SZNZK v Minister for Immigration - [2010] FMCA 186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZK v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 186

MIGRATION – Review of decision of RRT – where delegate’s decision contained a statement from a person who was not the applicant – where Tribunal considered statement and declined to grant a visa “on the papers” – where Tribunal gave applicant a hearing – where mistake was discovered and the statement ignored and applicant’s statement substituted – whether Tribunal complied with s.425 Migration Act – whether Tribunal misrepresented applicant’s evidence in relation to attacks upon him.

Migration Act 1958, ss.91R, 418, 425

Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512

Applicant:

SZNZK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2562 of 2009

Judgment of:

Raphael FM

Hearing date:

11 March 2010

Date of Last Submission:

11 March 2010

Delivered at:

Sydney

Delivered on:

11 March 2010

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms S Sirtes

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2562 of 2009

SZNZK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 9 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 19 August 2008. On 12 November 2008 a delegate of the Minister refused to grant a protection visa and on 5 December 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal held two hearings which the applicant attended. At the end of the second hearing the applicant requested from the Tribunal a further period of three weeks in which to provide some additional information. That was granted. The applicant did not provide any further information. On 28 September 2009 the Tribunal determined to affirm the decision and handed it down on 29 September 2009.
The background to the applicant’s claim to be a person to whom Australia owned protection obligations was that he was a practising Christian from the state of Kerala in southern India. He claimed that he had been a member of Christian youth groups and involved in student politics during his high school and college years. He claimed that whilst he was at high school he was involved in protests against the SFI which he claimed was “guided by the Communist party” and was very strong at his school. He claimed that he was a member of the KSU, the Kerala Student’s Union, and there arose some tensions between the KSU and the SFI. He claimed certain threats as a result of serious clashes between those two organisations. He claims to have escaped from his home and gone into hiding in Tamil Nadu, the adjoining state.
When the applicant completed his secondary education he found it difficult to get into a state college and had to go into a private college because he claimed that both the SFI and another organisation, the DYFI, wanted to murder him. When he got into college he found himself coming up against the BJP, who he claims forced him to join a terrorist movement called the RSS. He claims that an attempt was made to murder him. He says that the RSS and the BJP members “engaged gangsters to hit my motor vehicle with a heavy truck.” After 2006 he claims that the Communist party in his state attacked Christian organisations and institutions and that he was part of resistance to this activity. He also claimed that he struggled against an organisation which he described as “the Land and Soil Mafia”:
“I was very much active in the struggle against the Land and Soil Mafia in the year 2006. They endangered a whole village by taking out the soil from the river, and this was done by the people from the Muslim community...they used gangsters to suppress this agitation. As the church was involved, the Muslim leaders portrayed this crisis as a religious riot. Meanwhile, I and my family were attacked by these gangsters at Chackai, Thiruvananthapuram in January 2006. When my father heard this news he fell seriously ill because of a heart attack and died after all. Even though my life is under threat, I was not able to get any police protection because police is always with the ruling party. I did not try for court or filing a case as it will affect my future studies. Moreover, taking a long time to settle a problem is very hard for me and my family, but I couldn’t stop my social action for the Malayalis people. My idea will always be with the people who are vulnerable. I happened to criticise the government in a public media for not giving the stipend for the fisheries students. These all made them work out a conspiracy against me. I was left with no choice but to elope somewhere which is unknown to them. So my parish priest sent me to this function [World Youth Day] that I can be away from them.” [CB 95-96]
The applicant attended an interview with the delegate and provided the delegate with details of his claims. He tells the court that he provided the delegate with a two page statement which is found at [CB 36-37] and is repeated in the Tribunal’s decision at [CB 94 - 96]. When the delegate provided his decision on 12 November 2008 he included in it at [CB 52-54] a statement that with the exception of making a reference to fishing is clearly not that of the applicant. On the other hand a reading of the delegate’s decision indicates that he is talking about the applicant throughout. When the matter came before the Tribunal it wrote a letter to the applicant [CB 71] in the standard form:
“Dear Mr Applicant,
INVITATION TO APPEAR BEFORE THE TRIBUNAL.
I am writing about the application for review made to the Tribunal by:
Mr Applicant.
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone. This letter is an invitation to the applicant listed above to appear before the Tribunal to give oral evidence and present arguments…”
When the applicant appeared before the Tribunal at the first hearing the questioning commenced with some questions about the applicant’s adherence to Christianity. At [T15], being the transcript of the first hearing annexed to the affidavit of Susan Archer sworn 20 January 2010, the Tribunal makes reference to a statement.
“T: I asked you earlier about your written statement to the department, and I asked you if you thought it was correct, and you told me it was.
A:Yes, I said.
T:Are you still saying it’s a correct statement?
A:Yes.
T:Mr Applicant, I’m going to read back something that was in your statement. “My family, to avoid further trouble, asked to shift to a safe place. I hence obtained a job in Dubai DAE and went there in 2002, December 5…”
The Tribunal is here referring to the statement which is extracted in the delegate’s decision. The applicant pointed out to the Tribunal that it was not his story and it was not the statement that he provided to the department. After some discussion about this the applicant gave the Tribunal a copy of his statement and the Tribunal agreed to look at the departmental file and see what was on there and said to the applicant:
“T: I am just going to look on your departmental file to see what is on there. Mr Applicant, just looking at the two documents, they appear to be the same document. Do you have anything to say about that?
A: It is not possible they can be identical.
T: I’m just going to have a short break so that I can read this, okay?”
The Tribunal then read the statement provided by the applicant and continued the interview asking questions on the basis of that statement. In its reasons for decision at [94] [CB 106] the Tribunal says:
“In dealing with this application, the Tribunal has considered the applicant’s claims and his application for a protection visa, his application for review and the documents given to the department and Tribunal in support of his claims. As indicated to the applicant, the delegate’s decision erroneously contains information which related to another person. The Tribunal has not had regard to the information contained in the delegate’s decisions of folios 59, 60, and 61 of the departmental file which relate to that other person.”
The Tribunal considered the evidence that the applicant had given and came to the conclusion that, whilst it accepted he was a Christian and did not disregard any matters that had occurred in Australia for the purposes of s.91R(3) of the Migration Act 1958 (the “Act”), it could not accept his claims to have been persecuted. It did this because it had a concern about his credibility. This concern is summarised at

[102-103] [CB 107]:
“The Tribunal is not satisfied that the applicant’s evidence on a number of the matters which had been included in the statement was consistent with oral evidence provided. The applicant’s evidence on the same matters discussed at both hearings on occasions varied as to what occurred, how it occurred, and who did it. When this was drawn to the attention of the applicant, he stated the mistakes or omissions in his statement were either made in translation, mistakes were made by his friend, omissions or additions were made by his friend or he had left some of the details out and they were not significant. He also claimed that the similarities between the date at 2006 and 2007 contributed to some of the mistakes. He also claimed that he was nervous at the hearings and that his answers were wrong because of this. The Tribunal accepts that the applicant may have been nervous at the hearings, but it is not satisfied that this is the reason for the significant differences in evidence, the inconsistencies or the omission in the applicant’s evidence. The Tribunal is satisfied that the applicant has been untruthful in his evidence contained in his written statement and that the evidence in it has been fabricated to further his application for a protection visa. The Tribunal finds that he is not a witness of truth in relation to the evidence contained in his written statement…”
The Tribunal then goes on to analyse each of the claims of persecution and dismisses them.
On 23 October 2009 the applicant filed an application with this court seeking review of the decision of the Tribunal. He had the advantage of legal advice under the Minister’s scheme and his legal advisor eventually filed an amended application on 20 January 2010. That application contained three grounds with which I shall deal. Regrettably, shortly before the hearing which was scheduled for 15 February 2010, the applicant’s solicitor withdrew. The applicant came to court on that day.
Two of the grounds upon which the applicant sought to move related to the fact that the Tribunal had received the statement from the third party that was not part of the applicant’s claims. There was some doubt at that hearing as to whether or not this was correct. But when it became clear from the transcript that this was so, I adjourned the matter so that the applicant could apply for legal aid. He tells me that he made an application for legal aid but it was not successful and therefore proceeded at the adjourned hearing on 11 March 2010 representing himself. He did, however, have the benefit of the detailed application that had been submitted by his then solicitors.
The first ground of application is:
“1. The Tribunal breached s425 of the Act.
a.Section 425(2)(a) of the Act requires the Tribunal to consider whether it should decide the review in the Applicant’s favour on the basis of the material before it (First Decision).
b.The “material before it” includes the information sent by the secretary pursuant to s418 of the Act and other material.
c.The Tribunal made the first decision prior to considering the “material before it.”
d.In doing so the Tribunal breached s425 of the Act amounting to jurisdiction of error.”
Section 425 of the Act is in the following form:
“Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
Having heard the applicant, my understanding of the gravamen of his claim is the Tribunal made the decision not to grant him a protection visa on the papers and to give him a hearing on the basis of material which contained the wrong statement. It is suggested by the respondent that the evidence would indicate that the only statement that the Tribunal had in the package of papers sent to it under s.418 by the department was the statement that was contained in the delegate’s decision itself. This, he says, follows from the documentation found in the affidavit of Jaimee Dinihan sworn 10 March 2010 and marked as Exhibit 1 in these proceedings. The affidavit annexes what is apparently two files, the first being the delegate’s file and the second being the Tribunal’s file that was returned to the department. In neither of those files is contained separately the statement which is extracted in the delegate’s decision. The respondent argues that I should infer from this that there was no such document. On the other hand there is the discussion between the applicant and the Tribunal which I have already extracted in which the Tribunal asks “whose statement is this?” which would tend to indicate that the Tribunal did have a separate statement before it.
I am unable to answer that question but I do not think that in the end it really matters. Section 425 of the Act is a beneficial section intended to ensure that every applicant to the Tribunal gets an opportunity to put his or her case to the Tribunal should there be any doubt as to their qualification for a protection visa. The wording of the Act requires the Tribunal to read the file that is before it, and then make a decision, either to grant a visa or to arrange for a hearing. The material which is before it is the material that the secretary of the department must send to the Tribunal pursuant to s.418 which is in the following form.
Secretary to be notified of application for review by Refugee Review Tribunal
“(1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.”
It is clear that in this case either a piece of information that was before the delegate was not transmitted or a piece of information that was not before the delegate in relation to this applicant was transmitted. Does that amount to a jurisdictional error? Or does it invalidate the decision made under s.425(1) to invite the applicant to a hearing or the decision made under 425(2)(a) not to decide the review in the applicant’s favour on the basis of the material before it? In Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 French J, as he then was, considered a case in which the failure of the secretary to transmit documents was part of the grounds of application. His Honour said at [41]:
“[41]It was submitted on behalf of the applicant that the failure of the Secretary to transmit the country information documents to the Tribunal was a contravention of s 418(3) of the Act and s 424 and constituted a jurisdictional error. There is no support in Muin v RRT for the proposition that a failure to comply with s 418(3) could amount to jurisdictional error – ([21] Gleeson CJ, [45] – [48] and [56] Gaudron J, [182] Gummow J and [326] Callinan J). In S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1309, Sackville J held the Secretary’s compliance with s 418(3) was not a pre-condition for the exercise of the Tribunal’s review function. His Honour also held there was no obligation on the Tribunal to consider the documents described in s 418(3) as part of the review process. An appeal against that decision was dismissed by the Full Court in S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125. I applied his Honour’s approach in P38/2003 v Refugee Review Tribunal[2004] FCA 1077.
[42]In any event, even if it were the case that a failure to comply with s 418(3) could amount to such an error, I consider, in the absence of any practical consequences to the outcome of the Tribunal’s decision, that relief should be refused on that discretionary basis.”
If, as this case suggests, there is no jurisdictional error in sending a piece of wrong information to the Tribunal and as the only requirement of s.425 is for the Tribunal to consider “the material before it” and as this Tribunal did consider “the material before it” I cannot see that this ground of application can succeed. If I am wrong about that I would apply the dicta of French J and refuse relief on the discretionary basis because the applicant has suffered no disadvantage. The applicant was given a hearing, in fact two hearings, and an opportunity to submit further information and this complied with the intention of the Act to ensure that all applicants received a thorough review of a delegate’s decision.
The second ground is in the following form:
“(2) The Tribunal breached s 414 of the Act.
Particulars:
(a)Section 414(1) of the Act requires the Tribunal to review an RRT reviewable decision when an application is made under s 412 of the Act;
(b) The obligation to review requires the Tribunal to review the file provided to the Tribunal by the secretary under s 418(3) of the Act;
(c)The Tribunal should have reviewed the file before it made the first decision;
(d)The Tribunal made the first decision prior to reviewing the file;
(e)In so doing, the Tribunal breached s 414 of the Act amounting to jurisdictional error.”
Section 414 is in the following form:
“Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).”

For the reasons which I have given above I am satisfied that the Tribunal did review the file provided to it by the Secretary under s.418(3) of the Act. And for that reason I cannot make a finding that a jurisdictional error has occurred.
The third ground of application relates to a finding of the Tribunal and is in the following form:
“(3)The Tribunal failed to consider or otherwise misconstrued or misunderstood the applicant’s claims.”
Particulars:
The Tribunal rejected the applicant’s claims concerning the land/soil mafia on the basis that he had not raised the attacks in 2006, 2007 and 2008 in the statement he submitted to the Minister’s Department (Department) (CB109 at [108]). However, the applicant raised an attack on him by the land/soil mafia (or persons engaged by them) in 2006 in that statement (CB37.6). The Tribunal, therefore, failed to consider the applicant’s claims or otherwise misconstrued his claims as put to the Department.”
I have already extracted that part of the statement made by the applicant to the Department and later to the Tribunal dealing with the land and soil mafia. What the Tribunal actually said about this statement is found at [108] [CB 109]:
“The applicant has claimed that he was attacked in January 2006 or January 2007 after he fought against the soil/sand mafia. The applicant has also claimed that he was attacked twice in January 2008, that he was attacked in Kazhakuttam in April 2008, and that he was identified as a troublemaker because of a picketing incident at this time. The Tribunal drew to the applicant’s attention that there had been no mention of these attacks in his statement to the Department. It does not accept that the reason that the details were not included in the statement was because he did not know what to write in the statement, he did not know how to prepare a statement or he did not consider them significant. The Tribunal rejects the applicant’s claims that he did not include this evidence for the reasons he has stated, when he included other matters which were less current in nature. The Tribunal is satisfied that the applicant has been untruthful in his evidence about these attacks. The Tribunal does not accept that these attacks occurred and is satisfied that his evidence has been fabricated to further his application for a protection visa. The Tribunal finds he is not a witness of truth in relation to the claimed attacks upon him in 2006, 2007 and in January and April 2008, and that he was identified as a troublemaker because of a picketing incident in 2008.”
I am of the view that it is open on a reading of this paragraph to conclude that what the Tribunal is referring to is not the attack in January 2006, which is indeed mentioned in the applicant’s statement, but all the other attacks, none of which are. If read in this way then there can be no question that the Tribunal misunderstood the applicant’s evidence or failed to consider his claims.
The applicant appeared before me today. He was particularly concerned about two matters. The first was that he felt that he didn’t have a proper opportunity to put his case over to the Tribunal because he was nervous. As indicated in its reasons the Tribunal was aware of his nervousness and commented upon it. The Tribunal came to the conclusion that it did not affect its views as to the applicant’s credibility. This is a matter for the Tribunal in the absence of any psychiatric evidence that the applicant was incapable on the day of proceeding with the hearing. The applicant also told me that he had been told by his legal advisers that the mistake in relation to the third party statement given to the Tribunal by the delegate was ‘unfortunate’. He felt that word did not adequately describe the concern that it gave to him. The interpretation which one puts on the word ‘unfortunate’ is a subjective matter. I can understand that the applicant’s interpretation of that word may be that it was put to him in a less than caring fashion and that it does not adequately describe the culpability of the delegate. It is not for this court to indulge in gratuitous criticism of the department or its officers as that would serve no purpose in the advancement of the applicant’s case.
In all the circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,800.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: