SZNPJ v Minister for Immigration
[2010] FMCA 410
•15 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPJ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 410 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – Tribunal finding the applicant had a low political profile and his claims of serious harm were not credible – whether the Tribunal breached ss.424A and 425 of the Migration Act 1958 (Cth) considered – Tribunal relied on the delegate’s decision which included a summary of oral evidence he gave to the Department – illness of the applicant and interpretation and other problems said to frustrate the hearing opportunity afforded to the applicant – Tribunal purported to go through a process of oral disclosure concerning information the applicant gave orally to the Minister’s delegate – whether that was disclosable information considered. |
| Migration Act 1958 (Cth), ss.420, 422B, 424A, 424AA, 425 |
| Minister for Immigration v SCAR (2003) 128 FCR 151 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZNVW & Anor [2010] FCAFC41 MZXBQ vMinister for Immigration (2008) 166 FCR 483; [2008] FCA 319 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZODR v Minister for Immigration [2010] FMCA 402 |
| Applicant: | SZNPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 534 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 10 June 2010 |
| Date of Last Submission: | 22 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 534 of 2010
| SZNPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 18 February 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the parties’ written submissions.
The applicant was born on 14 February 1967 in India and is a citizen of India. He arrived in Australia on 27 September 2008 on a temporary business visa. [1]
[1] court book (CB) 15.
On 3 October 2008 the Minister’s Department received an application for a protection visa from the applicant.[2]
[2] CB 1.
In written claims attached to his protection visa application,[3] the applicant claimed that he was a businessman in India who commenced operating his business after he finished his degree. The applicant claimed that at College he become a member of the All India Anna Dravida Munnetra Khazagan party (AIADMK).
[3] CB 28-29.
The applicant claimed that he worked hard for the AIADMK and developed a significant profile. He became the secretary of the Pallavaram City electorate of the AIADMK. He claimed that he became known to members of the opposing political party, the DMK.
The applicant claimed that he had been arrested on 4 occasions between 1997 and 2005. In particular, the applicant claimed that after the last occasion upon which he was arrested (in 2005) formal charges were laid against him and he was brutally tortured when arrested and detained.
The applicant also claimed that in the aftermath of the 2006 Indian general election he was physically attacked by DMK supporters with the result that his business and his livelihood were destroyed. He claimed that after that he and his family were subjected to further threats.
Accordingly, in September 2008 the applicant applied for a visa to come to Australia. He claimed that he feared persecution because of the change of government in 2006. He claimed that if he returned to India his life would be in danger.
The applicant attended an interview before the delegate on 12 December 2008. The delegate made a decision to reject the application on 24 December 2008.[4]
[4] CB 42, 53, 54.
The delegate’s decision
The delegate proceeded on the acceptance of the applicant’s claim that he was a member of the AIADMK, and that he had been secretary of the local Palavaram City electorate of the party. However, on the basis that the applicant did not have certain knowledge of the AIADMK, and was evasive and unsure when asked questions about these matters, the delegate was not satisfied the applicant had a high profile within the party.[5]
[5] CB 53.
The delegate rejected the applicant’s claim that his business had been attacked, that he had reported the incident to the police and that since then he and his family had been threatened. This finding was again based on the applicant’s evasive and uncertain evidence about the claimed event and internal inconsistencies in the applicant’s claims.
The delegate also rejected the applicant’s claim that he was arrested and detained after his attendance at a public rally in 2005. The delegate had regard to documents that were provided by the applicant after the interview but was not satisfied as to the authenticity of a first information report said to corroborate the applicant’s arrest.[6]
[6] CB 55.
Finally, the delegate also noted that the applicant had travelled extensively outside India returning to India after short stays on each occasion. The delegate noted that this indicated that the applicant did not have a fear of persecution on returning to India.[7]
[7] CB 55.
The delegate concluded that s(he) was not satisfied the applicant had a genuine fear of persecutory harm in India.[8]
[8] CB 55.
On 19 January 2009 the applicant applied to the Tribunal for a review of the delegate’s decision.[9]
[9] CB 59.
On 20 April 2009, after an oral hearing conducted on 16 March 2009, the Tribunal affirmed the delegate’s decision.[10] That decision was quashed by order of Federal Magistrate Barnes on 29 October 2009. The matter was remitted to the Tribunal for determination according to law.[11]
[10] CB 68.
[11] CB 86.
The Tribunal conducted a further oral hearing on 2 February 2010. However, that hearing was cut short on account of the applicant’s illness, which the Tribunal had been alerted to before that hearing.[12]
[12] CB 91, 95, 99, 153-154 at [58]-[63].
The hearing was resumed on 9 February 2010, and was conducted over the course of almost three hours.[13]
[13] CB 111, 113.
On 18 February 2010 the Tribunal made a decision once again affirming the delegate’s decision.[14]
[14] CB 142.
The Tribunal’s decision
The Tribunal’s statement of decision and reasons reveals that it discussed and considered the claims of the applicant.
At the outset, the Tribunal gave consideration to the applicant’s claim that he was affected by dizziness at the hearing.[15] The Tribunal also considered an issue raised by the applicant at the outset of the hearing concerning his ability to understand the Tamil interpreter.[16] The Tribunal’s decision records that there were a few instances during the hearing when the applicant said he had not understood a particular question, but that on each occasion the question was rephrased or repeated so that the applicant understood and answered appropriately. The Tribunal concluded in its Findings and Reasons that it was satisfied that the applicant was not impeded in his ability to comprehend what was being said to him, or in his ability to respond appropriately, by any factor.[17]
[15] CB 154 at [59]-[63], CB 168 at [151].
[16] CB 154 at [61]-[63].
[17] CB 168 at [152].
As to the factual findings, the Tribunal was prepared to accept that the applicant was an ordinary member and supporter of the AIADMK. The Tribunal also accepted that he may have been arrested on four occasions in the context of demonstrations or rallies organised by the party.[18]
[18] CB 165 at [131].
However, the Tribunal found that the applicant was not the secretary of the Pallavaram City electorate of the AIADMK, or a leading member of any kind.[19] The Tribunal arrived at this conclusion after explaining its reasons for doubting the authenticity of purportedly corroborative documents provided by the applicant.[20] The Tribunal noted that in light of its concerns, it had decided not to make any inquiries into the authenticity of those documents. The Tribunal also noted that the contents of those documents were inconsistent with the applicant’s oral evidence.[21]
[19] CB 165 at [130].
[20] CB 164 at [123]-[128].
[21] CB 164 at [128].
As to the Tribunal’s acceptance that the applicant may have been involved in rallies or demonstrations and arrested on four occasions, the Tribunal found that the conduct of the authorities in arresting the applicant did not amount to persecution. The Tribunal made this finding after considering the circumstances surrounding the claimed arrests noting that the “totality of the applicant’s evidence indicates that the Tamil Nadu police were not singling out members or the applicant’s party for arrest”.[22] The Tribunal also rejected the applicant’s claim that he was in hiding and moving from place to place in order to avoid his political opponents.[23] The Tribunal also noted that the police actions in arresting the applicant were not discriminatory or unreasonable.[24]
[22] CB 165 at [134].
[23] CB 165 at [135].
[24] CB 165 at [133].
The Tribunal rejected out of hand the applicant’s claim that in the aftermath of the 2006 election he was physically attacked by DMK supporters, his livelihood was destroyed and that he and his family were subjected to further threats. The Tribunal arrived at this conclusion after considering in some detail the applicant’s evidence concerning the claimed event. The Tribunal set out the difficulties that it had with this evidence and also noted that the applicant’s claim that a subsequent overseas trip was connected with business had negatively impacted upon this claim. The Tribunal positively found that the business had ceased to operate in November 2007, and that this had occurred for reasons unrelated to the 2006 elections or any part played by the applicant in the election campaign, or as a supporter of the AIADMK.[25]
[25] CB 167 at [145].
Finally, the Tribunal referred to the trips that the applicant had taken abroad on a number of occasions. The Tribunal noted that if the applicant had a genuine fear of persecution in India at the time it would not have expected him to have returned to India unless he was compelled to do so.[26] The Tribunal also noted the time between the beginning of the applicant’s claimed fear in India since 2006 and his leaving India in September 2008, concluding that this was not consistent with the claimed fear.[27]
[26] CB 167 at [147].
[27] CB 167 at [148].
The Tribunal concluded that the applicant did not have a well founded fear of persecution.[28]
[28] CB 167 at [149].
The application
These proceedings began with a show cause application filed on 12 March 2010. The applicant now relies upon an amended application filed on 13 May 2010. That application contains two particularised grounds:
1. The Tribunal denied the Applicant a fair hearing.
Particulars
a. The Tribunal retained a Tamil interpreter from [Sri] Lanka when the Applicant explained that an Indian Tamil interpreter was required.
b. The Tribunal listened to the recording of the evidence given before the First Tribunal in the absence of the Applicant.
c. The Tribunal relied upon the evidence given by the Applicant to an officer of the First Respondent’s [D]epartment.
d. The Applicant informed the Tribunal that he was unwell at the hearing and explained that he couldn’t understand what was happening.
The Tribunal persisted with the hearing.
2. The Tribunal failed to comply with the Migration Act 1958 s.424A.
Particulars
a. The Tribunal relied upon information contained on the file of the Department of Immigration & Citizenship without giving the Applicant particulars of that information, explaining why it was relevant and giving him a real opportunity to comment upon it.
The evidence and submissions
I received as evidence the court book filed on 22 April 2010. I also received the affidavit of the applicant’s solicitor filed in court by leave on 10 June 2010. Attached to that affidavit is a transcript of the hearings conducted by the Tribunal on 16 March 2009 and 9 February 2010.
The applicant contends that the Tribunal breached s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) by continuing with its most recent hearing in the knowledge that the interpreter was inappropriate. The applicant also contends that the Tribunal breached s.425 by refusing the applicant the opportunity to listen to the sound recording of the first Tribunal hearing but, after the presiding member had listened to the sound recording himself, questioning the applicant about apparent discrepancies in his claims and evidence. The applicant also complains that the Tribunal relied upon statements made by the applicant to the Minister’s Department when it did not have an accurate record of the interview conducted by the delegate. The applicant further contends that he told the Tribunal on a number of occasions that he was unwell but the Tribunal persisted with the hearing and drew adverse conclusions based on the vagueness of the applicant’s statements. In relation to s.424A, the applicant contends that the Tribunal relied upon information in the applicant’s file from the Minister’s Department, including the record of his interview with the Department. The Tribunal based its decision on matters contained in the Departmental file. The applicant contends that the Tribunal breached s.424A of the Migration Act by failing to give particulars of all of that information to the applicant, explain why it was relevant and give him a “real opportunity” to respond to the information.
The applicant expanded upon those submissions in further written submissions filed by leave on 15 June 2010. In short, the applicant contends that the purported oral disclosure of the information in issue was inadequate for the purposes of s.424AA.
The Minister submits in relation to ground 1 of the amended application:
The particulars to the amended application and the applicant’s written submissions reveal that the claim to have been denied a fair hearing is based on a number of things that occurred at the hearing: a complaint about the Tribunal’s retention of a Tamil interpreter from Sri Lanka when the applicant had requested an Indian Tamil interpreter; the Tribunal’s listening to the evidence given to the first Tribunal in the absence of the applicant; the Tribunal’s reliance upon the evidence given by the applicant to the Department; and, an alleged claim by the applicant that he was unwell at the hearing and couldn’t understand what was happening.
As to the first particular, the Tribunal records at [59]ff that the applicant said he was having some difficulty understanding the interpreter because he was from Sri Lanka and not from India. The applicant said he had asked for an Indian interpreter and that Sri Lankan and Indian Tamil were different. The response to hearing invitation confirms this: CB 93. However, it is clear that the Tribunal asked the applicant if he would prefer the hearing to be adjourned and for the Tribunal to attempt to locate a Tamil interpreter from India. The applicant then put that decision in the Tribunal’s hands. It is clear from the Tribunal’s observations and comments about this issue that the Tribunal took the necessary steps to ensure that the applicant was in no way impeded or disadvantaged by the course that was taken, namely a careful approach to the assistance that he was receiving and an invitation by the Tribunal to interrupt at any time that he did not understand what was being put to him. On this basis it is not accurate to say that the applicant had said that an Indian Tamil interpreter “was required”. Nor could it be suggested that the interpretation at the hearing was such that the applicant did not receive a hearing in accordance with the requirements of s 425.
As to the second particular, there can be no criticism of the Tribunal listening to the tape recording of evidence given to the first Tribunal. The tape is material that is before the Tribunal when it conducts the review. It could be said that a failure by the Tribunal to listen to such a recording is in fact more worthy of criticism. The critical issue is to ensure that the natural justice hearing rule, as codified by Division 4 of Part 7 (especially under s 424A/424AA or s 425) is afforded in relation to any matter arising in connection with the tape recording. Apart from the unparticularised complaint in relation to s 424A (addressed below), there is no indication as to how the applicant asserts that any particular matter arising from evidence given to the first Tribunal was not discussed with the Tribunal member on this occasion. … To the extent that there is evidence before the Court about this issue, the Tribunal’s decision itself reveals that the Tribunal discussed a number of matters raised at the first full hearing with the applicant at the second full hearing in any event: at [68], [79], [80], [83], [86], [92], [95], [96], [103], [104].
As to the third particular, this complaint is addressed below. It is not presently clear how such a complaint might legitimately arise in the context of ground relating to s 425 of the Act. …
As to the last particular, it is inaccurate to plead that the applicant informed the Tribunal that he was “unwell at the hearing” and that he “couldn’t understand what was happening” Rather, the Tribunal acknowledged that the applicant had been unwell at the first, adjourned hearing. However, after resuming the hearing on 9 February the “Tribunal established that the applicant’s health had improved. He said that, although he became dizzy from time to time he was able to continue”. The Tribunal also advised the applicant he could seek an adjournment at any time if he did not feel able to continue.[29] In light of this material it is difficult to see how the applicant’s complaint about alleged unwellness and lack of understanding at the hearing has any basis either in fact or in law: see Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 151; Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41 per Keane CJ at [30] – [38], Emmett J at [49] and Perram J at [87].
[29] CB 154 at [59]-[60].
In relation to the second ground the Minister submits:
First, it is now well established that the ambit of the word “information” for s 424A purposes is limited: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]-[18].
Second, the particulars and written submissions in support of this ground do not identify with any specificity the ‘information’ said to constitute the breach of s 424A. Accordingly, it is difficult to respond in a meaningful way to this ground.
It is noted that paragraphs [138], [140], [145] and [147] (referred to at para 23 of the applicant’s submissions) do not contain information attracting s 424A obligations because the information falls within the exceptions in subsections (a), (b) and (ba) to s 424A(3).
It is clear that the Tribunal was very focussed on the inconsistencies (internal and external) in all of the information given by the applicant, including information in the written protection visa application, and oral information given by the applicant at various times during the conduct of the review before the Tribunal. However, none of the information referred to in the applicant’s written submissions attracts s 424A(1) obligations.
The Minister expanded upon those submissions in further submissions filed by leave on 22 June 2010. In short, the Minister contends that there was no obligation of disclosure in this case because the information in issue was not information requiring disclosure.
Consideration
Ground 1 – alleged breach of s.425
The applicant contends that because of a number of asserted problems at the hearing, the hearing opportunity he was afforded was not a fair one. This brings into focus the question of whether the Tribunal is under any obligation to afford an applicant a fair hearing opportunity. I accept that the Tribunal is under an obligation to afford a hearing opportunity that is more than an empty shell or hollow gesture[30] but there remains confusion as to the extent to which concepts of a fair hearing are imported into the procedural code governing the Tribunal’s review function by s.425 when read with s.420. As I have said recently, [31] the enactment of s.422B of the Migration Act was plainly intended to free the Tribunal from the strictures of the general law fair hearing rule but s.422B(3) would appear to reflect a Parliamentary intention that the Tribunal was not intended by that exclusion to be given licence to act unfairly or unjustly.
[30] Minister for Immigration v SCAR (2003) 128 FCR 151.
[31] SZODR v Minister for Immigration [2010] FMCA 402 at [37].
The contention of procedural unfairness argued for by the applicant in Minister for Immigration v SGLB[32] must now be put, as it is here, as an asserted breach of s.425 of the Migration Act. In Minister for Immigration v SZNVW & Anor[33] at [14] and [24]-[29] Keane CJ discussed examples of circumstances in which s.425 has been found to have been breached by reason of some procedural unfairness in connection with a hearing. On the other hand Perram J at [73]-[83] pointed out that s.425 focuses on the hearing invitation rather than the hearing itself. His Honour also emphasised that, in considering whether s.425 has been breached the important question is not whether the applicant has been treated fairly but, rather, whether the process contemplated by s.425 has been “subverted” (or to put it another way – disabled). That process will be disabled if an applicant, through no fault of his or her own cannot participate in it either at all or in some determinative respect.
[32] (2004) 207 ALR 12.
[33] [2010] FCAFC 41.
There may be a question in each case whether a point was reached at which the hearing opportunity envisaged by s.425 was not provided, whether that was by reason of some manifest unfairness or some other subversion of the hearing process. The courts will continue to be called upon to exercise what may be fine judgements in particular cases.
In the present case the applicant first alleges that there were problems with the interpreter at the second Tribunal hearing. The transcript discloses the following exchange between the presiding member and the applicant:[34]
[34] T4 from line 38 to T6 at line 8.
MEMBER McCARTHY: Q. Now, are you understanding me through the interpreter?
A. Sometimes I don’t understand because I don’t understand the Tamil that he speaks.
Q. I see. Okay. Well, if that happens, let me know. This gentleman is quite an experienced interpreter and I’m sure he can probably – if you don’t understand something, I’m sure he will be able to put it into different language.
A. Yes. Well, the language he speaks and the language we speak are different and sometimes I don’t understand. That’s the – there are some mistakes which happened last time also.
Q. Mm-hmm. Why did you not tell me last time that you would have preferred a different interpreter?
A. Last time when he was speaking I didn’t understand very well, but this time I did ask that I wanted an Indian interpreter, Indian Tamil interpreter.
Q. I see. I hadn’t understood that. Okay. Well, look, are you happy to continue now or would you prefer me to adjourn yet again?
A. Sometimes I don’t understand because – the answer that I give changes suddenly because I don’t understand the Tamil.
Q. Okay. Well, look, so – well, do you want to continue now or do you want me to adjourn and ask for another interpreter?
A. You have to decide, sir.
Q. Well, look, then, let’s go a little further. If you don’t understand, you tell me. Okay? You tell me anything that you do not understand.
A. Fine
Q. Okay. All right. Now, the final thing that I want to say to you is that – well, two things: firstly, that this interpreter or all interpreters are only here to help us communicate and he will not speak to anyone else about the matters that we discuss.
A. That is not an issue. What I’m saying is that the Tamil that we speak in Tamil Nadu is entirely different to the Tamil that you speak.
Q. I see. All right. Well, no, I’m understanding that. Okay. The other thing that I want to say to you is that every – just stop, as I am stopping, after one or two sentences to make sure that the interpreter has time to tell me what you are saying. Okay? And finally, the other thing that I want to say is I remind everybody at this stage of every hearing that I have about the importance of telling the truth, because obviously if someone tells me something which is not true and I recognise that, it is almost inevitable that that will influence the way I assess everything else that that person says. Okay? Now, so let’s – look, I’m hearing what you’re saying about the interpretation, but let’s just try for a little while and if there’s a problem then I’m quite happy to adjourn and come back with another interpreter. Okay? As I said, I have read the answers that you gave in your application forms and I’ve read the statements that you made and other written material that you’ve submitted to the department and to the Tribunal. Are you satisfied that the information given in those documents is truthful?
The applicant had made a request for an Indian Tamil interpreter[35] but that request had not been met. The Tribunal was not under an obligation to meet the applicant’s request, provided that the interpreter was adequate for the task. The applicant asserted he had some problems in understanding the Sri Lankan Tamil interpreter but left it to the Tribunal to decide whether to continue. The approach by the presiding member of continuing to see whether there were serious problems was appropriate. It does not appear to me that the applicant experienced particular difficulty[36]. He confirmed at T7, line 19 that the presiding member had accurately summarised his claims. The difficulties the applicant claimed to have seemed minor and were easily resolved. The applicant confirmed this at T37, lines 20-30 where the following exchange occurred:
[35] CB 93.
[36] T18 at line 14, T32 at line 16.
Now, as I said, I have asked you everything that I have asked you. I am conscious of your comments about interpretation, but – and I’ve asked you several time through the hearing whether or not you understood things. A couple of times you’ve said or you volunteered “I didn’t understand that” and we’ve gone back and we’ve clarified things. So I just want to check with you, are you happy that when we have spoken, that at any time you haven’t understood something, we’ve clarified it to your satisfaction?
A. Yes, you have.
In general, I am satisfied that the transcript discloses that the applicant was able to communicate effectively through the interpreter who was provided.
This is consistent with the Tribunal’s own understanding of what had occurred set out at [61]-[63] of the Tribunal’s reasons.[37]
[37] CB 154.
The second allegation is that the applicant was unfit to participate in the hearing. The Tribunal was aware of the applicant’s health concerns and granted an adjournment to accommodate them. At the outset of the second Tribunal hearing the presiding member enquired about the applicant’s health[38]. The applicant answered that he was feeling “a little better, but still I have this dizziness”. The presiding member then said[39]
MEMBER McCARTHY: Okay. Well, you know, look, if you feel you need to stop for a little while, just let me know.
[38] T2 at line 8.
[39] T2 at line 14.
The applicant again complained of dizziness later in the hearing[40]. The presiding member had specifically enquired whether the applicant was having any difficulty and whether he was understanding the presiding member. It was after the applicant said he was having no difficulty that he volunteered he was getting some dizziness and headaches. The presiding member asked the applicant if he wanted to stop and he responded[41]:
[40] T23 at line 27.
[41] T23 ,line 30.
A. You can continue with the questions, sir.
I am satisfied, based on the evidence of the transcript, that the Tribunal took adequate precautions to ensure that the applicant was fit to proceed and continue with the hearing and that he was so fit.
The Tribunal took into account the applicant’s state of health in reaching its decision. At [151][42] the Tribunal states in its reasons:
In reaching its conclusions in this case, the Tribunal has considered the applicant’s claims that he becomes “dizzy” from time to time and that he was dizzy and had a headache at one stage in the second hearing. It has also considered his claim that he was fearful and not always able to remember things correctly. Because the second hearing had to be adjourned because the applicant was feeling unwell, and because of his claims regarding interpretation, the Tribunal paid close attention to the applicant’s appearance and demeanour when the second hearing resumed. It has made observations on some of these matters in paragraphs 58 to 63 above, particularly in relation to interpretation. The Tribunal is satisfied that the applicant was not impeded in his ability to comprehend what was being said to him or in his ability to respond appropriately, whether by nervousness, fear, lack of comprehension or any other factor.
[42] CB 168.
In my view, the Tribunal followed best practice both in relation to the issue of interpretation and in relation to the applicant’s state of health and no criticism can or should be directed at the Tribunal for the manner in which it proceeded and dealt with those issues.
The applicant further contends that the hearing opportunity was unfair because the second Tribunal had the advantage of listening and re‑listening to evidence given by the applicant to the first Tribunal and expected the applicant to respond to it without him having the same opportunity. The applicant was said to be under a particular disadvantage because the first Tribunal hearing had occurred about 12 months before the second Tribunal hearing. While it might have been desirable for the Tribunal to give the applicant the opportunity to listen to the sound recording of the first Tribunal hearing, I do not accept that the Tribunal was under any obligation to do so. Provided that the Tribunal accurately put to the applicant what he had told the first Tribunal and gave him the opportunity to understand and deal with the Tribunal’s concerns regarding any issue on which the review might turn, I see no legal error. It is not suggested that the Tribunal misrepresented what occurred at the first Tribunal hearing or left the applicant in doubt about what the issues were.
The Tribunal records in its reasons[43] that it summarised the applicant’s claims to it at the second hearing and the applicant accepted that as a fair summary. At [68][44] the Tribunal records saying that it had listened to a recording of the previous Tribunal hearing and would take that evidence into account. The Tribunal records that it told the applicant that it had not been able to listen to the recording of the interview with the delegate held in December 2008 because there was something faulty in the recording. However, it had noted the delegate’s comments in the decision record regarding the evidence that the applicant had given. At [69][45] the Tribunal records that the applicant confirmed that he had read the delegate’s statement of reasons, as recently as two weeks previously, though he did not understand some of the language used by the delegate. The Tribunal asked if he wished to take issue with any statements of fact set out in the delegate’s decision. He said that he did not think that there were any incorrect statements of fact in that record. The accuracy of those statements is confirmed by the transcript.
[43] CB 154-155.
[44] CB 155.
[45] CB 155.
There is an extensive discussion with the applicant about his claims as put to the first Tribunal and that is faithfully recorded in the Tribunal’s reasons at CB 156-162. I am satisfied from that discussion, as verified by the transcript, that the applicant was left in no doubt as to the essential and significant issues upon which the review would turn. Those issues were the applicant’s knowledge about the AIADMK, the political party he claimed to be involved with, the Convention nexus with police action against the applicant, the credibility of the applicant’s claims that political opponents destroyed his livelihood and he was subject to political threats in the aftermath of elections conducted in 2006 and his delay in seeking protection.
I do not accept that the Tribunal acted unfairly in the manner in which it dealt with the evidence given to the first Tribunal hearing and its reliance upon the available record of what the applicant had told the Minister’s Department.
Taking into account all of the asserted problems individually and cumulatively, I am not persuaded that the hearing opportunity afforded the applicant was subverted or even that it was unfair. I reject ground 1 in the amended application.
Ground 2
In relation to the asserted breach of s.424A, there are two questions. The first is whether there was any information used by the Tribunal that required disclosure. It is conceded that there was no written disclosure but the Tribunal purported to go through a process of oral disclosure, pursuant to s.424AA. If there was an obligation of disclosure arising under s.424A, the question then is whether the process of disclosure purportedly undertaken pursuant to s.424AA was adequate. The applicant contends that the Tribunal has based its reasons in part on information obtained from the delegate of the Minister’s decision about:
a)the nature of the applicant’s involvement in AIADMK at [128]-[130][46];
b)the timing of the applicant’s departure from India at [149][47];
c)the attacks upon the applicant and the destruction of his business at [137]-[145][48], and noted at [141] that the applicant’s account differs.
[46] CB 164-164.
[47] CB 167.
[48] CB 166-167.
The applicant’s oral evidence to the delegate is set out in [128].
The Tribunal discussed the applicant’s involvement with AIADMK in the transcript[49].
[49] T12, line 27 to T14, line 30.
The Tribunal went on to discuss his party membership[50] when it asked him:
Okay. Now, do you – are you – do you need anymore time to comment on that?
The applicant responded:
[50] T14, line 42 to T18, line 12.
I haven’t understood.
The Tribunal attempted to explain[51] but did not repeat its invitation to the Applicant to have time to consider the information.
[51] T18, line 12.
The Tribunal discussed the applicant’s departure from India[52]. The Tribunal did not advise the applicant why this information was relevant or advise the applicant that he could seek additional time to respond to or comment on the information.
[52] T35, line 40; T37 line 18.
The Tribunal discussed the attacks upon the applicant and the destruction of his business[53] where the Tribunal asked:
Okay. Do you need any more time to comment on that?
The applicant answered:
[53] T24, line 10; T25, line 32.
I simply don’t know what to say. I think I’m going to be crazy. My mind is very confused, sir.
The applicant contends that a fair understanding of this response could not lead to a conclusion that the Tribunal had ensured that, as far as was reasonably practical, the applicant understood why the information is relevant to the review, and the consequences of the information being relied upon in making the decision.
The applicant further contends that, notwithstanding his answer, the Tribunal did not respond to it or give him a real opportunity to respond but simply moved onto the next aspect of its questioning.
The applicant contends that the manner of oral disclosure followed by the Tribunal was inadequate for the purposes of s.424AA(b) if the information in issue was required to be disclosed pursuant to s.424A(1) of the Migration Act. The obligation of disclosure under s.424A(1) does not apply to information that the applicant gave during the process that led to the decision that is reviewed by the Tribunal, other than such information that was provided orally by the applicant to the Department.[54] In the present case the applicant contends that the information was required to be disclosed because the information in issue was provided orally by the applicant to the delegate at the Departmental interview. The only record of that interview is that recited in the delegate’s reasons[55]. The applicant, as I have noted above, confirmed the accuracy of the recitation by the delegate of his factual statements at that interview.
[54] s.424A(3)(ba)
[55] CB 52.
However, assuming that there is an evidentiary basis for the applicant’s contentions, he must overcome the hurdle of establishing that the information he gave to the delegate was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review. The applicant’s difficulty is that while the language of s.424A(1) suggests a subjective test of what was in the Tribunal’s mind, the High Court in SZBYR v Minister for Immigration[56] at [17]-[18] applied an objective test in the following terms:
Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
does not encompass the 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. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
[56] (2007) 235 ALR 609.
I accept the Minister’s contention that in the light of the High Court’s analysis in SZBYR, neither the information the applicant gave to the delegate orally nor the Tribunal’s consideration of that information was information that required disclosure pursuant to s.424A(1).
It is only information that contains “in its terms” a rejection, denial or undermining of the applicant’s claims that attracts the s.424A(1) obligation. Also, “information” for s.424A purposes does not encompass the reasoning or thought processes of the Tribunal: SZBYR at [17], [18], [19].
To this end, information that merely assists the Tribunal to make assessments of the applicant’s general credibility or believability does not fall within the purview of s 424A/424AA: “The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief”: SZBYR at [19]: see also MZXBQ vMinister for Immigration[57] per Heerey J at [27]. The fact that some oral information given to the delegate might ultimately cast doubt on the applicant’s credibility, whether generally or in relation to a specific issue, is not to the point.
[57] (2008) 166 FCR 483; [2008] FCA 319.
The applicant has not identified any information in either the delegate’s reasons[58] or in the Tribunal’s description of the oral evidence given to the delegate[59] which might be said to fall outside the exceptions in s.424A(3). He merely points to information in the Tribunal’s reasons.
[58] CB 52- 55.
[59] CB 147[27] – 149[28].
On the fact of this case, it seems highly unlikely that evidence given by the applicant in support of his claims to the delegate at the interview would directly and “in its terms” undermine his claims in the way described in SZBYR. In any event, no such information is discernable.
I reject the second ground in the amended application.
The applicant has failed to establish that the Tribunal fell into jurisdictional error. It follows that the Tribunal decision is a privative clause decision and that the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 July 2010
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