SZNMO v Minister for Immigration - [2009] FMCA 970

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 970

MIGRATION – Review of RRT decision – applicant a citizen of India – where Tribunal noted inconsistencies between applicant’s written statements, his statements at the hearing and those made before the delegate – where applicant claimed Tribunal should have written to him regarding those inconsistencies – whether standard letter issued at commencement of Tribunal process constituted information pursuant to s.424.

Migration Act 1958, s.424

SZIUD v Minister for Immigration [2006] FCA 1555
Minister for Immigration v SZNAV [2009] FCAFC 109
SZBYR v Minister for Immigration (2007) 235 ALR 609
TIN v Minister for Immigration [2000] FCA 1109
Paul v Minister for Immigration (2001) 113 FCR 396
Abebe v Commonwealth (1999) 197 CLR 510
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Applicant:

SZNMO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 911 of 2009

Judgment of:

Raphael FM

Hearing date:

17 September 2009

Date of Last Submission:

17 September 2009

Delivered at:

Sydney

Delivered on:

17 September 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 911 of 2009

SZNMO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He arrived in Australia on 21 August 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 1 October 2008. He received an interview with a delegate who, on 18 December 2008, refused to grant a protection visa. On 13 January 2009 the applicant applied for review of that decision from the Refugee Review Tribunal. He was invited to a hearing by the Tribunal which he attended. On 20 March 2009 the Tribunal determined to affirm the decision not to grant him a protection visa. It handed that decision down on 23 March.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the Convention ground of political opinion. The applicant claimed that he was an active member of the All India Anna Dravida Munnetra Kazhagam (“AIADMK”), a political party in Tamil Nadu. He claimed that he had been involved in the party from April until December 2006 and, in particular, he was involved in the state elections that were held in May 2006. He said he was detained in June 2006, January 2007 and January 2008. He said that his arrests had been arranged firstly by the DMK, an opposition party, and then also by the AIADMK, because he had become too popular. In regard to the January 2008 detention he said that he was kept in prison for 15 days on suspicion that he had been involved with a banned group but the case was later dismissed because of lack of evidence. He also said that there were outstanding cases against him.
The Tribunal questioned the applicant upon his history. It asked the applicant for details about the organisation and membership of the AIADMK. The applicant was not able to answer all the questions put to him by the Tribunal. He told the Tribunal that he had gone to live in Chennai for a period. The Tribunal pointed out to him that the claims that were being made to it in the hearing were different from the claims made to the delegate and in his original protection visa application. The applicant blamed the fact that the statement to the Department had been written by a friend.
The Tribunal summed up its views about the applicant and his claims at [CB 96]:
“[45] The applicant claims that between April and December 2006, and particularly during the May 2006 election in Tamil Nadu, he was actively involved with the AIADMK. He claims that his political activity, and mass appeal, attracted the adverse interest of political opponents in the DMK, the AIADMK, rowdies affiliated with political parties and the authorities in Tamil Nadu. He claims that he was physically attacked by political opponents and mistreated by the authorities. The applicant claims that on three occasions between 2006 and 2008 he was arrested and detained by the police. The applicant claims that he was detained at the instigation of his political opponents. He claims he will suffer similar harm in the future for the same reasons. He claims there are politically motivated false cases pending against him in India….
[47] The Tribunal is not satisfied that the applicant provided a credible account of his circumstances in India. In particular the Tribunal does not accept as credible the applicant’s claim that he was actively involved with the AIADMK in Tamil Nadu. The Tribunal considers it implausible that the applicant could have been involved with the party during the 2006 election, or even had an interest in it, and yet have limited knowledge regarding the AIADMK and its performance at the last election. The Tribunal has formed the view that the applicant has never been a member of the AIADMK. It finds the applicant fabricated the claims relating to his involvement with the AIADMK to enhance his protection visa application. It does not accept as credible the applicant’s claim that he was an active member of the AIADMK political party in India.”
Because the applicant had been found not to be a member of the AIADMK all the rest of his claims which were based upon his association with that political party fell away.
On 20 April 2009 the applicant filed an application with this court. It had one ground, and he said:
“The RRT did not send me a letter inviting [me] to comment on the information adverse to me. The RRT did not give me a chance to get evidence from India after the hearing.”
Prior to the hearing before this court there was filed on behalf of the applicant a document entitled “Applicant’s Written Submission”. That claimed that the Tribunal had failed to comply with s.424 of the Migration Act 1958 (the “Act”) That claim is particularised as follows:
“(1) The Tribunal asked question[sic] invited the applicant to give information additional to that which the Tribunal had obtained.
(a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act.
(i) The invitation did not specify the way in which the additional information may be given.
(ii) The information did not specify the period within which the information was to be given.
(2) The Tribunal member has failed to honour his undertaking. The requirement to put information to an applicant is contained in s424A, which relevantly states:
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.”
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence; therefore, the Tribunal has erred by denying me procedural fairness in respect of that issue. If I were to provide a submission prior to RRT decision, I believe I would have a different decision.
(3) The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the first applicant was not a credible witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
(4) The Tribunal’s failure to investigate the applicant claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 20 March 2009 was effected by actual bias constituting jurisdictional error.”
In regard to the ground contained in the original application, which seems to me to be the same as ground (2) in the written submission, it is clear that the Tribunal is not required to provide the applicant with a draft of its findings and ask him to comment upon them; SZIUD v Minister for Immigration [2006] FCA 1555.
In regard to ground (1) of the written submissions there is no evidence that the Tribunal did invite the applicant to give information additional to that which the Tribunal had obtained unless the applicant is referring to the letter written by the Tribunal officer at the commencement of the Tribunal processes. It is now clear that this letter is not a letter given pursuant to s.424 and therefore the provisions of s.424(3)(a) and 424B are not relevant; Minister for Immigration v SZNAV [2009] FCAFC 109.
In regard to the claim that the Tribunal ignored its undertaking to give the applicant an opportunity to make written submissions about the inconsistency in the evidence there was no undertaking given. Inconsistencies in evidence; and the Tribunal’s disbelief of an applicant’s evidence because of them is not information; SZBYR v Minister for Immigration (2007) 235 ALR 609. It is also incorrect to say that a conclusion reached by the Tribunal that the applicant was not a credible witness is also information; TIN v Minister for Immigration [2000] FCA 1109; Paul v Minister for Immigration (2001) 113 FCR 396 at [428].
An applicant is obliged to make his own case before the Tribunal; Abebe v Commonwealth (1999) 197 CLR 510; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] per Allsop, Jacobson & Graham JJ. My reading of the Tribunal’s grounds and reasons would seem to indicate that the Tribunal did investigate the applicant’s claims as did the delegate of the Minister.
The Tribunal listened to the tape of the interview between the applicant and the delegate. The Tribunal questioned the applicant on his claims and provided him with an opportunity to expand upon them. When he did do that he brought to the fore the inconsistencies in his evidence that the Tribunal noted and requested he comment upon. It seems to me that the applicant in this case was treated with the required procedural fairness and that the Tribunal’s decision cannot be impugned in this regard. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,600.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 1 October 2009