SZKAM v Minister for Immigration and Citizenship

[2007] FCA 1835

FEDERAL COURT OF AUSTRALIA

SZKAM v Minister for Immigration and Citizenship [2007] FCA 1835

SZKAM, SZKAN AND SZKAO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1629 OF 2007

RYAN J
23 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1629 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAM
First Appellant

SZKAN
Second Appellant

SZKAO
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

23 NOVEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The first and second appellants pay the first respondent’s costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1629 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAM
First Appellant

SZKAN
Second Appellant

SZKAO
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	23 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Cameron FM on 27 July 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”);  see SZKAM v The Minister for Immigration and Multicultural Affairs [2007] FMCA 1231. By a decision made on 7 December 2006, the Tribunal had affirmed a refusal of 17 June 2006 by a delegate of the then Minister for Immigration and Multicultural Affairs (“the Minister”) to grant a protection visa to the appellants.

2. By way of background, the appellants are nationals of India and include a husband, wife and their child.  Only the first appellant, the appellant husband, purported to make claims under the Convention and the appellant wife and child relied upon membership of his family unit.  For those reasons, the appellant husband will henceforth be referred to as “the appellant”.  The appellant arrived in Australia on 8 April 2006 and, on 18 May 2006 applied for a protection visa, which was refused by a delegate of the Minister on 17 June 2006. 

   The proceedings before the Tribunal

3. On 5 July 2006, the appellant applied to the Tribunal for a review of the decision of the delegate of the Minister.  In his application before the Tribunal, the appellant claimed to have a well-founded fear of persecution in India as the police in Delhi suspected that he had been involved in the kidnapping of a baby, and, he claimed, he would be subjected to harassment.  The appellant also claimed that, while working at his business, he had met a young girl who claimed to be an orphan living with her grandmother and younger sister.  He occasionally assisted her financially, and provided her with a dowry to assist her in contracting a marriage.

4. The appellant claimed that, on one occasion when he was visiting the girl, he had met her mother, who was carrying a baby which she claimed to be looking after for someone who had died.  A few weeks later, the police attended the appellant’s business and accused him of being implicated in child-stealing for profit.  The appellant claims that he was taken to the police station on a number of times from 28 April 2005 and was beaten and mistreated because he was regarded as an organised criminal and paedophile.  The appellant claims that had been released from prison only after paying a bribe of $5000 rupees to the police, but the police attention had continued.  The appellant asserted that the continuing interest in him by the police had disrupted his business and nearly destroyed his marriage. 

5. The appellant went on to claim that he had found out that the girl’s mother was part of an organised gang which stole children.  According to him, the police insisted that, unless he were to give evidence against the gang, he would be prosecuted as a member of the gang.  The appellant claimed that, during this period, he had also received death threats from the gang members.  As a result, the appellant left for Australia. 

6. The Tribunal found the appellant not to be a credible witness, observing at page 9 of its reasons;

   ‘I do not consider the applicant to be a truthful witness.  I am of the view that the applicant fabricated his material claims … in an attempt to create for himself the profile of a refugee.  In dealing with this application the Tribunal has formed a firm view that the applicant lacks credibility and his claims cannot be accepted.’

   It went on to characterise the evidence before the Tribunal as “at times inconsistent and implausible in relation to his material claims.” 

7. The Tribunal also declined to accept the appellant’s claim that his business had suffered as a result of police harassment.  It referred in its reasons to a report from a Hindu newspaper provided by the appellant in relation to the kidnapping, indicating that a 38-year-old woman had been arrested, but noted that it made no reference to any other suspects in the kidnapping.  The Tribunal was not satisfied that the police suspected the appellant as claimed, and noted that the appellant had failed to supply any evidence corroborating the allegations said to have been made against him or that he was suspected by the police. 

8. The Tribunal noted that the appellant had left India without difficulty on a valid Indian passport which, it found, indicated that the authorities were not “adversely interested” in the appellant.  The Tribunal stated in its reasons:

   ‘I am not satisfied that the applicant was detained in connection with the kidnapping or that he bribed the police as claimed.  I do not accept that he was suspected of any involvement in the kidnapping or that he was receiving pressure from the police to provide evidence in any court proceedings, relating to the kidnapping offence.’

9. After considering the evidence as a whole, the Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason and affirmed the decision under review. 

   The proceedings before the Federal Magistrate

10. The appellant filed in the Federal Magistrates Court an amended application dated 18 April 2007, seeking a review of the decision of the Tribunal on the basis that the Tribunal had contravened s 424A of the Migration Act 1958 (Cth) (“the Act”), in relation to the newspaper report.

11. The learned Federal Magistrate found that the Tribunal had not been in breach of s 424A of the Act. In his view, the newspaper report referred to in the appellant’s amended application came within the exception in s 424A(3)(b) as it had been sent to the Tribunal by the appellant’s solicitor under cover of a letter dated 5 July 2006. His Honour, therefore, found that there was no obligation on the Tribunal to furnish it again to the appellant for his comments under s 424A(1).

12. Furthermore, his Honour noted that the newspaper report had not been the reason or part of the reason for the Tribunal’s affirming the delegate’s decision.  His Honour considered that it had been referred to by the Tribunal only as something which failed to corroborate the appellant’s version of events which was unsupported by any other evidence.  The learned Federal Magistrate, therefore, concluded that the information contained in the newspaper report had not been the reason or part of the reason for the Tribunal’s rejection of the application for a protection visa. 

13. Accordingly, his Honour held that no jurisdictional error had been demonstrated and ordered that the application be dismissed with costs fixed in the amount of $5000.

    The proceedings in this Court

14. The notice of appeal filed in this Court on 15 August 2007 effectively raises the same ground as that agitated before the learned Federal Magistrate.  The ground of appeal is as follows;

    ‘1.In relation to the following information –

    a.Document referred to by the Tribunal as “a newspaper report provided by the applicant”.

    2.The information in 1a. above was used by the Tribunal as part of the reason for affirming the decision under review.

    3.The information in 1a. above was not given by the applicant for the purpose of his application for review and therefore section 424A(3)(b) does not apply.’

    The orders sought by the appellant as listed in the notice of appeal are as follows;

    ‘1.That the Tribunal’s decision be quashed.

    2.The Federal Magistrate’s decision be quashed.

    3.A writ of prohibition restraining the first respondent from action upon, or giving effect to, or proceeding further on the basis of the Tribunal’s decision.’

15. On 30 August 2007, a Deputy Registrar directed that the appellant file and serve written submission no later than five clear working days before the hearing of the appeal, unless otherwise directed.  The appellant has failed to file any written submissions, and has therefore failed to comply with the direction of the Deputy Registrar.

16. In his oral submissions on the hearing of the appeal, the appellant contended that the Tribunal had not advised him that the newspaper article would be used in the hearing of his application.  Had he known of the Tribunal’s intended use of the article, he claimed, he might have taken legal advice on the matter. 

17. The Minister has submitted that the notice of appeal is repetitive of the contentions rejected by the learned Federal Magistrate and has failed to particularise why his Honour’s rejection was erroneous. 

18. The Minister submits that the Tribunal’s findings as to the credibility of the appellant went to matters of fact as to which the Tribunal was the adjudicator par excellence and referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J, at [67]. This Court, the Minister claims, cannot review the merits of a decision of the Tribunal; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272. As well, the Minister contends, there was no error of law or jurisdictional error in the Tribunal’s making a wrong finding of fact; see Abebe v The Commonwealth (1999) 197 CLR 510 at [137].

19. In relation to the findings of the Federal Magistrate, the Minister argued that the newspaper report did not support the appellant’s claims. However, as it did not, in its terms, amount to a rejection, denial or undermining of the appellant’s claims to be owed protection obligations, the Minister submitted that the newspaper report did not fall within s 424A(1); see SZBYR v The Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17].

20. The Minister also submitted that, even if the Federal Magistrate had paid regard to the Tribunal’s reasons to determine whether the newspaper report was information within s 424A(1), it was not used adversely against the appellant’s claims, and therefore cannot be said to be “part of the reason” for the Tribunal’s decision; see SZEEU v Minister for Multicultural and Indigenous Affairs (2006) 150 FCR 214 at page 262.

21. The Minister further contended that, even if the newspaper report did fall within s 424A(1), it had been given to the Tribunal by the appellant for the purpose of his application and was, therefore, within the exception created by s 424A(3)(b).

22. The Minister finally submitted that no other arguable question has been raised by the appeal and it should be dismissed with costs.

    Disposition of the appeal. 

23. The sole ground of appeal to this Court is confined to the application of s 424A of the Act to the newspaper reports of 25 and 28 February and 11 May 2005. Those reports were restricted to the fact of the abduction of a child from a maternity hospital and, in some passages, identified or described the woman alleged to have been responsible. There is nothing on the face of any report, or incorporated in it by reference, to suggest that the appellant was implicated in the abduction or suspected of involvement in it. It follows that no information in any of the articles was, or would at any time have been, the reason or part of the reason for the Tribunal’s refusing to accept that the applicant had a well-founded fear of persecution for a Convention reason.

24. The fact that a piece of information does not, in the Tribunal’s opinion, assist an applicant’s case will not usually be the reason or part of the reason for its refusing to accept that case.  In relation to the appellant, the Tribunal exposed its reasoning process for rejecting his claim that he was suspected of having been an accomplice of the woman kidnapper when it said, at p 7 of its reasons;

    ‘I mentioned to the applicant that the newspaper report (Folio 52 Departmental File) submitted by him in relation to the kidnapping indicated that the woman Surinda Kaur was arrested and the child was recovered from her possession.  The article stated that during interrogation she stated that she had committed the crime because she was experiencing financial problems and intended to sell the child.  I mentioned to the applicant that there was no reference to accomplices or a kidnapping gang.  I mentioned to the applicant that the article indicated that the police had discovered an accomplice in relation to the murder of her husband some years ago.  I mentioned to the applicant that it was difficult to understand why the police were interested in him other than to obtain a statement about the incident when he allegedly saw the perpetrator with a baby boy.  The applicant stated that he was telling the truth.’

25. However, the reasoning process of the Tribunal, particularly as to why it disbelieves a particular part of an applicant’s case is not to be equated with “information” within the meaning of s 424A; see the joint judgment of five members of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, at 615 [17]-[18].

26. For these reasons the sole ground of appeal has failed.  The appeal must therefore be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        6 December 2007.

Counsel for the Appellants:	The first appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 2007
Date of Judgment:	23 November 2007