SZOWC v Minister for Immigration

[2011] FMCA 190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWC v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 190

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal was biased – whether the Tribunal had an expectation that the applicant would provide proof or evidence in support of his claims – applicant sought impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424AA, 424A, 425, 476

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162; (2005) 79 ALJR 1009
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190
VAF v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 123; (2004) 206 ALR 471
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204; (2010) 84 ALJR 507
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515

Applicant: SZOWC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2724 of 2010

Judgment of: Nicholls FM

Hearing date: 22 March 2011

Date of Last Submission: 22 March 2011

Delivered at: Sydney

Delivered on: 22 March 2011

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 17 December 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2724 of 2010

SZOWC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. This is an application made on 17 December 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 November 2010, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of India.  He last arrived in Australia on 13 February 2010. He applied for a protection visa on 12 May 2010 (Court Book – “CB” – CB 1 to CB 26).

Claims to protection

1. The claims for protection were set out in a statement submitted on the same day (CB 31 to CB 32).  The applicant claimed to be a Sikh associated with the Sikh Student Federation (“SSF”) and working for the Khalistan movement in India.  He claimed to fear harm from Hindus and the Indian authorities.

2. Specifically the applicant claimed to have been arrested many times since the murder of the Chief Minister of Punjab Province in 1996 and to have been tortured by police.

3. The statement made reference to “respondent number two” and “the respondents” and complained of “the respondents” not giving weight to his evidence.  This is curious because at that time no “respondents” had been identified, and this is a term which is given to proceedings before a Court, and would not be expected in a statement attached to an application for a protection visa.

The delegate

1. The applicant was invited to attend an interview with the delegate, but did not respond to the invitation.  The delegate refused the application having regard to the claims as made, including the applicant’s return to India from a previous stay in Australia, which was seen as being inconsistent with someone who claimed to fear persecutory harm.  The delegate also had regard to relevant country information (CB 61 to CB 70).

The tribunal

1. The applicant applied to the Tribunal for review on 24 August 2010 (CB 71 to CB 74).  He attended a hearing before the Tribunal on 21 October 2010 (CB 97).  The Tribunal’s account of what occurred is contained in its decision record ([23] at CB 111 to [40] at CB 116).

2. The Tribunal found that there were significant discrepancies between the applicant’s claims in his written statement and his evidence at the hearing with the Tribunal ([46] at CB 118).

3. The Tribunal found the discrepancies were so significant that they raised serious doubts about the applicant’s claims of political involvement and to have come to the adverse notice of the authorities as a result ([49] at CB 118 to CB 119).

4. The Tribunal also found that both accounts of political involvement (fear because of involvement with the Congress Party and also fear because of involvement with their opponents, a Sikh party) were significantly undermined by the fact that the applicant had been in Australian from December 2007 to November 2008 during which time he did not seek protection and then returned to India after his stay ([52] at CB 119).

5. The Tribunal did not accept that the applicant had any significant involvement in the SSF or the Khalistan movement, or that he was targeted by the authorities or suffered harm from them ([53] at CB 119 to CB 120).

6. As to a further claim raised at the hearing, that he feared harm because of his activities in a local election in 2009, the Tribunal found that it was not credible that the applicant would have omitted such a claim from his original written statement ([56] at CB 120).

7. The Tribunal also found as significant his delay in applying for a protection visa after returning to Australia, and instead waiting until two days before the expiry of his visitor visa.  The Tribunal found this claim to have been manufactured to boost his profile as a person who experienced political problems in India ([57] at CB 120 to [58] at CB 121).

8. The Tribunal also found the applicant’s explanation for his failure to attend the interview with the Minister’s delegate “highly problematic” ([59] at CB 121).

9. In all, therefore, the Tribunal found that the applicant had not given a truthful account of his circumstances in India, the reason he left, and his fear to return.  The Tribunal did not accept the large part of the applicant’s factual claims and therefore affirmed the delegate’s decision that the applicant was not a person to whom Australia owed a protection obligation as a refugee.

Before the court

1. The application before the Court sets out three grounds.  The applicant appeared at the hearing in person.  He was assisted by an interpreter in the Punjabi language.  Ms A Crittenden appeared for the first respondent.

2. In addition to the Court Book, I also took into evidence the affidavit of Alissa Maree Crittenden of 17 March 2011, annexing a transcript of the Tribunal hearing and the CDs containing the recording of that hearing.

Complaints before the court

1. When given the opportunity, the applicant put three matters before the Court.  The first, to complain that the Tribunal had already made up its mind and that there had not been a proper consideration of his case.  The applicant provided no particularity whatsoever in support of this complaint, nor did he provide any evidence, despite the opportunity provided to him at the first Court date.

2. I understood the applicant’s complaint to be that the Tribunal was biased.  But all that the applicant could say in support of this very serious allegation was that the Tribunal did not believe him when he told the Tribunal that he had been tortured, that the Tribunal did not believe his “story”, and that therefore it had already made up its mind about his claims.

3. Whether talking about bias, or even the apprehension of bias, it is the case, as I sought to explain to the applicant today, that such allegations are very serious as they go beyond an allegation of error on the part of the Tribunal and really seek to strike at the heart of the integrity of the relevant decision maker itself, in this case the Tribunal (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749).

4. It is indeed the case that bringing a closed mind to proceedings is part of the relevant test for bias, but as the authorities make perfectly clear, because of the seriousness of such an allegation it must be clearly made, that is, as Ms Crittenden submitted, “properly particularised”, and there must be evidence in support, such that it can be distinctly proven.

5. Bearing in mind the test for bias, and bearing in mind even the test for the apprehension of bias, that is, whether the well-informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the proceedings, this allegation must fail.  There is nothing in the material that has been put before the Court to support the making of any such allegation, let alone that it can be made out.

6. What is perhaps not well understood by the applicant, or whoever assisted him with this complaint, is that the Tribunal does not have to believe, and did not have to believe, anything, or even a part of what he said.  It is for the applicant to put his case to the Tribunal and it is for the Tribunal to consider what is put before it and to make relevant findings of fact.  Such relevant findings of fact include findings on credibility as in this case are for the Tribunal to make (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 (“Durairajasingham”)).  The Tribunal made such findings and gave reasons for these findings.  Without anything else, no legal error is revealed.

7. The applicant’s second complaint was that the Tribunal had an expectation that he would provide proof or evidence in support of his claims.  Of course such an expectation, as was explained in Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 at [16] per Hill J, may in some circumstances lead to a finding of jurisdictional error. The expectation that an applicant must provide corroboration for his claims may lead to such error. But that circumstance does not arise in this case. It is not apparent in this Tribunal’s decision. The reason that this Tribunal affirmed the delegate’s decision is that it disbelieved the applicant’s evidence. That is not legal error on its own, and the Tribunal gave cogent reasons for that disbelief. Again, therefore, no error is revealed in these circumstances.

8. A third complaint that the applicant put to the Court today is that he had a conversation with his wife who told him that he would be persecuted if he were to return to India.  Indeed, the applicant repeats that he would be tortured and persecuted if in fact he were to return to India.  The applicant told the Court that if there were a change of state government in his area in India next year he would then return.

9. None of this goes towards revealing legal error on the part of the Tribunal.  First, the applicant’s assertion, or his wife’s assertion, that he would be persecuted on return merely seeks to engage this Court in conducting impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568). That the applicant would like to stay in Australia until 2012 is not a matter that reveals error on the part of the Tribunal, which was statutorily and jurisdictionally charged with reviewing the refusal of the protection visa application. In short, again, this is an attempt by the applicant to put before this Court matters that go to the merits of his refugee claims, but do not go to the issue of revealing relevant legal error on the part of the Tribunal.

The grounds of the application

1. In relation to the grounds of the application, the applicant was unable to assist the Court.  The applicant told the Court that the grounds were drafted by an unknown person.  This had been arranged through a friend, who had since returned to India.  So all that the Court is left with are the grounds as stated in the application.

2. The first ground asserts a breach of s.424A of the Act. It is not clear however what information the Tribunal should have given in writing to the applicant. The applicant refers to: “… the Tribunal member made up its mind to dismiss the application, such information…”. Apart from being perhaps another expression of bias, with which I have already dealt with, it may also be a complaint that the Tribunal should have put to him pursuant to s.424A its adverse views about his evidence at the hearing before it.

3. While the applicant relies on SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162; (2005) 79 ALJR 1009 (“SAAP”), no mention is made in the application of the later High Court judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 (“SZBYR”). The Tribunal’s adverse views of the applicant’s evidence are not “information” for the purposes of s.424A (SZBYR at [18], see the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 123; (2004) 206 ALR 471 (“VAF”)).

4. The Tribunal’s obligation pursuant to s.424A is to put to an applicant “information” that is the reason, or a part of the reason, for affirming the delegate’s decision. And while the majority of judges of the High Court in SAAP did indeed say that that needed to be done in writing, in the later case of SZBYR the High Court made it very clear that the Tribunal’s adverse views of an applicant’s claims, his evidence, are not “information” for the purposes of s.424A.

5. In this way, therefore, the obligation in s.424A was not engaged in relation to the Tribunal sending to the applicant its written views of the evidence given by him at the Tribunal hearing. Nor does s.424A require the Tribunal to provide its draft reasons for decision as may also be implied by the applicant. Ground one is not made out.

6. Ground two asserts another breach of s.424A, in that the Tribunal relied on country information about the SSF, the Khalistan movement and the 2009 local elections, and that the Tribunal did not give this information to the applicant before the hearing pursuant to s.424A.

7. The short answer to the applicant is that all this “information” was of a non-impersonam nature, and therefore was excluded from the operation of s.424A(1) by s.424A(3)(a). Ground two is not made out.

8. I note for the sake of completeness the written submissions by the Minister, which in one sense go beyond the complaints made by the applicant. They deal more comprehensively with s.424A. In this regard, as I have already said, the reason the Tribunal affirmed the delegate’s decision was that the Tribunal found the discrepancies and inconsistencies in the applicant’s evidence to be of such character as to lead it to the conclusion that he had not given a truthful account of claimed events in India. On the authority of SZBYR this is not “information” for the purposes of s.424A(1). That was the reason that the delegate’s decision was affirmed.

9. At the risk of falling over the line into the process of unbundling the Tribunal’s reasons, a course found to be unnecessary by the High Court in SZBYR when the meaning of s.424A is properly understood, I note again, for the sake of completeness, that in any event, to the extent that the Tribunal referred to the applicant’s immigration movement records, his failure to attend the departmental interview and his delay in applying for a protection visa, then generally these matters are matters that would fall within other exceptions contained in s.424A(3).

10. What the applicant told the Tribunal for the purposes of review, falls within the exceptions of s.424A(3)(b).

11. What the applicant gave in writing in connection to his protection visa application falls within the exception in s.424A(3)(ba) from the obligation in s.424A(1).

12. In any event the Tribunal put all of this “information” and, for that matter, its adverse views to the applicant at the hearing.  The Tribunal’s account of the hearing is not inconsistent with the transcript of the Tribunal hearing put before the Court.

13. The evidence before the Court therefore, plainly supports the proposition that the Tribunal used the facility available to it through s.424AA to discharge any obligation pursuant to s.424A(1) (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).

14. While this addresses the Tribunal’s reference to departmental movement records and the like, I should note the Tribunal’s adverse views are not “information” for the purposes of s.424A(1) (SZBYR at [18] see the reference to VAF).  Nonetheless, there is no error in the Tribunal proceeding in this fashion.

15. I should just note, as the Minister also submits, that pursuant to s.424A(2A) the Tribunal was not obliged to provide written particulars of that information to the applicant, as is asserted by the applicant in both grounds one and two. In all, ground two is not made out.

16. Ground three asserts a denial of procedural fairness because the Tribunal reached certain adverse conclusions without giving the applicant the opportunity to be heard in relation to those matters.

17. There are a number of answers to the applicant’s complaint.

18. First, this is a case to which s.422B applies. Therefore, the complaint in ground three can properly be seen as a complaint of a breach of s.424A of the Act. Division 4 of Pt.7, in which s.424A appears is said to be the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that Division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204; (2010) 84 ALJR 507).

19. In this light, this complaint is just another expression of the complaint in ground one and fails for the same reason.

20. But if the applicant seeks to assert some failure of procedural fairness pursuant to s.425, then again any plain reading of its unchallenged account of the hearing reveals that the Tribunal did more than “sufficiently indicated” to the applicant its concerns about his claims, and in particular the credibility of his evidence. (See in particular [28] at CB 112, [30] at CB 113, [33] at CB 114, [37] and [38] at CB 115 of the Tribunal’s record, and what was relevantly said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515.)

21. Therefore no complaint under s.425 of the Act is made out.

22. But even if principles of procedural fairness at general law were to be applied in this case, the material before the Court reveals that the applicant was given an opportunity to put forward his claims and evidence.  The transcript of the hearing and the Tribunal’s decision record reveal that the applicant knew the case against him and was invited to comment in response.  No error is revealed in these circumstances.

23. For the sake of completeness, I should note that the Tribunal’s findings, including the findings on credibility, were all made within jurisdiction (Durairajasingham) and were all open to the Tribunal to make on what was before it and for which it gave cogent reasons.

Conclusion

1. For the application to succeed, the Court would need to discern at the very least jurisdictional error on the part of the Tribunal.  I cannot see any such error either arising from the written statement, nor from what the applicant said today, nor from what the Court can discern from the material put before it.  In the absence of any such discernable error I will therefore dismiss the application.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  4 April 2011