SZKAK v Minister for Immigration

[2007] FMCA 1078

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1078

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with its obligations under s.424A of the Migration Act 1958 (Cth) – whether the terms of the Refugee Review Tribunal’s s.424A letter indicated prejudgment – whether the Refugee Review Tribunal considered an irrelevant consideration.

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

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for immigration [2001] HCA 30

Applicant: SZKAK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG104 of 2007

Judgment of: Emmett FM

Hearing date: 2 July 2007

Date of last submission: 2 July 2007

Delivered at: Sydney

Delivered on: 11 July 2007

REPRESENTATION

Solicitors for the Applicant: Mr A. Silva, Silva Solicitors

Solicitors for the Respondent: Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG104 of 2007

SZKAK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 November 2006 and handed down on

   
   

   19 December 2006.

2. The applicant was born on 14 February 1984 and claims to be from India and of Punjabi ethnicity and Sikh faith (“the Applicant”).

3. On 18 May 2006, the Applicant arrived in Australia, having legally departed from India on a passport issued in his own name and a visa issued in New Delhi on 27 March 2006.

4. On 13 June 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.

5. In his protection visa application, the Applicant claimed that he feared persecution because of his father’s political support of the Mann Party in Punjab state politics and, because of his own involvement in the Sikh Student Federation.

6. On 8 July 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

7. On 4 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a written statement together with country information in support of the review application. On 19 December 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 11 January 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

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

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

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

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

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

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

The Tribunal proceeding

1. On 4 September 2006, the Tribunal invited the Applicant to come to a hearing on 3 October 2006. The Applicant attended that hearing and gave oral evidence.

2. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.

3. The claims made by the Applicant before the Tribunal and the Tribunal’s decision are accurately summarised by the First Respondent in written submissions as follows:

   “7The applicant claimed protection on the basis of his father’s involvement with the Mann political party, and on the basis of suspicion by police that the applicant himself was involved with the Mann party due to the applicant’s affiliation with the Sikh Students Foundation.

   8.The applicant claimed to have been detained and tortured by Punjab police on three occasions in 2003. The applicant claims that his house was attacked by unknown people in 2003 when he was not home. The house was set alight. The applicant claims to have been arrested in March 2004 by police, following a political meeting.

   9.The RRT was unable to be satisfied that the applicant was a person to whom Australia has protection obligations under the refugees Convention.

   9.1The RRT found the applicant was ‘not a reliable witness’, it had ‘serious concerns about his credibility’ and did not accept ‘as adequate the applicant’s explanation that he was ‘upset’ to justify the discrepancies between his claims in his PVA and his oral evidence given at the hearing.

   9.2The RRT found that the information supplied by the applicant in response to the RRT’s s424A letters to be only vague restatements of the facts. The RRT found the evidence supplied by the applicant’s witnesses was also vague and general, and even if true, failed to prove the applicant’s claims.

   9.3The country information relied on by the RRT found that ‘there was considerable violence by and against Sikh separatists in the 80s and 90s (13), but this had now ended. The applicant claimed to be involved in the activities of the Mann party, however, he showed a lack of knowledge about the ‘various arrests of his alleged party leader’ and the occurrence of national elections. When pressed by the RRT on the issue of national elections, the applicant claimed he could not vote in 2004 because he was in detention, however, he later claimed he was detained only for one night.

   9.4The applicant was unable to provide the RRT adequate information about the dates of his periods of detention and nature of his injuries he claimed to have suffered because of having been beaten. Without further detail, and in light of the country information, the RRT could not accept the applicant was arrested, detained or beaten because of his involvement with the Mann Party.

   9.5The RRT rejected the applicant’s claim that he fled to Uttar Pradesh because he was sought by authorities. The RRT found the applicant lived in both Punjab and Uttar Pradesh for significant periods of time without incident and, therefore, did not accept that he was in hiding.

   9.6The RRT found that it was plausible that the applicant’s father was involved with the Mann Party and that he suffered harassment because of this. The RRT rejected, however, that the applicant was involved with the Mann Party or was persecuted because of his father’s involvement.

   9.7The RRT was not satisfied that there was a real chance that the applicant would be persecuted for a Convention reasons if he were to return to India.”

The proceeding before this Court

1. The Applicant was represented by, Mr Silva, solicitor, before this Court. By consent, the Applicant was granted leave to file in Court and rely upon a further amended application that identified the following ground:

   “The Tribunal made jurisdictional error in that it took irrelevant matters into consideration while making the decision.

   Particulars

   The Tribunal took into account the content of the anonymous letter in making the decision which it should not have. The Tribunal received the letter on 29/09/06. The hearing was on 3/10/06. The authorship of the letter has not been confirmed by 3/10/06 and the Tribunal told the Applicant about the letter at the hearing, saying that a letter has been received, disclosed its contents and asked for a response. What is not open for the Tribunal is to put on a s424A notice about this letter even before confirming whether it was a genuine letter. By this notice the Tribunal acknowledges that it has taken that letter into its consideration. It goes even further saying that it may be part of the reason for refusal.”

2. Mr Silva confirmed that this was the only ground upon which the Applicant relied and other grounds in earlier applications were now abandoned.

Ground - The Tribunal made jurisdictional error in that it took irrelevant matters into consideration while making the decision.

1. At the heart of the Applicant’s contention in respect of this ground is an allegation that the Tribunal had regard to an anonymous letter received by it which was disparaging of the Applicant and by doing so took into account an irrelevant matter in the making of its decision, resulting in jurisdictional error.

2. In support of this contention, the Applicant referred to the terms of a letter sent by the Tribunal dated 3 October 2006 in which the Tribunal said, inter alia, the following:

   “At the Tribunal hearing held on 3 October 2006, you were given information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

   The information you were given is as follows:

   …

   2) That the Tribunal has received a letter from a person who makes the following allegations: that you are a serial liar and thief; that you committed many crimes in Punjab; that you shot village people and killed two people.

   As explained at the hearing, this information is relevant because it suggests that you have not been truthful in your claims, you are not a credible witness, and that your account may have been exaggerated or fabricated to support your claim for a Protection Visa.

   You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 26 October 2006.”

3. On 26 October 2006, the Tribunal received a response from the Applicant to the letter dated 3 October 2006 in which the Applicant denied the veracity of the contents of the letter referred to.

4. Mr Silva referred the Court to the following reference in the Tribunal’s decision in the Claims and Evidence section of its decision in relation to the letter dated 29 September 2006. The extract from the decision is as follows:

   “On 29 September 2006, the Tribunal received a letter stating that the applicant “is a serial liar and thief. In Punjab he committed to many crime. One time he shot village people. Then kill 2 people. His refugee stay should be refused.” The letter was signed, dated 14 September 2006, and an address was given. The Tribunal wrote to the writer of the letter on 3 October 2006, asking him to contact the Tribunal in order to give evidence. The letter was returned to the tribunal unclaimed and no further information was received.”

5. The Applicant tendered a transcript of the hearing before the Tribunal which was admitted by consent and marked Exhibit 1A.

6. The transcript discloses that the contents of the letter dated 29 September 2006 were read to the Applicant by the Tribunal member at the hearing and the Applicant was invited to make any comment. The transcript also discloses that the Applicant denied the allegations made in the letter, to which the Tribunal member responded, “Alright. You’ll have a chance to comment on that, but I am obliged to tell you that the tribunal has received a letter making these accusations against you.” Further on in the transcript, the Tribunal told the Applicant that he would have a further opportunity post hearing to address the Tribunal’s concerns arising from that letter.  

7. Mr Silva submits that the fact that the letter dated 29 September 2006 was mentioned in the Tribunal’s s.424A letter dated 3 October 2006, leads to the inference that the Tribunal had regard to that material in circumstances where such information was irrelevant.

8. In support of that submission, Mr Silva referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630 at [47] where the Full Court of the Federal Court of Australia stated the following:

   “The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”

9. Mr Silva also referred the Court to ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (“Applicant VEAL”) at [17] where the High Court of Australia in a joint judgment stated the following:

   “It follows that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.”

10. Mr Silva also referred the Court to Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for immigration [2001] HCA 30 at [80] where the High Court of Australia stated:

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.”

11. Mr Silva submitted that the Tribunal should have put to one side its consideration of the contents of the letter dated 29 September 2006 as not credible. In Applicant VEAL,  the High Court said that a decision maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made.

12. Simply because the Tribunal decided to mention the letter dated 29 September 2006 in its s.424A(1) letter dated 3 October 2006 does not, of itself, lead to the inference that the Tribunal was satisfied that the evidence was credible, relevant or significant. A fair reading of the Tribunal’s decision makes it clear that, having considered the Applicant’s response to the s.424A(1) letter, to the extent that the Tribunal may have regarded the information in the letter as credible, relevant or significant prior to the Applicant’s response, it no longer held that view.

13. Moreover, a fair reading of the Tribunal’s decision makes it clear that, until the Applicant had responded, the Tribunal did not necessarily regard the information as not credible, not relevant, or of so little significance that it was not required to put the contents to the Applicant for comment.

14. Accordingly, I am not persuaded that the Tribunal took into account an irrelevant consideration.

Whether the Tribunal s.424A letter suggested prejudgment

1. Mr Silva also submits that the language used by the Tribunal in its s.424A letter dated 3 October 2006 leads to the clear inference that the Tribunal regarded the contents of that letter as part of the reason for affirming the decision under review.

2. The language used by the Tribunal in the opening paragraph of its 424A letter stated that “the information would be the reason or part of the reason for deciding that the Applicant is not entitled to a protection visa”.

3. The First Respondent referred the Court to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17] where the High Court of Australia stated the following:

   “The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.”

4. A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood that it was writing the letter dated 3 October 2006 in pursuant to its obligation under s.424A(1) of the Act. The language of s.424A(1) of the Act uses the words “would be”. In the circumstances, the use of those words by the Tribunal in the s.424A letter, in context, do not suggest that the Tribunal was intending to convey some predetermination or prejudgment of the issues raised in s.424A the letter.

5. Rather, the Tribunal’s use of the words “would be” is in accordance with the use referred to by the High Court in SZBYR at [17] where the High Court stated as follows:

   “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 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.”

6. In accordance with the principle espoused by the High Court in SZBYR, the Tribunal is required to determine in advance, and independently, of the Tribunal’s particular reasoning on the facts of the case whether there is information that would be the reason or part of the reason for the tribunal affirming the decision under review.

7. Accordingly, there is no suggestion of prejudgment on the part of the Tribunal where it has done no more than use the language of s.424A(1) of the Act at the commencement of its s.424A latter.

1. In any event, the First Respondent submitted that a fair reading of the decision makes it clear that the Tribunal did not refer at all in the Findings and Reasons section of its decision to that letter. That is so.

2. A fair reading of the Tribunal’s decision suggests that the Tribunal member accepted the Applicant’s response to its letter dated 3 October 2006 in which the Applicant denied the allegations about the Applicant contained in the letter dated 29 September 2006. The fact that the Tribunal did not make a finding about the letter or mention it in the Findings and Reasons section of its decision makes clear it did not form part of the reason for affirming the decision under review. Because it did not form part of the reason for affirming the decision under review, it is clear that the Tribunal did not take the contents of the letter into account in making its adverse findings about the Applicant’s credibility.

3. A fair reading of the Tribunal’s decision makes it clear that the Tribunal did not rely on the letter dated 29 September 2006 in any way in rejecting the Applicant’s claims. The only mention of the letter in the Tribunal’s decision is that referred to above in paragraph 22 above in these Reasons.

The Tribunal’s decision generally

1. The transcript also discloses that the Tribunal member told the Applicant that there were a number of differences between what the Applicant claimed in his protection visa application and his oral evidence at the Tribunal hearing. The Tribunal informed the Applicant that he would be invited to comment post hearing on those differences. Those differences formed part of the information referred to by the Tribunal in its s.424A letter. No complaint is made by the Applicant in relation to the manner in which the Tribunal dealt with that information in its decision and no such error is otherwise apparent.

2. The Tribunal found the Applicant not to be a reliable witness.

3. The Tribunal considered evidence given by a witness in support of the Applicant as vague and general and the Tribunal gave it little weight.

4. The Tribunal found that the Applicant’s evidence of his activities on behalf of the Mann Party were “not convincing”. The Tribunal noted that, whilst the Applicant claimed to be an organiser at political rallies, he was unable to describe in other than “vague terms” exactly what he did or where the rallies were held. The Tribunal noted that the Applicant appeared to be unaware of national elections being held in India in 2004 and noted that “when pressed on this matter said that he did not vote in them because he was in detention at the time.” The Tribunal noted, however, that the Applicant later claimed to have been detained in 2004 only overnight.

5. The Tribunal found the Applicant’s evidence in respect of his alleged arrest, detention and mistreatment to be “very vague”. The Tribunal noted that the Applicant’s alleged injuries did not need medical attention.

6. The Tribunal rejected the Applicant’s claims of arrest, detention and mistreatment by reason of his support for the Akali Dal (Mann) Party. The Tribunal was prepared to accept that the Applicant may have been a supporter of Sikh separatism, however, rejected his claim of being a political activist. The Tribunal rejected the Applicant’s claim of ever having been seriously harmed because of his father’s political opinion in the past.

7. In the circumstances, the Tribunal was not satisfied that there is a real chance that the Applicant would be persecuted for a Convention related reason were he to return to India in the foreseeable future.

8. The findings of fact made by the Tribunal and the conclusions reached based on those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons.

9. Further, it is clear from the findings made and the conclusions reached by the Tribunal that, in making those findings and reaching those conclusions, it did not have regard to the letter dated 29 September 2006 and referred to at paragraph 22 above in these Reasons.

10. In the circumstances, there is no error on the part of the Tribunal in the manner in which the Tribunal dealt with the contents of the letter dated 29 September 2006 either in its s.424A letter or in its decision generally.

11. The Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.

12. Accordingly, the ground relied upon is not made out.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court, commenced by way of application filed 11 January 2007, is dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  11 July 2007