SZNDL v Minister for Immigration
[2009] FMCA 214
•16 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 214 |
| MIGRATION – Review of Refugee Review Tribunal – section 424 does not apply to questions asked at hearing – Tribunal’s reasoning cogent and findings open to it – applicant had reasonable opportunity to put forward evidence – no bias or bad faith – weight accorded to country information factual matter for the Tribunal – Tribunal sufficiently indicated its concerns about the evidence to the applicant – applicant seeking impermissible merits review – Tribunal not required to undertake own inquiries – application dismissed – applicant to pay fixed costs. |
| Migration Act 1958 (Cth), ss.424, 422B |
| SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256 SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [2001] HCA 17 SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 |
| Applicant: | SZNDL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 61 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 March 2009 |
| Date of Last Submission: | 16 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 12 January 2009 and amended on 2 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 61 of 2009
| SZNDL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made under the Migration Act1958 (Cth) made on 12 January 2009 seeking review of the decision of the Refugee Review Tribunal made on 19 December 2008, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant. The first respondent has put a bundle of relevant documents before the Court (I will refer to this bundle as the Court Book (“CB”)) from which the following background may be discerned.
Background
The applicant is a citizen of India who arrived in Australia on 2 June 2008. He applied for a protection visa on 2 July 2008 (the application is reproduced at the CB 1 to CB 36). This application was refused by a delegate of the first respondent in September 2008. On 15 October 2008 the applicant applied to the Tribunal for review of that decision (I note that attached to his application was a statement by the applicant and certain country information).
By letter dated 31 October 2008 the applicant was invited by the Tribunal to attend a hearing on 12 December 2008. By letter also dated 31 October 2008 the applicant was invited to provide additional information to the Tribunal. There appears to be a response to this letter (reproduced at CB 93) in which the applicant reports that he has spoken to an “advocate” in India who has requested two months to enable him to obtain relevant documents for the applicant.
The Tribunal addressed this issue with the applicant by its letter dated 20 November 2008. I note that in this letter, the Tribunal confirmed earlier telephone advice to the applicant that his request for an extension of time to provide the information had been refused. I note, incidentally, that while the applicant submitted certain documents to the Tribunal, they do not appear to relate to the questions posed by the Tribunal in its letter.
The applicant attended a hearing before the Tribunal on 12 December 2008. The Tribunal’s account of what occurred at the hearing is set out in its decision record and no other evidence has been put before the Court to challenge the Tribunal’s account of what occurred at that hearing. The Tribunal proceeded to make its decision on 19 December 2008.
The Applicant’s Claims to Protection
The applicant claimed to fear persecution in India by reason of what was said to be his political opinion. In particular, he claimed that he (and his father) had been active and involved in the Communist Party of India, the Maoist faction or group of that party, and claimed to have been involved in the party’s youth wing. I note that (with reference to the material before the Court) this organisation is a banned political party in India. The applicant claimed to have been arrested, detained, and to have been subjected to a number of charges.
The applicant submitted a newspaper article reporting on the arrest of a man called “Karthi” in July 2007 and claimed to be this person. (An extract from the Hindi newspaper in which the article is said to have appeared is reproduced at CB 68 and CB 69.)
The Tribunal
The Tribunal found that the applicant was not the person, “Karthi”, and it gave reasons for this finding. Given this finding, and what the Tribunal said was a “lack of corroborative evidence …” (that is, his lack of corroborating evidence to support his claimed links to the Communist Party or its youth wing), the Tribunal found that the applicant had never been a member of the party. The Tribunal, therefore, did not accept as true any of the claims that flowed from his claimed membership and involvement with the Communist Party. For this reason, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations and it therefore affirmed the decision under review.
Application to the Court
I note that in an amended application to this Court the applicant complains (in the one and only ground) that the Tribunal did not comply with s.424 of the Act, and that it did so by asking questions at the hearing which called for information not otherwise provided to the Tribunal by the applicant.
I also note four stated grounds in the originating application.
Hearing before the Court
At the hearing before the Court today, the applicant appeared in person. He was assisted by an interpreter in the Tamil language. Mr T Reilly of Counsel appeared for the first respondent (and I note that he also drafted written submissions which were filed on behalf of the first respondent).
At the commencement of the hearing, I sought to ascertain from the applicant (or, rather, for the applicant to confirm) that the sole ground in the amended application was the ground on which he sought to press before the Court today. The applicant did not directly respond to the Court but raised what appeared to be a different complaint, that is, that he had not been given sufficient time before the Tribunal to submit evidence that he had asked the Tribunal in writing for more time. I understood the applicant to be referring to the letter reproduced at CB 93 in which the applicant effectively seeks an extension of two months to enable a lawyer in India to obtain relevant documents for him.
In his submissions, the applicant emphasised at the hearing that the time between the date of the hearing (12 December 2008) and the date on which the Tribunal made its decision (19 December 2008) only gave him six days within which to provide the Tribunal with further evidence.
Consideration
Although the applicant did not appear to press the sole ground in his amended application, I did nonetheless consider whether this ground could assist the applicant before the Court today (notwithstanding the applicant’s submission that someone else had drafted this ground for him, and what I understood from the applicant was that he was not sure as to what was contained in this ground).
In any event, the complaint set out in the amended application does not succeed. As Mr Reilly submits, there is very clear Full Court authority to the effect that s.424 of the Act does not apply to questions asked during the hearing. (In this regard, see SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256 at [37] and SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236 at [49]-[51] as set out in Mr Reilly’s submissions).
In short, therefore, this complaint does not assist the applicant. To the extent that the applicant’s complaint is directed to questions asked at the hearing, and that the questioning failed to comply with s 424, it does not succeed.
Ground Raised at the Hearing before the Court
Before the Court today, the applicant’s complaint was that he needed more time to provide evidence to the Tribunal and that he was denied a reasonable opportunity by the Tribunal to obtain this evidence. I have some difficulty in accepting the applicant’s specific complaint that between the hearing and the making of the decision he only had six days within which to obtain this evidence. The material before the Court reveals, relevantly, that the delegate who made the original decision to refuse the protection visa, refused the application in September 2008.
If there were additional evidence that the applicant wished to put before the Tribunal to enhance his case, then the more relevant time, in my view, was the time available to the applicant from the making of the delegate’s decision, being 22 September 2008, up until the making of the Tribunal’s decision on 19 December 2008. That is, a period of nearly three months.
Even if the delegate’s decision was insufficient to focus the applicant’s mind on what was required, then certainly the applicant had at least from 15 October 2008 when he made his application to the Tribunal, to the time at which he actually attached further information.
The critical issue, however, is that the Tribunal wrote to the applicant on 16 October 2008 and specifically put the applicant on notice of, amongst other things, the following (CB 85):
“What does the Tribunal expect me to do?
You should:
…
·immediately send us any documents, information or other evidence you want the Tribunal to consider.”
That there was a need for the applicant to provide something more to the Tribunal was also made clear in the Tribunal’s letter of invitation to appear before it dated 31 October 2008, in which the Tribunal told the applicant that on what was before it, it was unable to make a decision in his favour. Amongst other things, that highlighted the following to the Tribunal [at CB 87]:
“Please return the completed form and any new documents or written arguments by Tuesday, 18 November 2008.”
Further to this, on 31 October 2008, the Tribunal specifically wrote to the applicant, (it would appear pursuant to s.424 of the Act), and provided the applicant with the opportunity to give the Tribunal additional information in relation to a number of specific matters that the Tribunal enumerated for him. Those matters, for the most part, required details of things such as the date on which the applicant claimed to have been arrested in 2005 and other details relating to his claimed detention in 2007.
Importantly, the issue of further time to provide further evidence appears, from the Tribunal’s account of what occurred at the hearing, to have been specifically discussed at the hearing. The Tribunal put to the applicant, in addition to its concerns about the documentary evidence put in support of his claim to have been the person, “Karthi” (the person who had been the subject of a newspaper report), that he did not put forward an explanation as to why he could not provide simple information which (if his claims were true) should have been within his own knowledge.
The Tribunal noted that the only response from the applicant was to present the advice he had obtained from the advocate in India, requesting a minimum of two months by way of extension, but that he had not offered any explanation or indication as to why this length of time was required to answer what appeared to be fairly straightforward questions.
Mr Reilly submitted that the Tribunal did not have to accept that the applicant needed more time, or indeed that he had a lawyer to assist him. Mr Reilly took the Court to the Tribunal’s analysis (in particular, he took the Court to CB 171, para [95]). The Tribunal had already set out its finding that the applicant’s claims were untrue. The Tribunal then concluded, in any event, that the applicant had been in Australia for some six months, that more than five months had elapsed since he applied for protection, and that the Tribunal considered that he had had ample time to organise the collection of evidence and to have submitted that evidence.
In its analysis (regarding the refusal to give the applicant further time) the Tribunal referred to its letter of 31 October 2008 in which it had asked him for information which would have been within his knowledge if his claims were true. The Tribunal also made reference to the claim that the applicant had been the subject of legal action in India prior to his departure, that he had engaged a lawyer to assist him, that it would have expected that the lawyer would have had details to support the applicant’s claims, and that he would have been in a position to provide that information long before now.
Mr Reilly submits that the Tribunal’s reasoning is cogent and that its findings in this regard were open to it, and that there did exist a rational basis to refuse the request for more time.
After carefully considering the material that was placed before the Court, and looking at the Tribunal’s reasoning, I agree. First, I cannot see that, for the most part, the issues in relation to which the Tribunal asked the applicant for further information were not matters within the personal knowledge of the applicant if his claims were indeed true.
Second, the Tribunal had an expectation that a lawyer who had been engaged to assist the applicant prior to his departure from India would have had to hand the details of which the Tribunal was seeking from the applicant and which would have supported his claims. The Tribunal’s reasoning clearly being that if this had been true, he would not have required a further two months for the lawyer to have collected this information. It is important to note that the Tribunal found the applicant’s claims to be otherwise untrue.
In all the circumstances, it was, in my view, clearly open to the Tribunal to proceed in the way that it did on what had been put before it. In the circumstances, the applicant did have a reasonable opportunity to put forward evidence in support of his claims and this particular complaint, therefore, fails.
Ground One in the Originating Application
As the applicant appeared unrepresented before the Court, I also considered the grounds raised in the originating application. I understand ground one to assert error on the part of the Tribunal in that the Tribunal is said to have failed to consider evidence that the applicant provided. There is no particularity to this complaint as to what particular evidence the Tribunal was said not to have considered. I note, in any event, that the obligation on the Tribunal in fulfilling its statutory duty (that is, in considering the review) is to consider each claim and each aspect of a claim made by an applicant.
There is very clear authority to the effect that in setting out its decision record, the Tribunal is not required to refer to every piece of evidence before it. In this regard, I note that the applicant’s evidence was given to the Tribunal with his application for review and subsequently at the hearing. While the Tribunal is, as I said, not required to refer to every piece of evidence, in my view, it appears to have done so extensively in the course of setting out its decision record.
In considering the applicant’s claims, the Tribunal set out the claims made at the hearing. The applicant is reported to have agreed that it was a fair summary of his claims and he confirmed that the sole ground for his claim to protection was the involvement with the Maoist Party and its youth wing. To the extent that this ground also makes reference to an assertion that the Tribunal made its findings based on generalised facts and the findings of the Minister’s Department, it is clear that the Tribunal did have regard to the Department’s file and that it did consider the interview of the applicant with the Minister’s delegate. In my view, this was a consideration that it was entitled to take into account.
While it is not clear what this ground seeks to assert, if it is asserting that the Tribunal did not bring an open mind to the proceedings because of some reliance on the delegate’s decision, and that it was therefore biased or that it acted in bad faith, then such a complaint does not succeed. Bearing in mind well-established and leading authorities on these issues (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], see also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [2001] HCA 17, SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 (“SCAA”) at [38]; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431) there is nothing before the Court in the material to show that any such complaints could succeed.
To the extent that this ground appears to take issue with the Tribunal’s description of country information that was considered by the delegate, and that the Tribunal was said to have given some weight to this information, I note that the Tribunal’s assessment of country information and the weight to be accorded to it is a factual matter for the Tribunal in the proper exercise of its jurisdiction (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]–[14]).
Ground Two in the Originating Application
Ground two attributes error on the part of the Tribunal for making an adverse credibility finding against the applicant, a finding which the applicant says was not obviously open to it on the known material and which he considers was not put to him.
It is the case that there were some important aspects of the applicant’s evidence that the Tribunal did not find to be truthful. In particular, the Tribunal did not accept that the applicant was the person named in the newspaper article known as “Karthi”.
Focussing on the applicant’s complaint that he was denied procedural fairness in that he was not given the opportunity to be heard, (presumably at the hearing), while there is no express statement by the Tribunal in its report that the applicant was not a witness of truth, I note what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) in that procedural fairness does not require the Tribunal to give an applicant a running commentary about what it thinks of the evidence that is given.
What is required is that which the High Court set out at para [47] in SZBEL. That is, that the Tribunal’s statements or questions during a hearing “sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.” Importantly, it is not necessary for the Tribunal to put to an applicant in so many words that he or she is lying, or that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.
The Court said:
“But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
In this regard, I also note what was said by the Full Court in Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87, in particular, at para [11].
In the current case, the Tribunal did give the applicant the opportunity to address the basis, that is, the substratum of facts in support of his claims, and it gave him the opportunity to expand on those parts of his claims which were open to doubt.
Any plain reading of the Tribunal’s account of what occurred at the hearing shows that it sufficiently indicated its concerns about his evidence such that the applicant was given the opportunity to explain.
Ground Three in the Originating Application
Ground three in the originating application asserts a factual and legal error on the part of the Tribunal by failing to find that the applicant satisfied the Convention definition of “refugee”. In the circumstances before the Court, I cannot see that this seeks anything more than impermissible merits review, and I refer here to Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 .
Ground Four in the Originating Application
I took the fourth ground set out in the application to mean that the Tribunal could have sought other independent information which presumably may have supported the applicant’s claims in some way. I note, in this regard, that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias).
While s.424 confers power on the Tribunal to seek additional information that may be relevant to the determination of an application before it, the exercise of such power is discretionary and, in any event, only requires the Tribunal to have regard to such information if it in seeks and obtains it.
Plainly, given that the Tribunal had difficulty in accepting the factual basis of the applicant’s claims, it did not see any need to obtain any further information beyond the general reference to the information to which it referred in its decision.
Further, there is no obligation on the Tribunal to conduct its own independent inquiry such as to make out the applicant’s case for him. Ultimately, it was for the applicant to put forward any evidence or material that he wished the Tribunal to take into account in support of his claims and it was for the Tribunal to decide whether the claim was made out noting, as I have already said, that the applicant had been given a reasonable opportunity to have done so.
In the second part of ground four, in which the applicant asserts that the Tribunal member failed to address material questions, the applicant appears to allege the Tribunal failed to identify issues and put those issues to him for comment. This, in my view, was adequately attended to at the hearing, as I have already set out above.
As Mr Reilly, in my view correctly submits, the Tribunal’s findings were made within the exercise of its jurisdictional function par excellence. I note the reference in written submissions to ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407.
Conclusion
In my view, the Tribunal’s findings were open to it on the material before it. The Tribunal gave reasons for its findings and conclusions. To the extent that the applicant made reference that he wanted his case to be considered by another Tribunal member (a “good” member as he described it), before the Court today, and to the extent that this may also be a complaint that the Tribunal member did not bring an open mind to the proceedings, I have already dealt with this issue previously.
For the applicant to succeed before the Court today, the Court at least would need to discern jurisdictional error on the part of the Tribunal. I cannot see such error. The application is therefore dismissed.
Costs
In this case I cannot see that there is any reason to argue against the making of the costs order. I note that a lack of funds, that is, “no money” with which to pay, is not a sufficient reason such as to cause the Court not to make a costs order. Therefore, I am going to make an order as to costs.
As to the amount, I note that the relevant Schedule to the Rules of this Court sets an amount of $5,000 as being the amount relevant for these types of proceedings. What is set out in the Schedule to the Court is a useful guide as to what is generally reasonable. But beyond that, I note that the amount set by the Minister is a reasonable amount in the circumstances of this case, and I have regard specifically to the preparation of multiple copies to the Court Book, the filing and serving of this document, the filing and serving of a response, the filing and serving of written submissions, attendances by the Minister’s solicitor on two occasions before the Court, and the briefing and attendance by Counsel at the hearing today.
With regard to those factors, the amount of $5,000 sought by the Minister is, in my view, a reasonable amount and I will make an order in that amount.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 18 March 2009
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