”. His Honour stated that “any actual unfairness to the applicant” was not, as Weinberg J pointed out in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [122], the “yardstick” for compliance with s.424A (and see Allsop J in SZEEU at [214]). I note that in SZGSI counsel for the Minister had conceded that the particular evidence of the second appellant was within s.424A(1). The only issue was the application of s.424A(3)(b).
On this basis, provided that the evidence of another applicant constituted information that would be the reason or part of the reason for affirming the decision under review, the Tribunal would be under an obligation to give an applicant particulars in writing of such evidence pursuant to s.424A of the Act, in the same way that the obligation would apply in relation to oral evidence provided by some other person to the Tribunal (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294). I note however that in SAAP the Tribunal had relied on the information obtained from the evidence of another person given at the Tribunal hearing in its decision as a reason to affirm the decision under review (see Gleeson CJ at [184]). No issue arose as to whether the evidence was “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Rather what was determined was that the effect of s.424A was mandatory and that the temporal effect was not limited to the pre-hearing stage (as the majority judgment pointed out in SZBYR at [13]).
In SZGSI the information in question was evidence given by the husband of a primary applicant who applied for a protection visa based on his membership of his wife’s family unit. The wife claimed to be a member of an underground Christian group. Both the husband and wife attended a Tribunal hearing. In its reasons for decision, in finding that it was not satisfied that the wife would face any serious harm as a result of her adherence to Christianity, the Tribunal stated that it found of particular relevance the fact that the husband who shared her faith and practices (but not her special role) had on his own evidence returned to China voluntarily and had not suffered any harm as a result of his religion and had no refugee claims with respect to the future. In that case counsel for the Minister conceded that the information concerning the husband’s return to China voluntarily after travelling to Australia was information on which the decision concerning the wife was based in part and was part of the reason for affirming the decision to refuse the wife a protection visa. On this basis the Full Court found that there was a failure by the Tribunal to comply with s.424A(1). (See Moore J at [2] – [4]). No such concession was made in the present case.
Hence in this instance it is necessary to consider whether the obligations in s.424A(1) of the Act arose in relation to any aspect of the evidence of the applicant wife at the Tribunal hearing or the differences between her evidence and that of her husband. In that respect the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
The issue in this case arises in the context of the Tribunal’s consideration of the evidence at the hearing, in particular as to where the husband lived in India prior to coming to Australia. The applicant husband had stated in his application for a protection visa that he was born and had lived from the date of his birth until May 2006 (when he departed India) at a particular address in Hyderabad in India.
According to the Tribunal at the commencement of the hearing the applicant husband gave the Tribunal his address in Hyderabad and said that he had lived at that address until coming to Australia in May 2006. However after he gave evidence of an attack on his shop in January 2005, as a result of which he was injured and hospitalised, the Tribunal asked the applicant what steps he undertook to leave India. He indicated that he made enquiries and came to Australia. The Tribunal noted that he came to Australia in May 2006 and asked him what happened between January 2005 and May 2006. The applicant was recorded as saying that he went to Madras, Bombay and Delhi to make enquiries and investigate how to go overseas but also “that he continued to live at his home”. When the applicant indicated he was scared that he might be attacked again the Tribunal asked him why he continued to live at his home and the applicant was recorded as saying that “during that period he was only in Hyderabad for two or three months.”
The Tribunal recorded that subsequently it pointed out to the applicant that in the beginning of the hearing it had asked him about his residence in India and he had said that he continued to live at his address in Hyderabad. The applicant explained that he did, but that as there is no embassy in Hyderabad he went to other cities to make enquiries, staying with his uncle in Bombay for a couple of months.
The Tribunal recorded that when it asked the applicant how much time he spent at his home in Hyderabad between January 2005 and May 2006 he said it was two to three months. It again asked the applicant why he earlier stated that “until he came to Australia he lived at his own home while he was now stating that he did not live at home”. The applicant was recorded as saying that he spent about two to three months at his home before coming to Australia, that his house was there, but he was just visiting other places.
Subsequently the Tribunal took oral evidence from the applicant wife. It recorded that when it asked her where her husband was living from January 2005 she stated that he lived in Hyderabad and “he did not live anywhere else before coming to Australia”. She also said (contrary to his earlier evidence) that the business was attacked in September 2004 and that her husband closed the business after that attack.
The Tribunal recorded that after the wife had given evidence it asked the husband why his spouse had stated he lived in Hyderabad and did not live anywhere else and that he said he had an uncle in Mumbai and he made trips there to enquire about coming to Australia. The Tribunal recorded that it noted that he had earlier said that he spent only two months in Hyderabad while his wife stated he continued to live there and “the applicant said that his wife meant that he lived in Hyderabad but travelled to other areas”. It also put the wife’s evidence about the time of the attack on the business to him. He suggested his wife may have a bad memory or may have forgotten it was in January 2005.
As set out above, the Tribunal commenced its findings and reasons by stating that while there was significant differences in evidence between the applicant husband and applicant wife concerning important aspects of the claims it did not rely on such inconsistencies in reaching its decision and did not consider them to be adverse to the applicant. It went on to state that it found the applicant husband not to be a credible witness having regard to changes in many aspects of his oral evidence as the hearing progressed. Relevantly, in relation to the issue of where he lived, the Tribunal found that the applicant’s conduct was not consistent with the existence of a well-founded fear of being persecuted. It noted that the applicant had claimed that threats started after the September 2004 elections and that he was physically harmed in January 2005 and that his business was ransacked. However when asked where he lived the applicant had “initially stated that he continued to reside at home and subsequently he stated that he moved to other areas and only spent two to three months in Hyderabad.” The Tribunal did not accept the applicant’s explanation for this “inconsistency” that his home was in Hyderabad but he lived elsewhere, finding him to be evasive with respect to his evidence on this issue. Hence the Tribunal did not accept that the applicant resided anywhere other than Hyderabad before leaving India.
In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 the High Court considered the scope of the obligation in s.424A(1) of the Act. As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ pointed out at [15] s.424A “does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’”. Moreover at [17] their Honours stated “The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal’s published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s.36(1) of the Act, being the provision under which the appellants sought their protection visa. The ‘reason, or a part of the reason, for affirming the decision that is under review’ was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.”
In SZBYR it was contended that the information subject to the obligation in s.424A consisted of passages in a statutory declaration of the applicant provided in support of a protection visa application. Their Honours stated that it was difficult to see why such passages would themselves be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review observing “Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review” (at [17]).
Their Honours also referred with approval to what was said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [477] about the scope of the word “information” in indicating that, however broadly “information” be defined its meaning in the context of s.424A “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence” (at [18]).
On this basis, while the first respondent is correct to contend that any appraisal of inconsistency between evidence of the applicant and his wife would not constitute information for the purposes of s.424A(1) and that the Tribunal’s thought processes in respect to the applicant’s credibility did not constitute information (VAF at [24]), it is still necessary to consider whether any aspect of the evidence given by the wife (as distinct from inconsistencies between her evidence and that of her husband) (see SZBYR at [18]) was such as to give rise to the obligation under s.424A(1).
In SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578 the Full Court of the Federal Court considered whether a s.424A letter had to be sent prior to the s.425 hearing in relation to material which demonstrated that on an earlier entry to Australia the applicant had applied for protection, falsely claiming to fear persecution based on past events in China (and not on subsequent events as he later claimed). The Court found no basis for imposing such a temporal requirement (at ([34]) suggesting that the timing of a s.424A notice should be left to the discretion of the Tribunal (at [36]). In the course of reaching this conclusion the Court observed that the purpose of s.424A was to ensure that the overall decision-making process was fair and that the s.425 hearing was only a part of that process and that the majority in SZBYR at [17] held that the “s.424A process must occur in advance of, and independently of the Tribunal’s reasoning process”.
The Court in SZKLG discussed possible approaches to the material in question observing that one decision-maker might have considered the existence of an earlier (but apparently abandoned) protection visa application on different grounds “demonstrated, of itself, that the appellant’s current application could not be accepted”, while another “might have considered that he or she could not evaluate the material at all until the appellant had been heard” (at [33]). Their Honours continued:
The test for the purposes of s 424A is not based upon whether the material in question suggests a particular decision. The test depends upon the Tribunal’s “consideration”.

Relevantly their Honours expressed the view that the word “considers” in s.424A(1)(a) bears the meaning “Be of the opinion that” (at [33]) and continued “…The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision.” Their Honours referred to the difficulties of assuming that the Tribunal had formed such an opinion in the absence of evidence to that effect.
However what was in issue in SZKLG was not whether the Tribunal in question had to send a s.424A letter in relation to information, but when it had to be sent. The issue was whether the Tribunal had to put information it considered would be part of the reason for its decision to the applicant prior to the hearing. In that case the Tribunal sent a s.424A letter putting the information to the appellant after the Tribunal hearing. The Full Court did not have to determine if and when the Tribunal had formed the requisite opinion or what the position would be in the absence of any s.424A letter.
In SZICUv Minister for Immigration and Citizenship [2008] FCAFC 1 the Full Court again referred to what was said by the High Court in SZBYR at [17] – [18] (in the context of considering whether the Tribunal was obliged to provide particulars to the appellant of information that his passport showed that he had left his home country legally on a passport issued in his own name). The information in question had been provided in the appellant’s visa application. However their Honours indicated that it was not necessary in that case to enter upon the question as to how far “a court can or should enter upon a consideration of the Tribunal’s actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to making that decision had arisen” (at [25]). The Court found that the information in the passport in question was quite neutral and did not in terms contain a rejection, denial or undermining of the applicant’s claim to be a person to whom Australia owed protection obligations as considered by the High Court in SZBYR at [17] and that what undermined the appellant’s claim was not conveyed by the passport as such, but rather by country information which the Tribunal was not obliged to put to the applicant because of s.424A(3)(a). Their Honours stated (at [26]) that “The relevant “information” for s 424A(1) purposes, as SZBYR … at [18] indicates, is not to be found in disbeliefs arising from a process of reasoning applied to the evidence. If it is to be found in this matter it must be in the text of the passport itself. It is not.”
After referring to this line of authority Heerey J in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 indicated that in the case before him the question of how far it was necessary to have regard to the Tribunal’s actual reasons for decision did arise. In that case a Federal Magistrate had relied on an examination of the Tribunal’s reasons in concluding that an issue the Tribunal had not mentioned was not considered by it to be the reason or part of the reason for affirming the decision under review. The decision of Heerey J on appeal from the Federal Magistrates Court is binding on this Court (see SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 at [42] per Black CJ and Allsop J)
Heerey J found at [22] that “SZBYR’s explicit rejection of reference to ‘the reasoning process of the tribunal’ or ‘the tribunal’s published reasons’ or ‘the Tribunal’s particular reasoning on the facts of the case’ in determining the applicability of s.424A impliedly overrules a substantial body of authority in the Federal Court” (see for example SZEEU per Allsop J at [204], Moore J at [22] and Weinberg J at [155]). His Honour also suggested that in SZBYR at [22] the majority had rejected the concept of “unbundling” the reasons for affirmation of the delegate’s decision by reference to the reasons of the Tribunal in context as had been discussed by Allsop J in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [99] and in SZEEU at [208].
Heerey J pointed out that while in both Paul and VAF there was an examination of the Tribunal reasons in the course of the court determining “the reason or part of the reason,” SZBYR (in particular at [17] of the majority judgment) “essentially says that a court must assess ‘the information’ in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal” (at [27]). His Honour expressed the view (at [28]) that the meaning conveyed by s.424A(1)(a) was that :“… the Tribunal considers that if the information is true … it would be the reason, or a part of the reason, for affirming the decision…. Ex hypothese, the Tribunal does not know whether the information is true or not. That is the point of giving the applicant the opportunity to rebut, qualify or explain the information. That is why subsequent use made by the Tribunal in its reasons, on the basis that the information is true, is no guide to whether the Tribunal at the earlier point in time should or should not have applied s 424A.”
After noting that s.424A(1) speaks of information that “would” be the reason his Honour suggested that this was another indication that “information merely going to credibility is not within the section”, observing that lack of credibility in itself “does not necessarily involve rejection, denial or undermining of an applicant’s claims” (at [29]).
On this basis it is necessary to consider whether the information provided by the applicant’s wife in the Tribunal hearing, in particular that the husband lived in Hyderabad after January 2005 and did not live anywhere else before coming to Australia, if true would be the reason or part of the reason for affirming the decision to refuse the applicant’s protection visa application.
Had there not been other evidence to the same effect from the applicant before the Tribunal at this time, it may well be that a statement from another person that the applicant continued to live in the place where he allegedly claimed to fear experiencing harm would be such that, if true, it would “undermine” his claim to have a well-founded fear of persecution. However the Tribunal had the same information provided to it by the applicant at the commencement of the Tribunal hearing – that he had lived at his address in Hyderabad until coming to Australia in May 2006. He subsequently said he moved to other areas and only spent two to three months in Hyderabad. Any reliance that might thereafter be placed by the Tribunal on what the wife said later on the same issue would not necessarily be because of the statements of fact contained in her evidence as such, but rather because of inconsistency between what she said and the applicant’s changed evidence to the Tribunal to the effect that he had spent only two to three months in Hyderabad after January 2005 (and see SZKLG at [33]). Similarly the wife’s evidence as to the date when the business was attacked would be relevant because of its inconsistency with the applicant’s evidence.
On the approach taken by Heerey J in MZXBQ any appraisal of such inconsistency in evidence would go to the applicant’s credibility, rather than being of itself such as to undermine the applicant’s claims to have a well-founded fear of persecution as claimed. In those circumstances it cannot be said that the questioning of the applicant wife and her answers would be of dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. As the first respondent submitted, consistent with the approach taken in SZBYR at [17] – [18] and MZXBQ at [27], the appraisal of inconsistency and the credibility finding that resulted do not constitute information for the purposes of s.424A(1). Nor do the Tribunal’s thought processes in respect of the applicant’s credibility (see VAF at [24]).
Moreover, if in some circumstances it is appropriate to have regard to the Tribunal reasons for decision in determining whether a s.424A(1) obligation arose at a prior time (see SZEEU and SZICU at [25]), not only did the Tribunal expressly disavow any reliance on the differences in the evidence of the applicant husband and the applicant wife, but in the particular circumstances of this case there were also significant differences in the evidence of the applicant husband himself which provided a basis (and hence could be said to be part of the reason) for the Tribunal’s failure to accept that the applicant resided anywhere other than Hyderabad and supported its view that the applicant’s conduct was not consistent with the existence of a well-founded fear of persecution. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 the High Court stated that s.424A did not apply to information consisting of a letter about the applicant’s claims received by the Department because in its findings and reasons the Tribunal stated that it “gave no weight” to the letter. The High Court stated at [12]:
As for s 424A, it is enough to notice that that provision is directed to "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The Tribunal said, in its reasons, that it did not act on the letter or the information it contained. That is reason enough to conclude that s 424A was not engaged.
(See SZHXK v Minister for Immigration and Citizenship [2007] FCA 759 at [18] to the same effect).
This provides an alternative basis for concluding that s.424A did not apply to the wife’s evidence at the hearing. I also note for completeness that, as the reasons for decision indicate, the Tribunal made known to the applicant the “substance” of what his wife said at the hearing relevant to the issues for determination. No failure to comply with s.425 in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 or a lack of procedural fairness in the manner considered in VEAL is apparent.
No failure to comply with s.424A(1) has been established in relation to the applicant wife’s evidence.
As to inconsistencies between the applicant’s written and oral evidence, the Tribunal did observe that the applicant’s claims differed significantly between his written evidence in support of his protection visa application and his oral evidence to the Tribunal. Even if its express disavowal of reliance on such inconsistencies and finding that it did not consider them to be adverse to the applicant is not dispositive of the s.424A claim, on the basis that the obligation under s.424A is assessed independently and in advance of the Tribunal’s reasoning process in its reasons for decision (see SZKLG and SZICU), the information in the protection visa application and accompanying statement did not in terms contain a rejection, denial or undermining of the applicant’s claim to be a person to whom Australia owed protection obligations (SZBYR at [17]) and the Tribunal appraisal of inconsistencies does not constitute “information” in s.424A(1) (VAF at 477). The Tribunal is not obliged “to give advance written notice … of each step in its prospective reasoning process” (SZBYR at [18]). No failure to comply with s.424A(1) has been established.

Whether error of law

Ground 2 in the amended application is that the Tribunal "rejected the applicant's claim on the basis of wrong legal criteria which is an error of law".
The particulars to this ground refer to Tribunal findings that it would have been reasonable for the applicant to display a greater degree of knowledge about the MIM and the MIM's performance at elections, that it had regard to the fact that the applicant failed to provide a party membership card and found that there was no real chance of his being persecuted for reasons of political opinion arising from his membership in or minor involvement with the MIM. The particulars also refer to the applicant's evidence suggesting that he was threatened after September 2004 and before January 2005 and that he was not threatened at any other time and the Tribunal findings that this suggested that he did not take the threats seriously and that in those circumstances it could not accept that the threats constituted serious harm within the meaning of s.91R.
The final particular is as follows: “the high profile issue in the party (CB 123, para 3)”. This appears to be a reference to the Tribunal’s rejection of the applicant’s claim that he may be recognised and reported in other states in India on the basis that it did not accept that he had a high profile in the MIM (which, like the TDP, was said by the applicant to be “active” only in his home state). This finding was part of the Tribunal’s consideration of relocation.
It was contended in written submissions that the Tribunal was wrong in expecting it to be reasonable for the applicant to have a greater degree of knowledge about the party “which is very unusual and irrelevant with the legal definition of refugee”. It was said that the Tribunal should have given an example as to what greater degree of knowledge was required. It was submitted that the Tribunal wrongly observed that a “level of involvement” was a legal requirement and that it should have found that the applicant “has fear of harm or not for his political belief”. It was also contended that the Tribunal “wrongly mentioned that the applicant did not take threats seriously and whether the applicant did not take threat seriously so the threats did not constitute serious harm within the meaning of s.91R of the Act. But s.91R does not say how that threat should be taken, seriously or causiously [sic]”.
Insofar as the applicant takes issue with the Tribunal's appraisal of the material before it, factual findings of this nature are matters for the Tribunal. It has not been established that the Tribunal made an error of law in relation to its consideration of the applicant's claims. It clearly referred to the relevant concepts in the Refugee Convention and assessed the applicant's claims to have a well-founded fear of persecution by reference to past persecution and in light of the requirements of the Migration Act. Such an approach was appropriate and does not establish that the Tribunal applied the wrong legal criteria (see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 575 – 577).
It was open to the Tribunal in considering the applicant’s claimed involvement with the MIM to have regard to matters such as his level of knowledge about the party and to form a view about whether the level of knowledge demonstrated was consistent with his claimed involvement. It was also open to it to have regard to the absence of supporting evidence, such as a party membership card. It did not find that it could not be satisfied of the applicant’s membership solely on the basis of the absence of such a card. It was also open to it to reach the conclusion it did based on what it found to be the applicant’s minor involvement with the MIM.
Insofar as it is contended that the Tribunal erred in appraising the applicant's knowledge of the MIM and that there was no basis for the Tribunal to say that he did not have the requisite degree of knowledge for a member of the party, it is apparent from the Tribunal reasons for decision (the only record of what occurred in the Tribunal hearing) that the Tribunal asked the applicant various questions about his knowledge of how one joined the MIM, the policies of the MIM, the party's political agenda and the results of elections. Such material provided a basis for the Tribunal's rejection of the applicant's claim to have been actively involved in the political activities of the party and its finding that if he was involved his work would have been minor. The Tribunal did not simply reject all of the applicant’s claims on the basis of his lack of knowledge.
In addressing the applicant’s claim to be a member of the MIM Party the Tribunal had regard not only to his lack of knowledge but also to his failure to explain why he was not targeted prior to the 2004 elections and his failure to produce a party membership card (when he had presented a tax card). Given the nature of the applicant’s knowledge and the absence of corroborative evidence the Tribunal's rejection of the applicant's claim to be a member of the MIM Party was a finding that was open to it on the material before it for the reasons that it gave. I note that the delegate of the first respondent had noted the absence of documentation in support of the applicant’s claim (such as a hospital report, police report, newspaper articles or a statement of his membership of the MIM) and that the applicant had stated in his application that he would be providing supporting documents at a later date.
In relation to the Tribunal finding that the claimed threats between September 2004 and January 2005 did not constitute serious harm, s.91R(1)(b) requires persecution to involve serious harm to the person. Subsection 91R(2) gives instances of what constitutes serious harm for the purposes of s.91R(1)(b). It was open to the Tribunal to have regard to the fact that the applicant's evidence was such as to indicate that he did not take the threats seriously in determining whether such threats were of such significance as to amount to serious harm within 91R(1).
The Tribunal's finding that the threats received by the applicant did not constitute serious harm was open to it. It has not been established that it was based on any misconception. The Tribunal was not satisfied that the past threats constituted serious harm in light of matters including (but not limited to) the applicant's own evidence that he did not take the threats seriously. It also had regard to the lack of any explanation for the absence of threats before January 2004 (in particular during earlier elections) and the fact that the claimed threats ceased in January 2005. This assessment was not based solely on the Tribunal’s view that the applicant’s evidence suggested that he did not take the threats seriously. Moreover, it considered whether it was satisfied that there was a real chance of the applicant being persecuted for any Convention reason in the future. No error has been established in this approach (see VBAO v The Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 475 at [3]).
It is apparent from the Tribunal reasons for decision that it initially considered the claim that the applicant was threatened on the basis that if such threats had occurred as claimed (that is after September 2004 and before January 2005) it was not satisfied that such threats constituted serious harm. After consideration of all of the evidence before it and based on its findings as to lack of credibility and rejection of the applicant's claim that he was “actively involved” with the MIM and became a target because of that, the Tribunal found that the claims, threats and the attack which flowed from the involvement with the MIM did not occur. Nonetheless the Tribunal went on to consider the reasonableness of relocation on the basis of the applicant's “minor” involvement in MIM Party activities.
No jurisdictional error is established in the manner contended for in ground 2 of the amended application. It has not been established that the Tribunal rejected the applicant’s claim on the basis of “wrong legal criteria” or otherwise made an error of law.

In oral submissions the applicant and his wife reiterated concerns addressed in the amended application, in particular the contention that there was a failure to comply with s.424A of the Act as discussed above.
The applicant’s wife also contended that she was not permitted to explain her history and that the Tribunal did not explain the difference between her explanations and those of her husband. Insofar as this takes issue with the conduct of the Tribunal hearing, there is no evidence before the Court in support of a contention that the applicant wife was not permitted to explain her own history in such a manner as to constitute jurisdictional error. It is apparent from the material before the Court that the applicant wife completed a Part D visa application form (for a member of the family unit who does not have his or her own claims to be a refugee). The Tribunal's account of what occurred in the Tribunal hearing does indicate that the applicant wife was questioned in relation to aspects of her husband's evidence. There is no evidence that she sought to raise specific Convention claims in her own right. The applicant did contend that he was fearful for the safety of his wife and mother as a result of threats. However, the Tribunal considered and rejected the claim that the applicant had a well-founded fear of persecution because of threats from the TDP directed at his wife or at his mother.
There is also nothing in the material before the Court to indicate that the Tribunal failed to comply with s.425 of the Migration Act insofar as it was necessary for it to put to the applicants dispositive issues in the course of the Tribunal hearing consistent with the approach in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Finally, the applicant took issue with the Tribunal findings in relation to relocation, on the basis that his life would always be in danger. However merits review is not available in this Court. There is nothing in the material before the Court to indicate that the Tribunal fell into error in the manner in which it dealt with relocation.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 26 June 2008