SZOZT v MIAC

[2011] FCA 1245

FEDERAL COURT OF AUSTRALIA

SZOZT v Minister for Immigration and Citizenship [2011] FCA 1245

Citation:		SZOZT v Minister for Immigration and Citizenship [2011] FCA 1245
Appeal from:		Application for Leave to Appeal: SZOZT v Minister for Immigration and Citizenship [2011] FMCA 411
Parties:		SZOZT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 963 of 2011
Judge:		FOSTER J
Date of judgment:		3 November 2011
Catchwords:		MIGRATION – whether a Federal Magistrate erred when attempting to explain the High Court decision in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 – whether, if error is demonstrated, any relief should be granted
Legislation:		Federal Court of Australia Act 1976 (Cth), s 24(1A) Migration Act 1958 (Cth), s 91R(3) Federal Magistrates Court Rules 2001, r 44.12(1)(a), r 44.12(2)
Cases cited:		SZOZT v Minister for Immigration and Citizenship [2011] FMCA 411 related Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 discussed
Date of hearing:	1 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr J Smith
Solicitor for the First Respondent:	DLA Piper Australia
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 963 of 2011

BETWEEN:

SZOZT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	3 NOVEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The applicant pay the first respondent’s costs of and incidental to the Application.   

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 963 of 2011

BETWEEN:

SZOZT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	3 NOVEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has applied for leave to appeal from a judgment of a Federal Magistrate (SZOZT v Minister for Immigration and Citizenship [2011] FMCA 411). The Federal Magistrate dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) by which the Tribunal affirmed a decision of a delegate of the Minister (the delegate) not to grant a protection visa to the applicant.

2. The Federal Magistrate dismissed the application before him pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001. That is to say, at the hearing of that application, the Federal Magistrate was not satisfied that the application had raised an arguable case for the relief claimed. For that reason, he decided to dismiss the application. Such a decision is interlocutory (r 44.12(2)). Leave to appeal is required before an appeal can be lodged from an interlocutory decision of a Federal Magistrate made pursuant to r 44.12(1)(a) (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).

   THE APPLICANT’S CLAIMS

3. The applicant is a citizen of India who arrived in Australia on 6 April 2010.  He entered Australia on that day pursuant to a Subclass 456—Business (Short Stay) Visa which remained in force until 6 July 2010.  On 19 May 2010, he lodged an Application for a Protection (Class XA) Visa (protection visa) with the Department of Immigration and Citizenship.  In a statement forming part of that application, the applicant claimed that he was a homosexual and had been involved in homosexual relationships since he was about 15 years of age.  (He is now 39.)  He claimed that, because of his sexual orientation, he had been rejected by his family and had subsequently suffered other community rejections in Mumbai and Chennai for the same reason.  The applicant also claimed that he was rejected by the Muslim community of which he was part because of his homosexuality.  He went on to claim that he will be killed if he is required to return to India.

   THE DELEGATE’S DECISION

4. The delegate interviewed the applicant on 21 September 2010.  On 27 September 2010, the applicant provided some material to the delegate which he said supported his claims.  That material comprised three photographs, an uncertified copy of the passport of the man who the applicant claimed was his long-term lover and a copy of a letter apparently dated 25 November 1994 from an organisation known as “Islahul Islam Sangham” (the IIS).  That letter appears to have been signed by the president of the IIS and is in the following terms:

   As per the committee meeting held today after the Juma prayer, The IIS decided that [the applicant and his friend] have been included in homeo sexual relationship which is not allowed in Islamic Law of Sharee-ath,

   The committee hereby informs you that the above said persons is dismissed from this Jama-Ath with an Immediate effect. 

5. On 28 September 2010, the delegate refused to grant a protection visa to the applicant.  He delivered reasons for that decision on the same day.

6. The delegate did not accept the applicant’s claims concerning his homosexuality.  He said that those claims were vague and unsubstantiated.  The delegate concluded that, if the claims had been true, the applicant would have been able to provide details of his views and activities in order to support his claims.  He was unable to do so. The delegate was not satisfied that the IIS letter was genuine.  In the end, the delegate stated that he was not satisfied that the applicant was homosexual.  He also found that, even if he had been satisfied that the applicant was homosexual, he was not persuaded that “… the situation is still persecutory for homosexuals in India”.

   THE TRIBUNAL PROCEEDINGS

7. On 22 October 2010, the applicant lodged an Application for Review with the Tribunal.

8. The Tribunal sent a letter dated 3 December 2010 to the applicant inviting him to appear at a Tribunal hearing scheduled for 12 January 2011.  The applicant completed and returned to the Tribunal the Response to Hearing Form enclosed with the Tribunal’s letter dated 3 December 2010.

9. The Tribunal hearing took place on 12 January 2011, as scheduled. 

   THE TRIBUNAL DECISION

10. On 27 January 2011, the Tribunal sent a letter dated that day to the applicant.  In that letter, the Tribunal informed the applicant that the Tribunal had decided to affirm the delegate’s decision refusing his application for a protection visa.  The Tribunal sent a copy of its Decision Record dated 25 January 2011 with its letter of 27 January 2011.

11. After briefly referring to the relevant law, the applicant’s claims and the delegate’s decision, the Tribunal recorded in detail the course of the hearing before it and referred to the material provided to it by the applicant in support of his application.

12. At [20]–[64] of it Reasons, the Tribunal summarised the applicant’s claims and recorded in considerable detail questions which had been asked of him and the answers which he gave to those questions.  In particular, the Tribunal recorded the fact that it had raised with the applicant the many difficulties which it had with his claims.

13. At [51]–[52], the Tribunal said: 

    51. The applicant was asked for comments on information arising from an interview with an officer of the Department in accordance with s.424A. In the Departmental interview the applicant was not recorded to have made any reference to any committee making a declaration about him before his marriage. The possibility that the applicant was making up claims of a second committee before his marriage because of findings by the Department about the date of the letter from the Islahul Islam Sangham was discussed. The applicant did not request an adjournment of the review and commented that the letter presented was the one he received before his marriage. After his marriage he did not receive any kind of letter.

    52. The applicant was asked why he would not then refer to the letter from the claimed first committee in his written statement. The applicant explained that this letter referred to his being outcast. The applicant indicated that the letter presented he received before his marriage and later he received a second letter.

14. The point being there made was that the IIS letter was dated 25 November 1994, some two years before the applicant’s marriage.

15. At [61]–[64] of its Reasons, the Tribunal said:

    61.In relation to whether he had fabricated the claim to be homosexual and that he was not in fact homosexual, the applicant explained that someone else had assisted him in preparing the written statement and he did not know much about this.  Seeking protection, he had come to Australia.  Asked about the fact that his oral evidence to the Tribunal also seemed to be inconsistent, for example in relation to whether his first sexual encounter was before or after the marriage of [name removed]’s sister was discussed. The applicant explained that whatever he had said at the hearing was true.

    62. In relation to his activities in Australia, the applicant provided a membership card of the Columbian Hotel in Sydney city that he had attended on three occasions.  He had been there for the New Year with a person whose name he could not recall.  The applicant first attended the hotel in December. Asked about any other activities associated with being homosexual, the applicant explained that he had only been to the hotel.  He explained that he had seen games played there.

    63.The applicant was asked for comments in relation to information he gave the Department orally during his interview with them.  In the interview he was asked about activities he had undertaken in Australia and indicated that he had been told about Oxford Street and organisations which assisted or were directed towards the interests of people who are homosexual.  The applicant indicated that he had thought about involvement at that time but had not done so.  The applicant explained that he was searching for it but was unable to find Oxford St.  The possibility that the applicant’s limited involvement with gay culture in Australia indicated that he was not in fact homosexual was discussed.  The applicant explained that after his Departmental interview he had attended the Columbian Hotel on three occasions.  The applicant explained that he was not familiar with Sydney, Oxford St and the city streets.  He found Oxford Street on the internet but did initially not go there because he does not go out alone in Australia very much.  When asked about the fact that he had travelled extensively in India and other countries and that it may be difficult to believe he did not like going out and could not go to Oxford Street, the applicant explained that he knew about Oxford Street and he had mentioned this to the Department.

    64. The effect of s.91R(3) was discussed with the applicant. The fact that having arrived in Australia in April 2010 and only joined the Columbian Hotel in December 2010 may indicate he had engaged in this conduct only for the purpose of this application was discussed. The applicant explained that he knew about such activities but he could not go in the beginning, afterwards he went to the Columbian Hotel. The applicant indicated that he just wanted [name removed] to be in Australia.

16. The Tribunal rejected the core claims made by the applicant, including his claim to be a homosexual.  The Tribunal considered that the IIS letter was a fabrication.

17. At [79], the Tribunal said: 

    79. For these reasons, the Tribunal does not believe the applicant has presented a truthful account of his sexuality, his past experiences in India or his fears of return there.  The Tribunal does not believe the applicant is homosexual or has ever had a homosexual relationship or experienced difficulties in India as a result.  The Tribunal does not believe any person in India believes that the applicant is homosexual nor that there has been any publication of such a belief in any form.  In the Tribunal’s view, being aware that those who are homosexual may experience difficulties in India he has simply fabricated a claim in this regard to try to obtain a visa to remain in Australia. 

18. At [80], the Tribunal referred to the photographs produced to it by the applicant and said that this material went no further than establishing that his claimed lover was nothing more than a good friend.

19. At [81]–[82], the Tribunal said: 

    81. The Tribunal also believes that the applicant’s conduct in Australia supports the view that he is fabricating his claims to being homosexual.  He has presented a membership card from the Columbian Hotel and has claimed to have attended those premises on three occasions since December 2010.  The Tribunal accepts that he has done so, however does not believe that this evidences that he is homosexual or that he engaged in this conduct for any purpose other than strengthening his application to be a refugee.  He only commenced his involvement with the Columbian Hotel after the interview with the Department when he had indicated that he had heard information about gay organisations and lifestyle in Australia.  This was a substantial time after his arrival in Australia and he has not taken any further action.  He claimed during the hearing before the Tribunal that despite knowing of areas of gay culture he did not go out alone and had difficulty locating it which is not plausible in the Tribunal’s view.  The applicant is well travelled in a range of countries and the Tribunal does not accept he would he so unwilling to engage to a greater extent with gay culture in Sydney were he homosexual. Having indicated during his interview with the Department that he had information about such matters, he has engaged to the most limited extent with the gay community in Sydney.

    82.In the Tribunal’s view, the available evidence supports the conclusion that the applicant has become a member of and attended on limited occasions the Columbian Hotel only for the purpose of presenting this information to strengthen his claim to be a refugee. Where he genuinely interested in engaging with gay culture in Sydney, one could have expected that he would have taken greater steps to do so. For these reasons, the Tribunal must disregard the applicant’s conduct in Australia in determining whether he holds well-founded fear in accordance with the requirements of s.91R(3) of the Act.

20. At [83], the Tribunal repeated its adverse views of the applicant’s credibility and re-iterated that it did not accept the applicant’s story.  It then affirmed the delegate’s decision.

    THE FEDERAL MAGISTRATE’S DECISION

21. On 17 February 2011, the applicant sought judicial review of the Tribunal’s decision.

22. The Grounds of Review specified in his Application were:

    1.The decision made by RRT is Jurisdictional error.

    2.Breach of Natural Justice.

    3.Will be filed later.

23. Those grounds of review were manifestly inadequate.  They did not disclose any basis upon which the Federal Magistrates Court could interfere with the Tribunal’s decision.

24. The Federal Magistrate gave judgment at the conclusion of the hearing on 1 June 2011 (SZOZT v Minister for Immigration and Citizenship [2011] FMCA 411). After referring to the applicant’s grounds of review and quoting [72]–[80] of the Tribunal’s decision, the Federal Magistrate said (at [10]–[19]):

    10.The applicant was not able to advance any legal arguments in support of his application.  He stated that he was unable to return to India.  The applicant is understandably concerned that he was not believed by the Tribunal.  However, he has not advanced any coherent argument pointing to any arguable case of jurisdictional error by the Tribunal. 

    11.Because the applicant is self-represented, I have myself considered whether there may be an argument of jurisdictional error available to him. Two possible arguments, in particular, occurred to me. The first relates to the Tribunal’s process of purported disclosure pursuant to s.424AA of the Migration Act, set out at [51] of the Tribunal’s reasons, (court book, page 128). The Tribunal incorrectly identified s.424A of the Migration Act instead of s.424AA.

    12.The discussion of what occurred at the hearing in relation to that disclosure is brief and, in particular, it is not clear whether the Tribunal clearly explained to the applicant his entitlement to respond after the hearing. The Tribunal simply states that the applicant did not request an adjournment of the review. The Minister submits that neither s.424A nor s.424AA were engaged. This is because the information discussed with the applicant was information he provided at the oral interview before the Department which did not itself undermine, in any way, his protection visa application.

    13.The issue for the Tribunal was apparent inconsistencies between that information and the later information provided to the Tribunal. I agree that inconsistencies between oral information provided to the Department and other information provided later to the Tribunal are not information for the purposes of s.424A(1) (SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]-[19). The prudent approach taken by the Tribunal in purporting to go through a process of oral disclosure does not point to any arguable case of jurisdictional error.

    14.The other possible issue concerned the Tribunal’s examination of s.91R(3) of the Migration Act. There are many difficult and unhelpful provisions in the Migration Act with which the Tribunal is required to grapple. Section 91R(3) is, in my view, the most difficult and unhelpful. It is so difficult and unhelpful that Tribunal members prudently attempt to avoid dealing with it at all. In the present case, the Tribunal grappled with the application of that provision at [81] and [82] of its reasons (court book, pages 135-136):

    [quote not reproduced]

    15.The Minister submits that the Tribunal was required to disregard the identified conduct of the applicant in Australia once the Tribunal had determined that the applicant had engaged in that conduct for the purposes of strengthening his application to be a refugee.  The Minister submits that on the authority of the decision of the High Court in Minister for Immigration v SZJGV (2009) 238 CLR 642, the Tribunal was, nevertheless, entitled to take the conduct into account in reaching its credibility conclusions.

    16.In my view, that analysis, which is apparently the analysis followed by the Tribunal in this case, reflects a misunderstanding of the High Court’s decision.  The High Court in SZJGV stated that the application of s.91R(3) requires three tasks. The first task is to identify the relevant conduct in Australia and to determine whether the conduct, in fact, occurred. The second task if the conduct, in fact, occurred is to determine the applicant’s motivation for that conduct. The third task, if the Tribunal determines that the sole motivation for that conduct was to strengthen his protection visa claims, is to determine whether the applicant was successful in achieving his or her objective (see SZJGV at [64]).

    17.In my view, it is only if the answer to the last question is “yes” that the Tribunal is required to disregard the conduct. In the present case, it is apparent from a fair reading of the Tribunal’s decision that the Tribunal did not consider that the applicant’s objective had been successful. On the contrary, the Tribunal stated that the applicant’s conduct in Australia supported the view that he was fabricating his claims. Accordingly, in my view, the Tribunal was not required to disregard the applicant’s conduct pursuant to s.91R(3). To that extent, the conduct was taken into account.

    18.In any event, there was ample material before the Tribunal to support the Tribunal’s conclusion that the applicant’s essential claims for protection had been fabricated. Even if an arguable case of jurisdictional error in the application of s.91R(3) of the Migration Act were identified, the decision of the Tribunal was independently supported by its other credibility conclusions. In those circumstances, I would have refused relief in the exercise of the Court’s discretion even if I had identified clear error in relation to the application of s.91R(3).

    19.I conclude that the applicant has failed to identify an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

    THE APPLICANT’S CASE IN THIS COURT

1. In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court (at 398–399) held that, in the general run of cases in which leave to appeal from an interlocutory judgment is sought, the applicant for leave must demonstrate that the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong.

2. The Full Court went on to say that there were no rigid rules which should be applied in all cases.

3. At 399–400, the Court said:

   In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice—concerning which the High Court has given (see Adam P Brown Male Fashionsv Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that “a tight rein” should be kept on appeals—and an interlocutory decision determining a substantive right—where leave will more readily be granted. Although the judgments of Jordan CJ in Re Will of Gilbert (deceased) (1946) 46 SR(NSW) 318 at 323 and of the majority of the High Court in Adam P Brown Male Fashions Proprietary Ltd v Philip Morris Inc (supra) are not concerned with the question of the granting of leave, they emphasize this distinction, which was applied to the granting of leave in Ex parte Bucknell (1936) 56 CLR 221 and Sharp (supra).  In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute.  If they are wrong, significant consequences will be suffered by the applicants.  We regard this as a clear case for the grant of leave.

4. I shall apply those principles in the present case. 

5. At the hearing before me, the applicant did not seek to support his application with any argument.  Nor did the applicant file and serve any Written Submissions as he had been directed to do.

6. In the draft Notice of Appeal filed with his Application for Leave to Appeal, the applicant specified the following grounds of appeal:

   2.The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 1 June failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

   3.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 

7. These grounds are not proper or adequate grounds to be raised in a Notice of Appeal.  They do not identify any error on the part of the Federal Magistrate nor do they raise any arguable ground of appeal. 

8. Notwithstanding the applicant’s failure to support his Application, Counsel for the first respondent, whilst supporting the outcome before the Federal Magistrate, made submissions directed to demonstrating that the Federal Magistrate erred in one respect in his articulation and application of the relevant legal principles.  Counsel submitted that the error was of such significance that it should be corrected by this Court. 

9. The error to which the first respondent points is said to have arisen when the Federal Magistrate came to address the second matter which he considered should be looked at, notwithstanding that it had not been raised or argued by the applicant. This second matter involved the correct interpretation of s 91R(3) of the Migration Act 1958 (Cth) (the Act). 

10. At [17] of his Reasons, the Federal Magistrate appears to have concluded that the Tribunal erred in its interpretation of s 91R(3) and thus erred in the way in which it applied the section in the present case.

11. Section 91R is in the following terms:

    91R     Persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

    (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

    (b)the persecution involves serious harm to the person; and

    (c)the persecution involves systematic and discriminatory conduct.

    (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (3)For the purposes of the application of this Act and the regulations to a particular person:

    (a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

    disregard any conduct engaged in by the person in Australia unless:

    (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

12. The correct interpretation of s 91R(3) has been authoritatively determined by the High Court in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642. The Justices who were in the majority in that case were French CJ and Crennan, Kiefel and Bell JJ. There were, however, two joint judgments: That of the Chief Justice and Bell J and that of Crennan and Kiefel JJ.

13. In SZJGV, after discussing the legislative context in which the provision appears, French CJ and Bell J said (at [9] (pp 651–652)):

    9.The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty. In the twelfth edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained:

    “Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.”

    (Footnote omitted.)
    …

14. At [12]–[13] (pp 653–654), their Honours said:

    12.The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word “whether”. However, the Solicitor-General’s submission does lead to consideration of an alternative construction, which is to read “whether” as “that”: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term “whether” in para (a). But such misuse is not entirely without precedent. In this case, the substituted text corrects what would be an obvious drafting error were “whether” to be construed according to its ordinary and natural meaning. On the alternative construction, para (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in para (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the sub-section and avoids absurd results. Upon that construction the appeals must be allowed.

    13 As to what is necessary to satisfy the condition in para (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin.

    Crennan and Kiefel JJ took a similar view.

15. At [54] (p 666), their Honours held that the only conduct to which s 91R(3) is directed is that which may be weighed in favour of acceptance of the claimant’s claims. At [58]–[65] (pp 667–669), their Honours set out their interpretation of the provision and their reasons for that interpretation. At [64] (p 669), their Honours said:

    64 The approach of the Full Court was to regard sub-s (3) as engaged once the inquiry in para (b) was answered. This does not give sufficient weight to the underlying objective of sub-s (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.

16. It appears that the first respondent made submissions before the Federal Magistrate which correctly captured the essence of the reasoning in SZJGV (see the Federal Magistrate’s Reasons at [15]). Those submissions were not accepted.

17. At [16] of his Reasons, the Federal Magistrate said that the High Court in SZJGV had stated that the correct application of s 91R(3) required three tasks to be undertaken. In support of that proposition, the Federal Magistrate referred to [64] of the judgment. I have extracted that paragraph at [39] above.

18. I do not think that the remarks of the Federal Magistrate made at [16] of his Reasons accurately summarise the reasoning of the Justices who comprised the majority in SZJGV. In particular, the introduction of the third task postulated by his Honour is apt to mislead. The High Court approached the matter upon the basis that s 91R(3)(a) hypothesises a chain of reasoning which ought not be applied unless the condition in s 91R(3)(b) is satisfied with respect to the relevant conduct. That reasoning does not involve considering whether the claimant was successful in his objective. The introduction of the third task by his Honour into his Honour’s analysis led to the somewhat confusing observations which he made at [17] of his Reasons.

19. In SZJGV, the majority held that, if the relevant conduct is to be used favourably to the claimant, condition (b) must be satisfied.  On the other hand, if it is to be used adversely to the claimant as an integer undermining his or her credibility, the relevant conduct need not be disregarded for that purpose.  That is to say, if the decision-maker comes to the conclusion that the conduct was engaged in for the sole purpose of strengthening his or her claim to be a refugee, that circumstance may be taken into account in assessing the claimant’s credibility.

20. In the present case, the Tribunal correctly applied s 91R(3). Its reasons (at [81]–[82]) make clear that it formed the view that the applicant’s sole motive in going to the Columbian Hotel was to strengthen his claim to be a refugee. The Tribunal disregarded that conduct for that purpose. However, it took that conduct into account when making its adverse credibility findings against the applicant. It was entitled to do so and there was no error in its approach.

21. The Federal Magistrate erred when he attempted to summarise the effect of SZJGV at [16] of his Reasons. However, for reasons which he explained at [18], this error made no difference to the result.

22. The decision of the Federal Magistrate will stand notwithstanding the error which he made. 

23. For all of the above reasons, leave to appeal will be refused with costs. 

24. There will be orders accordingly.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        3 November 2011