SZNNA v Minister for Immigration

[2009] FMCA 1171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNA v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1171

MIGRATION – Review of RRT decision – applicant a citizen of India – whether the Tribunal “listened” to the tape of the applicant’s interview with the delegate – whether failure to listen to tape would amount to failure to take into account a relevant consideration – whether evidence given to delegate relevant or material to Tribunal’s view of applicant’s credibility.

Migration Act 1958 (Cth), s.421

Minister for Immigration v SZNAV [2009] FCAFC 109
SBLF v Minister for Immigration [2008] FCA 1219
SZEHN v Minister for Immigration [2005] FCA 1389
Minister for Immigration v Yusuf (2001) 206 CLR 323
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
VAAD v Minister for Immigration [2005] FCAFC 117
SZMSD v Minister for Immigration [2009] FMCA 96
NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant: SZNNA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 969 of 2009

Judgment of: Raphael FM

Hearing date: 4 November 2009

Date of Last Submission: 4 November 2009

Delivered at: Sydney

Delivered on: 3 December 2009

REPRESENTATION

Counsel for the Applicant: Mr P Knowles

Counsel for the First Respondent: Ms A Mitchelmore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 969 of 2009

SZNNA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 9 July 2008 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 19 August 2008. On 10 November 2008 a delegate of the Minister refused to grant a protection visa and on 3 December 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and on 11 March 2009 determined to affirm the decision of the delegate.

2. It is not necessary for me to rehearse in any detail the applicant’s grounds for claiming that he was a person to whom Australia owed protection obligations because it is not in relation to the Tribunal’s assessment of those grounds that the complaint that the Tribunal fell into jurisdictional error arises. Suffice to say that the applicant told that he was a Latin Catholic from Kerala, he was an active member of the AITCU. He obtained a job digging up sand from the lake shore and loading it and, whilst doing that, he came upon about 100 cans of alcoholic spirit. The police were informed, the cans were taken. The owner, Manichan, found out that it was the applicant and his co-workers who had informed the police. There was a clash between members of Manichan’s group and the applicant and his colleagues and the police came and arrested and locked up the applicant and his people. There was a further altercation between the applicant’s group and the gang led by Manichan when one of the co-workers was killed after having had his arm amputated on a railway track. The applicant considered that, should he return to India, he would still be in fear for his life from Manichan and would not obtain any protection from the police because of Manichan’s influence as a criminal leader.

3. The applicant’s claims were first considered by the delegate with whom he attended an interview. The delegate’s decision is found at [CB 39 – 51]. It includes the claims made by the applicant in his PVA and at [48 – 50] a précis of the claims made at the interview. When the applicant applied for review of the delegate’s decision he received, on 3 September 2008, a letter from the Tribunal which stated:

   “We have asked the Department of Immigration & Citizenship (the “Department”) to send us its files so that the Tribunal can review your application for a protection visa. When we get your file we will decide if we can consider your review application. If we can consider it, a member of the Tribunal will look at the information you and the Department have given us and information about your country.”

4. On 24 December 2008 the Tribunal wrote a further letter to the applicant. It said:

   “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.”

   In the Tribunal’s decision record it says at [18] [CB 88]:

   “The Tribunal has before it the Department’s file relating to the applicant which includes the delegate’s decision record. The Tribunal also has had regard to the material referred to in the delegate’s decision. The Tribunal also has before it the applicant’s application to this Tribunal for review.”

   In an affidavit of Michael William Denahy affirmed on 30 October 2009 there is an extract from the transcript of the RRT hearing of 23 February 2009. The Member states:

   “Member:Nobody from the Department of Immigration comes today, but what they do is send me your file and I have read all through your file.”

5. The applicant contends that I can infer from the following that the Tribunal Member failed to have regard to the record of interview:

   1)The Tribunal did not refer to the interview in its record of decision.

   2)The Tribunal noted the information which it had before it [18] [CB 88] extracted here at [4]. This makes no mention of the record of interview.

   3)The Tribunal Member did not refer to the interview during its hearing, a fact admitted by the respondent.

   4)The Tribunal Member told the applicant at the commencement of the hearing, as extracted at [4] that she had read all through the file but made no mention of having listened to the hearing tape.

6. The burden of satisfying me I can infer, on the balance of probabilities, that the Tribunal did not listen to the hearing tape falls upon the applicant. In his oral submissions, Mr Knowles sought to bolster his case by making reference to the two letters from the Tribunal to which I have referred. It is now accepted that the first letter [CB 56] is not a letter from the Tribunal (as constituted under s.421 by the principal Member to review the applicant’s application) it is an administrative exercise preliminary to the review; Minister for Immigration v SZNAV [2009] FCAFC 109. The second letter [CB 58] indicates that the Tribunal “has considered” the material before it and the applicant accepts part of that material was the hearing tape. Thus, if anything, this phraseology weakens the applicant’s case. The applicant disputes this, saying that “considering” is not reading. The definition of “consider” found in the Macquarie dictionary is:

   “1. to contemplate mentally; meditate or reflect on. 2. to regard as or deem to be: I consider the examination is justified. 3. to think; suppose. 4. to make allowance for. 5. to pay attention to; regard: he never considers others. 6. to regard with consideration or respect; hold in honour; respect. 7. to think about (a position, purchase, etc.) with a view to accepting or buying. 8. to view attentively, or scrutinise. – verb (i) 9. to think deliberately or carefully; reflect.”

7. The most apt of these definitions being 8. In my view one could not draw an inference that if a bundle of information was to be scrutinised that would exclude listening to a tape which forms part of that bundle of material.  A Tribunal hearing is a hearing “de novo”. The Tribunal Member hears evidence from the applicant. The Tribunal Member may on occasion make reference to matters discussed between the applicant and the delegate but usually only to make a point. The most common point being made is the inconsistency between what was said to the delegate and what is being said to the Tribunal. In the instant case, the applicant concedes, indeed it is part of his submission, that what was said to the delegate was consistent with what was said to the Tribunal. In SBLF v Minister for Immigration [2008] FCA 1219 Gray J considered the function of the Tribunal in conducting a hearing de novo at [38]:

   “The Tribunal’s overall statutory function, pursuant to s 414(1) of the Migration Act was to review the decision of the Minister’s delegate. As I have said, that function is to be exercised by means of what is called a hearing de novo, in which the Tribunal must receive information and submissions and make its own decision on the material before it. The Tribunal has a fact-finding function, which it must exercise for this purpose.”

   It is often said that the arbiter of fact in a hearing de novo must “stand in the shoes” of the original decision-maker. That is another way of saying that the decision-maker is required to make his or her own decision on the information before it, including information which was not before the original decision-maker. There is nothing that requires a Tribunal in conducting an interview or when writing its reasons for decision to be constantly referring back to the decision it is reviewing. I am unable to reach the necessary state of satisfaction from this alleged deficiency.

8. The second matter, the suggestion that if the Tribunal had regard to the record of interview it would have summarised this, is a supposition that would be stronger had the two interviews produced inconsistent evidence. But they did not. I cannot regard the failure to summarise as indicative of a failure to listen. In the circumstances of this case, it seems to me to be entirely neutral. I take the same view with regard to the fact that the Member did not refer to the interview during the hearing. The Tribunal was interviewing the applicant itself. It was assessing the applicant’s credibility and the strength of his claims. If the story given by the applicant to the Tribunal was consistent with the story that he gave to the delegate, what would be the purpose of the Tribunal mentioning it to the applicant? I am unable to see that this failure to refer is indicative of a failure to listen to the extent that it would provide sufficient evidence for me to draw an inference.

9. Finally, the applicant relies on the fact that the Tribunal Member said that she had read through the file and, by analogy, did not say she had, nor did she, listen to the tape. I would regard what the Tribunal said as a colloquialism used towards a non-English speaking person for the purposes of assuring him that all previous evidence had been taken into account. The applicant knew that there was a tape of the interview with the delegate. If the use of the work “read” instead of the words “read all the documents and listened to the tape” was a matter of concern to him, he could have raised it with the Tribunal. I would tend to think that it was not of concern to him because he assumed what the Tribunal meant was that it had read and listened. I could not say that this use of the work “read” would allow me to infer that, on the balance of probabilities, the Tribunal did not “listen”. 

10. I have also considered whether the cumulative effect of each of these individual matters is such as to allow me to make the inference sought by the applicant. I do not believe this can be done without taking into account the suggestions already put as to why the Tribunal would not need to make any reference to the hearing. I have taken these matters into account and I am unable to say that the applicant has discharged the onus. In this regard, I would note that in SZEHN v Minister for Immigration [2005] FCA 1389 at [58] Lindgren J said:

    “It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (`Applicant WAEE') at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked:  Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.” [Emphasis added]

11. Whilst the applicant has fallen at the threshold, it would be appropriate to consider whether, if I am wrong in my views as to this, the Tribunal fell into jurisdictional error by not taking account of what was said before the delegate. Both the applicant and the respondent agree that no jurisdictional error will occur unless the material that the Tribunal has failed to consider is relevant; Minister for Immigration v Yusuf (2001) 206 CLR 323, and it is important to recall the distinction between a failure to take into account a relevant consideration which amounts to failing to consider a claim and the failure to consider evidence. As Ms Mitchelmore notes in her helpful written submissions [14];

    “Jurisdictional error will only be established if the failure to mention a particular piece of evidence supports an inference that the Tribunal failed to consider a claim that the applicant advanced: WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] – [47]; NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at [63].”

    She also made the telling point:

    “However, as Allsop J pointed out in Rezaei v Minister for Immigration [2001] FCA 1294 at [57], in a passage referred to with approval by the Full Court in MZWBW v Minister for Immigration [2005] FCAFC 94 at [26];

    Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the Court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed.”

12. I have taken these statements as to the law into account when considering whether or not it could be said that the evidence which the Tribunal is alleged not to have taken into account, namely the content of the delegate hearing tape, would be relevant. And, if it was relevant, whether it was of such significance that the failure to take it into account could have materially affected the Tribunal’s decision; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J. The applicant argues that the Court must not only look at the relevance and materiality of the evidence insofar as it goes towards the central issue of whether the applicant was a person to whom Australia owed protection obligations but also whether the evidence was relevant and material to the Tribunal’s assessment of his credibility. The cases which the applicant cites in support of his submission; VAAD v Minister for Immigration [2005] FCAFC 117 and SZMSD v Minister for Immigration [2009] FMCA 96, are both cases involving the failure to consider a piece of independent corroborative evidence which could have had an effect on the Tribunal’s view of the applicant’s credibility. In the instant case, the corroborative evidence is that of the applicant which is said to be consistent with the story given to the Tribunal. The respondent describes this as merely saying the same thing twice which is not corroboration, although, of course, it does indicate consistency. The applicant points out that the Tribunal did not accept a number of his claims; that he was among a group that discovered a supply of contraband alcohol and reported this to police; that he was attacked by members of the Manichan gang as a result; that he was attacked by the same gang a second time after attempting to assist a female worker and he was again threatened by the gang after his return from Dubai. These are all matters which the applicant spoke about to the delegate. The applicant argues that this indicates a consistency in respect of his story which might have persuaded the Tribunal of his credibility. The Tribunal’s reasoning in respect of the claims contains the following observations:

    “[50] The Tribunal does not accept that the applicant was attacked as he claims by Manichan supporters for the reasons that he claims in 2001 or in 2000 or at any time after that. Despite the seriousness of the attack in 2000, the applicant did not remember it occurred, initially saying it occurred on 10 January 2000 but then changing that to 10 June 2000 to accord with the date mentioned in the magazine that he produced to the Tribunal. When the Tribunal queried why the magazine published in July 2000 would be reporting events that occurred in January 2000, the interpreter and the applicant confirmed that the date of the magazine was July 2000 and the interpreter confirmed that the article mentions incidents on the 5^th and 10^th of June 2000. The Tribunal considers that if the applicant had been attacked as he claimed in 2000 in the very serious way that he claims, he would remember the month that it occurred even if he did feel tense at the hearing as he said he was.”

13. In the transcript of the delegate interview that the applicant provided to the Court, the delegate asked the applicant to tell him the date when the alcohol cans were found. The applicant responded that it was either in 2000 or 2001, he did not have a correct memory. The applicant then told the delegate that people from his group went to the police station and the delegate then said:

    “Delegate: Can you tell me when did Manichan’s people attack you? Give me some time, date. I have no idea this attack, this initial attack, took place?

    Applicant: The attack was based on the work we were doing, but the date and the time I cannot remember.

    Delegate:      Well, roughly what year was it?

    Applicant:     The year 2000. That’s what I assume.”

14. I am unable to see how this unsatisfactory recollection by the applicant in the delegate interview could possibly have assisted a Tribunal to come to a more generous view of the applicant’s credibility surrounding the date when the first attack took place given the reason for the Tribunal’s finding extracted earlier. In regard to the claim that the applicant made that he was attacked a second time by Manichan’s gang after he interceded on behalf of a female trade union worker, this was discussed at the delegate interview where the applicant gave some considerable detail about the death of one of the men involved by being placed on the railway line and it being reported as a suicide. In the discussion, the applicant referred to the attackers having bombs. At the Tribunal hearing the applicant appeared to have conflated this second incident with the first. There is no specific mention of returning to the gang for the purposes of assisting a female unionist. At [30] [CB 19] the Tribunal notes:

    “The applicant said that he was hurt in this incident and noted by people. Also on 20 December 2000, when loading sand, they were attacked again as Manichan took revenge on them as they had lost a lot of business. The applicant said that “we have an organisation against the liquor barons” and they took revenge for lost business. He said that he was hurt in the attack and another person was killed. The Tribunal noted that he earlier said that he went off to get treatment.”

    Again, I cannot see how, listening to the delegate interview, the applicant would have been at all assisted in his credibility claims. There is in fact a serious inconsistency in the alleged reason for the second attack between the delegate interview where it was a trade union matter and the Tribunal hearing where it seemed to have been a revenge attack for losing liquor business.

1. The final matter in respect of which it is claimed that the applicant would have been assisted by the delegate interview tape is in regard to the Tribunal’s disbelief that the applicant was again threatened by members of Manichan’s gang after his return from Dubai. The conversation between the applicant and the delegate is as follows:

   “Delegate: Ok, I would like to come to the final part of your claims where you say you went off to Dubai.

   Applicant: I remember I went to Dubai in October [briefly inaudible].

   Delegate: Yep. And when you returned from Dubai, you claim that these gangsters were still pursuing you. 

   Applicant: After returning back from Dubai the number of enemies increased considerably.”

   It will be noted that this response was considerably less detailed than that contained in the PVA where he said:

   “When he returned, Manichan sent criminals to his house to kill him and they injured his Mother and Father.”

2. It is not clear from the Tribunal record what the applicant was asked about the occurrence after his return from Dubai. The applicant has not provided the Court with a copy of the Tribunal transcript. It is noted, however, that at [CB 95] the Tribunal says:

   “In the Tribunal’s view it is not plausible that in 2007 Manichan, who was in custody, sent criminals to the applicant’s house to kill him. The Tribunal does not accept as true that the applicant’s parents were injured as the applicant claims; they are still living in Kerala in the family home according to the applicant’s oral evidence to the Tribunal.”

   The Tribunal also noted other inconsistencies in relation to the applicant’s story concerning his return to Kerala from the UAE which put a strain upon his credibility [52] [CB 95]. I am unable to see how in this context the extracted part of the delegate discussion could be relevant or material to the Tribunal’s view of the applicant’s credibility.

3. The applicant’s case that the Tribunal failed to accord him procedural fairness is set out in his submission below:

   “In its letter of 3 December 2008 and 28 December 2008 [CB 56 and 58] the Tribunal represented, in effect, that it had all the material on the file sent to it by the Department. The Tribunal member repeated this representation during the hearing itself: record of hearing, disc 1 at 0:02:10. The Applicant was, as a result of these representations, reasonably entitled to assume that the Tribunal had considered the record of interview between the Applicant and the Delegate. In fact, however, the circumstances indicate that the Tribunal departed from its representation by failing to have regard to the record of interview.

   The prejudice suffered by the Applicant in this case is demonstrated by considering how the Applicant could have acted if he was aware of the true state of affairs (i.e. that the Tribunal had not taken into account the record of interview). The Applicant could have, for example, told the Tribunal the additional details that he told the Delegate concerning the second attack on him by the criminal gang (see paragraph 19 above). Further, in response to the Tribunal’s questions directly challenging the veracity of his account, the Applicant could have attempted to bolster his credit by saying words to the effect of: ‘I am not fabricating these claims. I told the Delegate the same information and this consistency attests to the truth of my claims’. Of course, it would have been open to the Applicant to inform the Tribunal of these matters during the hearing despite the representation made by the Tribunal. However, given that the Applicant was entitled to assume that the Tribunal had considered the record of interview, there would have been no reason for the Applicant to draw the Tribunal’ s attention to the interview.”

4. There are two difficulties with this claim. The first is that I have found that I could not be satisfied that the Tribunal had not listened to the record of interview. The second difficulty is that I do not accept that the applicant is not obliged to give evidence that he was misled or prejudiced by the Tribunal’s representation. NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1 can be distinguished because in that case the Tribunal said that it was going to write a letter to the applicant regarding certain of its concerns which the applicant could have responded to. The applicant was not in a position to have known exactly what the Tribunal would have said in such a letter and the Tribunal did not act in accordance with its representation. In the instant case, there was no specific representation made by the Tribunal, at best, the applicant could draw an inference from what was said. But more importantly the applicant at all times knew what the evidence was that he could have rebutted or utilised. It was the evidence of his interview with the delegate. It is therefore possible for the applicant to have deposed to the fact that he believed he suffered prejudice as a result and indicate what he might have done had he known the alleged representation was incorrect, as required by the authorities; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Muin v Refugee Review Tribunal (2002) 190 ALR 601.

5. It follows from the views which I have expressed above that I am unable to say that the Tribunal fell into jurisdictional error even if it could be assumed that the Tribunal did not listen to the interview with the delegate. I have determined this case on its particular facts. Nothing which I have said should give comfort or cause distress to any other applicant who wishes to make a submission that there is a requirement in the Tribunal to do that.

6. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $5,850.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  3 December 2009