SZQQA v Minister for Immigration & Anor
[2014] FCCA 1923
•26 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQQA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1923 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether there was “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review” – meaning of “information” for the purposes of s.424A of the Migration Act 1958 (Cth) – whether information provided to a differently constituted Tribunal constitutes information “that the applicant gave for the purpose of the application for review” by the Tribunal whose decision is the subject of review – whether decision of Tribunal is irrational – whether Tribunal undertook its statutory task in concluding state protection was available in relation to the harm the applicant feared would occur to him if he were to be returned to that state – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 424A(1), 424A(3), 424A(3)(b) |
| Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Montero v Minister for Immigration & Anor [2014] FCCA 946 NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 SZOHH v Minister for Immigration & Anor [2010] FMCA 501 SZSRG v Minister for Immigration & Anor [2014] FCCA 174 SXSB v Minister for Immigration and Citizenship [2007] FCA 319 Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZQQA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1598 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 February 2014 |
| Date of Last Submission: | 11 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia |
| Counsel for the Respondents: | Mr M. Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1598 of 2013
| SZQQA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of India, claimed before a delegate of the first respondent (Minister), and before the second respondent (Tribunal), that he feared persecution if he was returned to India. If that were to occur, the applicant claimed, he will be killed by “goondas”[1] from the Communist Party of India (Marxist) (CPIM) in Kerala, and he “will be arrested by authorities and … put … behind the bar for long time”.[2]
[1] At CB255, [1], the Tribunal defines “goondas” as “thugs”.
[2] CB18
The Tribunal did not accept the applicant was a witness of truth. The Tribunal also found that the government of the state in which the applicant resided, Kerala, could protect the applicant from the harm he claimed he feared. The Tribunal, therefore, affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now claims that in affirming the Tribunal’s decision, the Tribunal made three jurisdictional errors. First, he claims the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (Act) because it relied on two pieces of information without first informing the applicant it was going to rely on that information. Second, the Tribunal’s conclusion that the applicant was not a person to whom Australia owed protection obligations was irrational. And third, the Tribunal concluded the government of the state of Kerala could protect the applicant from the harm he feared without considering how the government would protect the applicant from such harm.
Ground 1 - Failure to comply with s.424A
The applicant claims there were two items of information which the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision” of the delegate. That being so, the applicant submits the Tribunal was required by s.424A(1) of the Act, but failed, to provide to the applicant particulars of the information, ensure the applicant understood as far as practicable why the information was relevant to the application for review before it, and invite the applicant to comment and respond to it. The two items of information were “oral evidence given by the applicant that in 1996 and 2010 he had been “taken by the police” in Kerala”; and “a court order made by the Judicial First Class Magistrate Court-1 Thiruvananthapuram dated 28 March 2011, indicating that he had been “charged . . . in connection with the killing of the policeman” in 1991”.
There is no dispute the Tribunal did not provide to the applicant particulars of these two items of information, or ensure the applicant understood as far as practicable why the information was relevant to the application for review before it, or invite the applicant to comment and respond to it. The Minister submits, however, that the Tribunal was not obliged by s.424A(1) of the Act to do so because the information was not “information” within the meaning of s.424A of the Act.
The principal question that arises, therefore, is whether the information identified by the applicant was information which the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision” of the delegate. That, in turn, requires me to first consider to what type of information the obligation imposed by s.424A(1) of the Act applies. As will be seen, whether or not any particular information is of the sort to which s.424A(1) applies depends on the role, if any, the claimed information played in the Tribunal’s reasoning for affirming a delegate’s decision. That will therefore also require me to set out the applicant’s claims and the Tribunal’s reasons for affirming the delegate’s decision.
Meaning of “information”
Subsection 424A(1) does not simply apply to “information”; it applies to information of a particular sort. It must be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. In SZSRG v Minister for Immigration & Anor I examined in some detail the meaning of this expression.[3] I there made a number of observations, some of which I repeat in the paragraphs below.
[3] [2014] FCCA 174
The following points may be made about the meaning of the expression “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”:
a)The “information” to which s.424A(1) applies must be information the Tribunal has in its mind.
b)The “information” must be in the Tribunal’s mind as part of a chain of reasoning – as a premise in an argument, in the logician’s sense – the conclusion of which is the affirmation of the decision under review.
c)The Tribunal must have in its mind the chain of reasoning of which the information forms part in advance of the Tribunal’s determination of the application for review before it.
d)The Tribunal intends to affirm the decision under review on the basis of the chain of reasoning of which the information forms part. It is that intention that triggers the obligations imposed by s.424A(1) of the Act.
e)The Tribunal’s intention is conditional. Before the Tribunal can act on its intention, and assuming the information does not fall within the category of information described in s.424A(3), the Tribunal must do that which s.424A(1) requires the Tribunal to do. That is, the Tribunal must give the applicant particulars of the information, it must ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of its being relied on in affirming the decision under review, and invite the applicant to comment or respond.
f)If the applicant comments or responds to the invitation, the Tribunal must consider the comments and response, before it considers whether to carry through with its intention to rely on the information.
Stated in a simple way, then, s.424A(1) requires the Tribunal to disclose to the applicant for the applicant’s comment full particulars of the information on which the Tribunal intends to rely as part of a chain of reasoning, the conclusion of which will be the affirmation of the delegate’s decision, and the chain of reasoning itself.
These observations are based solely on my consideration of the text of s.424A(1). But the High Court and the Federal Court have considered the section in a number of cases. What has proved troublesome is giving the word “information” a workable interpretation. Subsection 424A(1) requires that the information constitutes a reason or a part of the reason for the Tribunal’s affirming a decision. But a decision in any given case can be analysed to be based on many types of information, each of which can in some sense be said to constitute part of the reason for arriving at the decision. Potentially, therefore, s.424A(1) could be interpreted as requiring the Tribunal to disclose in advance of its decision every bit of information the Tribunal has in fact relied on in arriving at its decision.
That is not, however, how s.424A has been interpreted. The courts have placed limits on the type of information – or, to be more accurate, on the types of reasoning based on information – the Tribunal is required by s.424A(1) to disclose to an applicant. The limits have been expressed in negative and positive terms. Thus, it has been held that the “information” to which s.424A(1) applies “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”.[4] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[5]
[4] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 (Finn and Stone JJ) quoted with approval by the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).
[5] SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18])
A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) applies is that given by the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another.[6] In that case, the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations”.[7] And in Minister for Immigration and Citizenship v SZLFX and Another, the High Court said that for s.424A(1)(a) to be engaged, “the material in question should in its terms contain a rejection, denial or undermining of the review applicant’s claim to be a refugee”.[8]
[6] (2007) 235 ALR 609
[7] (2007) 235 ALR 609 at page 615 ([17])
[8] (2009) 238 CLR 507 at page 513 ([22])
The presence of the words “in their terms” in the High Court’s formulation suggests that to fall within s.424A of the Act the information must on its face disclose a rejection, denial or undermining of a claim. That, in turn, suggests that the information must contain some reasoning which links the information to the claim. But that cannot be what the High Court intended the expression to cover.
In my opinion, the information that is caught by s.424A of the Act is “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. Thus, it must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection.
Accordingly, whether the information which the applicant claims, and the Minister disputes, is information to which s.424A(1) applied depends on whether the Tribunal considered either item of information to be evidence that by itself contradicted or undermined an essential element of the applicant’s claim or was evidence that, in combination with other evidence the Tribunal accepted, led to the making of a finding of fact that by itself contradicted or undermined an essential element of the applicant’s claim. That requires an analysis of the applicant’s claims, and the Tribunal’s reasons for affirming the delegate’s decision, to which I now turn.
The applicant’s claim for protection
The applicant’s claim for protection was based on the following asserted facts: the applicant and members of his family support the Congress Party;[9] in 1991 the applicant’s brother was shot and killed by the police after a fight erupted between supporters of the Congress Party and supporters of the CPIM;[10] the applicant’s father pressed charges against the police for the brother’s death, naming the applicant and his two brothers as witnesses;[11] the police retaliated by charging the applicant and the applicant’s two brothers for the murder of their brother and a policeman;[12] the applicant was not aware of the charge against him until a lawyer told him in 2011;[13] the applicant was attacked and taken twice by police in 1996 and 2010; in 1996, the police attacked the applicant in his home and made him sign a blank piece of paper;[14] in May 2010, the applicant gathered with a group of 200-300 people to commemorate the death of his brother when the police attacked the group and forced the applicant to sign a blank piece of paper and another piece of paper that said he would not commemorate his brother’s death again;[15] the police also threatened to initiate a case against the applicant;[16] and after the attack in 2010 the applicant decided to leave India and made arrangements to travel to Australia.
[9] CB255, [1]
[10] CB255, [1]
[11] Affidavit of N M Mackay, 27.11.2013, page 51
[12] CB255, [1]
[13] CB258, [16]
[14] CB259-260, [21]
[15] CB259-260, [21] and CB261, [26]
[16] CB260, [21]
The Tribunal’s decision
The Tribunal accepted the applicant had witnessed the shooting of his brother.[17] The Tribunal, however, found it difficult to accept the applicant’s claims regarding the two occasions he was attacked and taken by the police.[18] The Tribunal had difficulty accepting the applicant was attacked in 2010 and threatened with being charged with something else if the applicant’s claim that he was charged with the murder of his brother and the policeman in 1991 was believed.[19] The Tribunal reasoned that if the police “had wanted to prevent him from commemorating his brother’s death they could have arrested [the applicant] on the murder charge at any time after 1991”.[20]
[17] CB257, [9]
[18] CB261, [25]
[19] CB261, [26]
[20] CB261, [26]
The Tribunal had difficulty accepting the applicant’s evidence that he knew nothing about the murder charge until 2011 and that the police did nothing for 20 years to pursue the case.[21] It found that the applicant was not “telling the truth about having been charged in a criminal case in relation to the killing of his brother and a policeman in 1991”.[22] The Tribunal was not satisfied that the applicant “was taken by the police, attacked, and forced to sign a blank piece of paper or an undertaking not to commemorate his brother’s death in 1996 or in 2010”.[23]
[21] CB261, [27]
[22] CB262, [29]
[23] CB262, [29]
The Tribunal, in its decision, stated that it did not seek to rely on any inconsistencies in the applicant’s evidence but rather had a “more fundamental” problem with his claims.[24] The issue for the Tribunal was that if the applicant’s claim regarding the 1991 murder charge was accepted, it made it difficult for the Tribunal to believe that the police were threatening to charge the applicant with something else in 2010 for commemorating the death of his brother.[25] The Tribunal concluded that it could not accept that the applicant was telling the truth regarding the two claims.[26]
[24] CB261, [26]
[25] CB261, [26]
[26] CB262, [29]
The Tribunal ultimately found there is not a real chance that the applicant will be persecuted because of his real or imputed political opinion or membership of a particular social group based on his relationship to his murdered brother if he returns to Kerala.[27] The Tribunal also went on to consider the complementary protection criteria and found that there is not a real risk that the applicant will suffer significant harm under s.36(2)(aa) of the Act.[28]
[27] CB265, [39]
[28] CB265-266, [40]-[43]
The first item of information – attacks of 1996 and 2010
In his written submissions, the applicant submitted that the first item of information, namely, the applicant’s oral evidence of the police attacks on him in 1996 and 2010 implied two propositions that led to the rejection of his claim for protection. The first is that the applicant’s claimed history of police violence was limited to two occasions, one in 1996 and the other in 2010; and the second is that the motivation for the police violence on both occasions was to stop the applicant commemorating the murder of the applicant’s brother. The applicant further submitted that this information constituted evidence that undermined his claim to have a well-founded fear of persecution in the form of imprisonment and being subjected to police violence.
It is unclear to me from the applicant’s written submissions the sense in which he there submits this evidence undermined the applicant’s case. As I understand it, the applicant relies on the fact that the Tribunal did not consider that the information manifested inconsistencies with other evidence the applicant gave. This, the applicant submits, distinguishes this case from the facts in SZBYR. Additionally, the applicant appears also to be relying on the Tribunal having put to the applicant at the hearing before it that it had difficulties accepting that the police attacked the applicant in 1996 and 2010 if the Tribunal was to accept the applicant’s evidence that he was charged in 1991.
Counsel for the applicant repeated the substance of these submissions in oral address. Counsel submitted the evidence of the 1996 and 2010 attacks undermined the applicant’s claim because it was not information which led to the existence of “perceived inconsistencies or disbelief”[29] that the Tribunal may consider to have arisen in the applicant’s claims. Counsel submitted that the information formed “the basis for the tribunal concluding that the instances of previous police violence had been limited to 1996 and 2010 and that the motivation for the police in doing that was to stop him commemorating the death of his brother”.[30]
[29] Applicant’s written submissions, [24]
[30] T11.10-T11.15
I do not accept the applicant’s submission that the oral evidence the applicant gave of his attacks in 1996 or 2010 was “information that the Tribunal” considered would be “the reason, or a part of the reason, for affirming the decision under review”. The Tribunal did not in its reasons consider the evidence to be evidence that by itself, or in combination with other evidence, undermined the applicant’s claims; and it is clear from its questioning of the applicant during the hearing that the Tribunal did not at any other time consider the evidence in that light. The Tribunal did not so consider the evidence because the Tribunal did not accept it. The applicant’s evidence of the 1996 and 2010 attacks is similar to the portions of the statutory declaration the High Court in SZBYR held not to be “information” to which s.424A applied. It was evidence that, if believed, would “have been a relevant step towards rejecting, not affirming, the decision under review”.[31]
[31] SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at page 616 [17]
Second item of information – court order
The second item of information the applicant claims was “information that the Tribunal” considered would be “the reason, or a part of the reason, for affirming the decision under review” is what purports to be an order issued by “Judicial First Class Magistrate Court – I Thiruvananthapuram”.[32] The applicant provided the purported court order to a differently constituted Tribunal (previous Tribunal).
[32] CB187-190
The applicant provided the purported court order to the previous Tribunal together with a written submission.[33] The applicant prepared the submission in response to a letter dated 4 August 2011 from the previous Tribunal which identified a number of concerns the Tribunal had with the applicant’s claims.[34] One of these concerns related to a letter dated 14 February 2011 the Department of Immigration and Citizenship (as it was then known) had received purportedly from an advocate which reported on the status of three pending cases dated 1991, 2002, and 2006 in which the applicant was identified as one of a number of accused.[35] In its letter the previous Tribunal noted that neither in his application for a protection visa, nor in his interview with the delegate did the applicant mention he was an “accused” or as having been the subject of a police search or a court case brought by police, and that, at the hearing before the previous Tribunal, the applicant claimed he first heard he was named in the case after he received the advocate’s letter.[36]
[33] CB163-190
[34] CB157-161
[35] CB159-159, [3]; CB200, [53]
[36] CB159, [3]
The purported court order is as follows:[37]
Copy of Award in
CMP No.712/2011Date: 28/3/2011
[37] CB187-189
This CMP having been finally heard on 28.3.2010 and the JFMC-1 on the same day passed the following:
ORDER
Advanced to this date as per order in IA 428/2011. The petition argued that a case has been registered by the Thumba Police as CC 52/91 followed by several cases CC 182/2002. CC 461/2006 trialed in various courts at Thiruvananthapuram. They again stated that police purposefully implicating innocent local peoples as accuseds namely [a number of names are listed, including the name of the applicant] . . . . Most of the above accuseds were lost their jobs, residence and their belongings due to the continual attack of the police force. They escaped by giving up all their belongings and hence their relatives filed this CMP for the issuance of the details of the pending cases.
State represented by APP strongly opposed the arguments raised by the petitioner. He pointed that the case registered by Thumba Police in 1991. It was a mob attack in which a civilian named [name of applicant’s brother] and a police officer were died cases and counter cases were registered. Local peoples were arrested and certain cases have been still pending. The accused have the right to defend by conducting the cases. Instead, they are all abscond and the court declared Long Pending Warrants. Here Govt. included and a police officer killed. Due to various security reasons, we are not allowed to entertain the above CMP and hence strongly opposed.
In the result, the above CMP is dismissed. No costs.
The applicant, in his counsel’s written submissions, may have misunderstood what the purported order states.[38] Counsel says that, at face value, the purported court order is evidence that the case the applicant claimed had been brought against the police in relation to the 1991 murder of his older brother had been dismissed on 28 March 2011. The purported court order does not say that. It describes the hearing of a petition “for the issuance of the details of the pending cases” in which the applicant and others are named as the accused, and the rejection of that petition.
[38] Applicant’s written submissions, [29]
The applicant says it is unclear what relevance the Tribunal attached to the purported court order. Whatever its relevance, the applicant submits the purported court order was a piece of evidence that “objectively undermined the applicant’s case”.[39] The applicant does not, however, articulate how the purported court order undermined the applicant’s case.
[39] Applicant’s written submissions, [29]
In my opinion, the purported court order is not “information that the Tribunal” considered would be “the reason, or a part of the reason, for affirming the decision under review”. The Tribunal did not accept the purported court order as evidence of that which it purports to be. The purported court order, like the applicant’s evidence of the 1996 and 2010 attacks, was evidence that, had the Tribunal accepted it, would have been a reason for the Tribunal not affirming the delegate’s decision. That is so because, on its face, the purported court order stated that there were pending outstanding cases in which the applicant was named an accused. That is what the applicant had urged the Tribunal to accept in support of his application for protection.
Whether the purported court order is information “the applicant gave for the purpose of the application for review”
After the hearing, the parties provided extensive written submissions on a discrete point; and that is whether the purported court order was information that “the applicant gave for the purpose of the application for review” within the meaning of s.424A(3)(b). Given that I have found the court order was not information that would in any event fall within s.424A(1), it is unnecessary to determine that question. However, out of deference to the submissions that have been prepared, I will consider that question. My consideration will assume that the purported court order is information the Tribunal considered would be “the reason, or a part of the reason, for affirming the decision under review”.
The applicant submits the purported court order does not fall within s.424A(3)(b) of the Act for three reasons. First, s.424A(3)(b) only applies to information given for the purpose of the current application for review. Second, the applicant did not “give” the purported court order for the application for review because the information was provided by the applicant in response to a request from the first Tribunal and the applicant cannot, therefore be said to have adopted its contents.
In support of his first submission, the applicant relies on the Full Federal Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry.[40] That case considered s.424A(3)(b) in a form that differs from s.424A(3)(b) as it currently stands. In the form in which the Full Court considered it, s.424A(3)(b) provided that s.424A did not apply to information “that the applicant gave for the purpose of the application”. The Full Court construed that paragraph to mean it did not apply to information that had been provided to a delegate of the Minister.
[40] (2001) 110 FCR 27
As submitted by the Minister, whether or not s.424A(3)(b) applies to information provided to a previously constituted Tribunal is governed by the decision of Besanko J in SXSB v Minister for Immigration and Citizenship where his Honour said:[41]
The obligation in s 424A(1) does not apply to information that the appellant gave for the purpose of the application for review (s 424A(3)(b)). It is clear from the authorities that the obligation does apply to information the appellant gave prior to the application for review. In my opinion, the exception applies to information the appellant gave not only to the second Tribunal hearing but also to the first Tribunal hearing. Such information was information that the appellant gave for the purposes of his application for review to the Tribunal.
[41] [2007] FCA 319 at [24]
In support of his second submission, the applicant referred to a number of authorities. The effect of these authorities was summarised by Young J in NBKT v Minister for Immigration and Multicultural Affairs in the following passage:[42]
These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence-in-chief rather than in answer to questions posed by the tribunal.
[42] [2006] FCAFC 195 at [59]
The applicant submits, on the basis of the authorities he identifies, that, to fall within s.424A(3)(b) of the Act, the applicant must not only provide the information, but must also be aware of the significance of the information.
The authorities do not support any such principle. At most, the authorities require that the applicant supplied the information in circumstances in which it may reasonably be concluded that the applicant intended that the Tribunal rely on it when considering the applicant’s claim. In my opinion, the applicant provided the purported court order with the intention that the first Tribunal rely on it when considering his claim. As early as 1 February 2011, the applicant informed the delegate that he was “still awaiting court documents from India and I strongly believe that still my brother case is still pending in the court of law”.[43] And the purported court order, stating as it did that various proceedings were pending as at March 2011, was provided by the applicant to support his contention that the case in relation to his brother was pending.
[43] CB35
In my opinion, therefore, if the purported court order was “information” within the meaning of s.424A(1) of the Act, it was information that fell within s.424A(3)(b).
Conclusion on ground 1
For these reasons, the applicant does not succeed on ground 1 of his application for review.
Ground 2: Irrationality
The applicant claims the Tribunal’s decision was irrationality in two ways.
Inconsistent reasoning
The first is what the applicant submits is an internal inconsistency in the Tribunal’s reasoning. The inconsistency is said to arise as follows:[44]
There is the conflict between, on the one hand, the fact that the Tribunal (at [26]) rejected the applicant’s claim that police had in 1996 and 2010 detained, assaulted and threatened to charge him with something, reasoning that the police would have had no motivation to do so if, as the [applicant’s advocate’s] letter suggested, the applicant had already been charged in 1991 in relation to the death of his brother and a policeman and, on the other hand, the fact that the Tribunal (at [27] and [29]) did not accept that the [applicant’s advocate’s] letter was genuine and did not accept that police would have charged the applicant in 1991 in relation to the death of his brother and a policeman because it did not believe the police would charge the applicant and then do nothing to pursue the case for 20 years. If the Tribunal did not believe the applicant had been charged in 1991, it had no reason to think that the police had no motivation to detain, assault and threaten the applicant in 1996 and 2010; and, conversely, if the Tribunal thought that the police would have no motivation to detain, assault and threaten the applicant if he had already been charged in 1991 (without reference to whether or not the charge had been pursued), then it had no reason to expect that if the police had charged the applicant in 1991 they would have done anything to pursue the case, or the applicant, in the 20 years thereafter.
[44] Applicant’s written submissions, [33]
I do not accept this submission. It is predicated on the proposition that a fact-finder, acting logically, cannot rely on one item of testimony (T1) as a basis for not accepting another item of testimony (T2) unless the fact-finder accepts T1 to be true; and, conversely, a rational fact-finder cannot rely on T2 as a basis for not accepting T1 unless the fact-finder accepts T2 to be true. These propositions are incorrect.
One important factor in assessing the credibility of testimony is the extent to which the testimony contains assertions that are consistent with or mutually supportive of each other. Testimony that contains inconsistent assertions, or assertions that undermine each other, therefore, is a matter on which a rational fact-finder may rely for concluding that the testimony is not worthy of credit. The rational fact-finder is entitled to so conclude without committing himself or herself to the truth or otherwise of the inconsistent or undermining assertions.
The destructive effect of inconsistent assertions on the credibility of testimony, and the basis on which such inconsistencies tend to destroy the credibility of testimony have been long recognised. For example, writing in around 1726, Chief Baron Gilbert said:[45]
Another thing that derogates from the credit of a witness is, if upon oath he affirmed directly contrary to what he asserts; . . . and this takes from the witness all credibility, inasmuch as contraries cannot be true. . . . Now that which sets aside his credit and overthrows his testimony is . . . the repugnancy of his evidence; . . . if what he says be contradictory, that removes him from all credit; for things totally opposite cannot receive belief from the attestation of any man.
[45] Quoted in J H Wigmore Evidence in Trials at Common Law Volume 3A, Chadbourne revised edition (1970) p.995. The passage quoted by Wigmore is from Chief Baron Gilbert’s The Law of Evidence.
In more recent times the basis on which inconsistent statements affect the credibility of testimony has been described as follows:[46]
The attack by prior inconsistent statement is not based on the theory that the present testimony is false and the former statement true. Rather, the theory is that talking one way on the stand and another way previously is blowing hot and cold, raising a doubt as to the truthfulness of both statements.
[46] McCormick on Evidence, 7th ed (2013) page 209.
It was not necessary, therefore, for the Tribunal to accept as true the element of the applicant’s claim that he had been charged in 1991 in order not to accept as true the element of the applicant’s claim that he was attacked in 1996 and 2010. It was sufficient that the applicant asserted these elements. It was open to the Tribunal to conclude, as it did, that the applicant’s assertion that the applicant was charged in 1991 was inconsistent or undermined his assertion that the applicant was attacked in 1996 and 2010; and it was equally open to the Tribunal to conclude that the applicant’s assertion that he was attacked in 1996 and 2010 was inconsistent with or undermined the assertion that the applicant was charged in 1991.
Lack of evidentiary support for conclusion on state protection
The second way in which the applicant claims the Tribunal’s decision was illogical relates to the Tribunal’s conclusion that effective protection by the state of Kerala was available to deal with the applicant’s claimed fear of harm. The irrationality is said to consist of an absence of a logical link between the Tribunal’s conclusion in that regard, and the material on which the Tribunal purportedly relied for that conclusion, namely, a report by the Department of Foreign Affairs and Trade titled “DFAT Country Information Report No. 303/98, CX31297” (DFAT report).
I first need to set out the conclusion the applicant claims the Tribunal arrived at on the basis of illogical reasoning.[47]
[The applicant] said that if he was working for a political party and he was not being protected by the country he should get refugee status. However, as I put to him, I consider that, if he were facing these sorts of problems, he would be protected by the Government of Kerala. As I put to him, the Australian Department of Foreign Affairs and Trade has said that Kerala is a law abiding state where legal recourse is available to those who felt threatened and persecuted. . . . As I put to him, the evidence available to me suggests that the Government of Kerala meets the standards required to provide him with protection from these sorts of problems. . . . I do not accept on the evidence before me that there is a failure by the Government of Kerala to abide by its obligations with regard to the level of protection which it provides for those fearing Convention-related harm.
[47] CB264-5, [38]
What the Australian Department of Foreign Affairs and Trade had said about Kerala is contained in the DFAT report identified earlier in the Tribunal’s reasons.[48] That report deals with the treatment of members of the Communist Marxist Party (which is different from the CPIM). It records an answer given by the Department on 24 July 1998 to questions asked in relation to an applicant who was a former member of CPIM who claimed he had complained to police about various abuses, but those complaints had not been investigated by police. The DFAT report contained the following statements:[49]
[48] CB263, [32; ]
[49] The DFAT report is annexed to an affidavit made by the applicant on 25 November 2013
On the whole, Kerala authorities act to bring legal remedy to perpetrators of violent crime in that state. We are unable to comment upon whether the authorities acted against the perpetrators of the crimes . . . . There are cases in India of those committing crimes being protected by those with political influence. Whether that happened in the case described we cannot say.
. . . .
As a general comment we would advise that Kerala is a law abiding state where legal recourse is available to those who feel threatened or persecuted. There are occasional clashes between different communist factions, but we would not consider them to be of a scale and nature that would prevent citizens of that state residing there under protection of the law.
The applicant makes three submissions. First, the DFAT report is “manifestly out of date”, referring to the state of affairs in Kerala as at 1998.[50] Second, the DFAT report was specifically about a different applicant, who was a member of a different political party and in very different circumstances. Third, the information contained in the DFAT report was a “general statement” about Kerala, whereas the applicant made a “specific claim” concerning his fear of harm; and the Tribunal acted illogically by taking “a general statement in the DFAT report as disproving the specific claim made by the applicant, without reconciling the two”.[51]
[50] Applicant’s written submissions, [37]
[51] Applicant’s written submissions, [37]
In my opinion, the Tribunal did not act irrationally by relying on the DFAT report in the manner it did. First, in the absence before the Tribunal of any more recent evidence about the matters dealt with in the DFAT report, or at least, evidence that contradicted or tended to undermine the DFAT report, a rational decision maker in the position of the Tribunal could rationally have considered the opinion that is expressed in that report concerning Kerala in 1998 to be probative of the current and reasonably foreseeable future state of affairs in Kerala. Second, the Tribunal noted that the Congress Party was in power in the state of Kerala.[52] That was a circumstance which enhanced the probative value of the DFAT report because, unlike the applicant referred to in the DFAT report, the political party in power in the state of Kerala[53] is the party with which the applicant claimed an affiliation.
[52] The applicant, in his written submissions ([37, fn 24]), notes that the media reports cited by the Tribunal state that the Congress Party was in power as part of a coalition.
[53] Or, according to the applicant, in power as part of a coalition
In any event, it was not the task of the Tribunal to investigate for itself whether or not the Kerala state government would protect the applicant. The task of the Tribunal was to determine, on the evidence that was before it, whether the Kerala state government would be in a position to protect the applicant from the harm he claimed he feared. The Tribunal was so satisfied. Apart from the generalised assertion of the applicant (which I will consider below), it is not suggested there was any evidence on the basis of which the Tribunal could have found that the state government of Kerala would not afford protection to the applicant against the harm he feared.
As to the applicant’s second submission, I do not accept that the fact the DFAT report was written in relation to a case that was different from that of the applicant rendered it irrational for the Tribunal to rely on it. Although the DFAT report did report on a specific case, what it had to say about that specific case was based on a broad statement that “Kerala is a law abiding state where legal recourse is available to those who feel threatened or persecuted”.
The applicant’s third submission that the Tribunal failed to reconcile the applicant’s “specific” claim and the general statement contained in the DFAT report assumes that the applicant’s claims were true. But the Tribunal did not accept those claims. The Tribunal did not accept that the applicant “is telling the truth about the problems he claims to have had in India”.[54] And the reasons it did not accept the applicant’s claims had nothing to do with the DFAT report. There was nothing to reconcile.
[54] CB264, [37]
Even if the Tribunal acted irrationally in relying on the DFAT report, would that necessarily mean that the Tribunal’s decision should be set aside? To answer this question requires consideration of the circumstances in which the Court may decline to grant relief where the Tribunal has made a jurisdictional error.
I reviewed some of the authorities relevant to this question in Montero v Minister for Immigration & Anor.[55] I there referred to the reasons for judgment of Rares J in Tran v Minister for Immigration & Multicultural Affairs,[56] and noted that the end result of his Honour’s analysis was that if there are two or more grounds on which the Tribunal upheld the decision of the delegate, and one, but not all of those grounds was infected with jurisdictional error, relief will be withheld if any one of the grounds on which the Tribunal affirmed the delegate’s decision was not affected by jurisdictional error, and the Tribunal’s consideration of that ground was undertaken entirely separately from the consideration of the ground infected with jurisdictional error.[57]
[55] [2014] FCCA 946 at [42]-[43]
[56] [2006] FCA 1229
[57] [2006] FCA 1229 at [79]
Counsel for the applicant submits that the Tribunal’s consideration of whether the applicant would be protected by the state of Kerala from the harm he claimed he feared could not be divorced from the Tribunal’s consideration of whether the applicant had a well-founded fear of persecution. Counsel relied on the Full Federal Court decision of VAAD v Minister for Immigration & Multicultural & Indigenous Affairs.[58] In particular, counsel relies on that portion of the Full Court’s reasons in which it concluded that where, as a result of a jurisdictional error the Tribunal did not consider a piece of evidence relevant to the credibility of the applicant, it was not possible to determine whether without the error the Tribunal would have made the same credibility finding, the decision would be set aside. Counsel relied on the following passage:[59]
[A]n assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account . . . As Gleeson CJ commented in Aala at [4]:
‘ . . . Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive . . . ’
[58] [2005] FCAFC 117
[59] [2005] FCAFC 117 at [79]
To the extent VAAD is authority for any broad proposition, it is that a jurisdictional error will result in the setting aside of a decision if it cannot be said that even without the jurisdictional error, the Tribunal would have made the same decision. That principle in substance repeats the principle stated by Rares J in Tran which I have set out above.
In my opinion, the Tribunal’s consideration and rejection of the applicant’s claims that he suffered harm in India was sufficient by itself to result in the Tribunal’s affirming the delegate’s decision; and the Tribunal undertook its consideration of that aspect of the applicant’s claim entirely separately from its consideration of whether the state of Kerala would be able to protect the applicant against the harm the applicant claimed he feared. For that reason, if the Tribunal committed a jurisdictional error by relying on the DFAT report, I would have withheld the granting of relief.
Conclusion
The second ground of review is not established.
Ground 3
The applicant claims that the Tribunal’s conclusion that the Kerala state government would protect the applicant from the fear he claimed he would suffer was affected by the same jurisdictional error the Tribunal was held to have made in SZOHH v Minister for Immigration & Anor.[60] The applicant submits that, as in SZOHH, the Tribunal in this case failed to undertake its jurisdictional task of considering how the state of Kerala would protect the applicant from the harm of which he claimed to have a well-founded fear of persecution.
[60] [2010] FMCA 501
In SZOHH, the Tribunal found that the applicant in that case had a well-founded fear of persecution in Kerala because of his political activities, and that he would face a real chance of persecution if the applicant were to relocate to another part of India. The Tribunal, nevertheless, concluded that the applicant could seek effective protection from the state. Driver FM (as his Honour then was) held the Tribunal made a jurisdictional error because the Tribunal “did not consider in any meaningful way whether effective protection would be available from the Indian state elsewhere”.[61]
[61] [2010] FMCA 501 at [34]
In my opinion, the facts of the case before me are materially distinguishable from those in SZOHH. Unlike SZOHH, the Tribunal in the case before me did not accept the applicant had a well-founded fear of persecution; and it was not satisfied because it did not accept the applicant “is telling the truth about the problems he claims to have had in India”.[62] There was, therefore, no need for the Tribunal to consider in any meaningful or other way whether the applicant would be able to obtain protection from the state of Kerala. Not only was there no need to do so; it was not possible to do so. The Tribunal could not in any meaningful way assess the manner in which authorities in the state of Kerala would protect the applicant from the harms the Tribunal did not accept occurred to the applicant or would occur if the applicant were returned to India.
[62] CB264, [37]
In any event, if the Tribunal made a jurisdictional error in relation to its conclusion that the applicant would be protected by the state of Kerala from the harm the applicant claimed he feared, its consideration of that issue is separate from the consideration and determination of the applicant’s claim that he had a well-founded fear of persecution if he returned to India and, for that reason, I would withhold the granting of relief.
Ground 3, therefore, is not established.
Conclusion and disposition
The applicant’s challenges to the decision of the Tribunal have not succeeded. I propose, therefore, to order that the application be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 26 August 2014
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