SZLOE v Minister for Immigration & Citizenship
[2008] FCA 1161
•8 August 2008
FEDERAL COURT OF AUSTRALIA
SZLOE v Minister for Immigration & Citizenship [2008] FCA 1161
SZLOE and SZLOF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 565 OF 2008
SUNDBERG J
8 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 565 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLOE
First AppellantSZLOF
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SUNDBERG J
DATE OF ORDER:
8 AUGUST 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs of and incidental to the appeal fixed at $2,300.
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 565 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLOE
First AppellantSZLOF
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SUNDBERG J
DATE:
8 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The appellants are citizens of India who arrived in Australia on 17 March 2007. On 1 May 2007 the husband lodged an application for a protection visa with the Department of Immigration and Citizenship. The wife did not claim to be a refugee in her own right, but applied as a member of the husband’s family unit. A delegate of the first respondent refused the application. The appellants applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate’s decision.
The Tribunal found that the husband’s claims, and the evidence he gave at the hearing before the Tribunal, lacked credibility. It listed various inconsistencies, contradictions and implausibilities in his story and concluded that he was “not truthful or credible”. On this basis it was not satisfied that he had a well‑founded fear of persecution for a Convention‑related reason. The Tribunal concluded that neither husband nor wife was a person to whom Australia owed protection obligations.
FEDERAL MAGISTRATES COURT
In an amended application filed on 4 February 2008 the appellants claimed that “The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the respondent not to grant the applicant a protection visa; and the Tribunal erred in law arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa.” They listed four particulars in relation to this ground.
The appellants also stated in an unnumbered paragraph that the Tribunal failed to comply with its obligations under s 91R and s 424A of the Migration Act 1958 (Cth) (the Act).
The Federal Magistrate found no jurisdictional error and dismissed the application largely on the basis of the Tribunal’s credibility findings.
NOTICE OF APPEAL
There are two grounds in the Notice of Appeal:
1.The Tribunal failed to consider relevant documents in support of the application for protection visa. The Tribunal was in breach of section 424A(1) of the migration act and therefore committed jurisdictional error, error of law and denial of natural justice.
2.Tribunal’s decision was affected by jurisdictional error because there was a reasonable apprehension that the Tribunal member had made up his mind to affirm the decision of the delegate at the time of hearing and therefore failed to comply [with] its obligations under s 424A of the Act.
While the grounds are directed at the Tribunal, this Court can only address error on the Magistrate’s part. I will proceed on the basis that the appellants allege that the Federal Magistrate erred in finding that no jurisdictional error resulted from the Tribunal’s treatment of the complaints. I will also deal with several miscellaneous claims in the amended application that were addressed below.
GROUNDS OF APPEAL
Section 424A
The first ground is not particularised. As noted by the Federal Magistrate, it is difficult to discern the true nature of the s 424A(1) claim. Section 424A(1) provides:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on or respond to it.
The Tribunal’s decision was based on its disbelief of the husband’s claims. It certainly rejected the claims made in “documents” recording his story. It may be that it relied on that information by rejecting it. If so, there is no breach of s 424A(1) because of the exclusion in sub‑s (3) of information provided by an applicant. The Tribunal relied on no other “information”.
The Magistrate dealt with a claim the appellants may perhaps have been attempting to raise under s 424A(1), namely that the Tribunal did not put its adverse views and thought processes to them before announcing its decision. His Honour rejected that contention in reliance on SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18], where the High Court said:
Finn and Stone JJ correctly observed in VAF v Minister for Immigration that the word ‘information’:
does not encompass a Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
For the foregoing reasons any claim grounded in s 424A must be rejected.
In the absence of particulars identifying the “relevant documents” the Tribunal is said to have failed to consider, this part of the first ground of appeal fails.
Bias
The second ground is also not particularised. While it mentions s 424A, it is plainly an assertion of apprehended bias. The test is whether a “fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided:” Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 at [27].
This ground has no substance. There is nothing in the Tribunal’s decision to indicate a closed mind. The appellants have filed no evidence on the issue. What they are really doing, under the umbrella of bias, is disagreeing with the Tribunal’s adverse credibility findings. The fact that it did not believe them does not establish any reasonable apprehension that it would not bring an open mind to the decision‑making process. The Magistrate correctly rejected this ground.
Miscellaneous claims
The amended application before the Federal Magistrate contained four particulars. His Honour characterised the first three as an ‘introduction’ to what followed in the amended application. With respect to the fourth particular, he said at [13]‑[14]:
13.The fourth stated particular asserts that the Tribunal did not make a finding relating to the seriousness of the harm claimed and, in particular, that the Tribunal did not find that the seriousness of the harm constituted persecution for the purposes of how that term is understood for the purposes of the Act.
14.I can only agree with the first respondent’s submissions that this ground is misconceived. It is quite plain the Tribunal did not make a finding that the harm feared was not sufficiently serious to amount to persecution, but that is clearly because the Tribunal rejected that any of the claimed harm said to have occurred in the past had, in fact, occurred. The reason that it rejected this was because it had formed a very clear negative view of the applicant’s credibility and truthfulness.
I agree with the Federal Magistrate.
The fourth particular also claimed that the Tribunal wrongly applied the law in relation to s 91R(1)(b) and (c) of the Act. The Tribunal summarised the effect of that provision at page 3 of its reasons. It then assessed the evidence and concluded at page 10 that it was not satisfied that appellants had a well founded fear of persecution for a Convention‑related reason. Given the findings about the husband’s credibility and truthfulness, the Magistrate correctly said that s 91R did not need to be considered because the “facts” upon which the appellants relied were “comprehensively rejected” by the Tribunal. See [19]. Put simply, there were no relevant facts that supported the appellants’ claims. His Honour was correct in his treatment of this baseless claim.
A further complaint raised before the Federal Magistrate was about the Gujarati interpreter’s interpretation of issues raised at the Tribunal hearing. In the absence of evidence establishing a deficiency in the interpretation service, this complaint must be rejected.
CONCLUSION
None of the grounds of appeal has been established, and the appeal must be dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 8 August 2008
Counsel for the Appellants: The appellants appeared in person. Solicitor for the Respondents: Sparke Helmore
Date of Hearing: 4 August 2008 Date of Judgment: 8 August 2008
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