FEDERAL COURT OF AUSTRALIA

SZBVE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1325

MIGRATION – refugees – review of protection visa decision – procedural fairness – reasons for decision, adequacy of – whether inconsistency in evidence ‘information’ – where inconsistencies not integral to decision

Migration Act 1958 (Cth), ss 424(1), 424A

Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162

Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 cited

SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 followed

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 followed

SZBVE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1111 OF 2005

MADGWICK J

14 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be joined as the second respondent.

2.                  The appeal be dismissed.

3.                  The appellant pay the costs of the first respondent, assessed in the sum of $3,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Driver on 17 June 2005.  The judgment dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was adverse to the appellant.  The appellant claimed to fear persecution for reasons of his religion. 

2                     The appellant is legally unrepresented and made no submissions at all on any relevant subject.

3                     It was accepted that the appellant was a Muslim from the Indian State of Tamil Nadu.  His claim was that his small-scale business interests included a farm; his farm workers were of the Dalit caste, a caste which ranks very low in the caste system recognised by Hindu Indians.  He claimed that he treated the workers better than they used to be treated by his non-Muslim neighbours and they consequently chose to convert to Islam.  Some workers on the adjoining property, owned by people of the Brahmin caste which is at, or close to, the top of the class system, also converted to Islam. 

4                     The appellant thereafter began to help anyone who wanted to convert to Islam.  He claimed to have received threats from Hindu activists and from a Member of Parliament belonging to the political Bharatiya Janata Party (‘the BJP’) which largely represents Hindu interests.  In November 2002, the government of Tamil Nadu State had passed a law banning forcible conversions of people to Islam.  There were demonstrations against this law in which the appellant claimed to have participated. The appellant was arrested, and during his detention was ‘humiliated and brutally assaulted’.  As a result of all this, he obtained a visa for Australia, having in 2001 obtained a passport, and came to Australia on 10 November 2002. 

5                     The Tribunal accepted that the appellant had complaints and threats after the conversion of his workers but was otherwise critical of his credibility.  The Tribunal did not accept that he had a high political profile, such as would cause him to be a target of attention from the BJP or its local Member of Parliament.  The Tribunal member said:

‘Having heard the [appellant] on the subject, I am unable to accept that anyone would remain interested in five conversions nearly three years after the event in a country with a very large Muslim population, in which conversions – on his evidence – were a frequent occurrence.  For this reason, I am unable to accept that he was arrested by the police for reasons associated with [those] conversions …’.

6                     The Tribunal member seems to have thought it likely that he was briefly detained for reasons associated with the demonstrations and for no other reason.  For reasons given, the Tribunal member went on to find that his claim to fear persecution was not consistent with certain ‘facts’.  The last of these was ‘the fact that the [appellant] contradicted himself both between his written applications and the oral hearing and during the hearing …’.  Counsel for the respondent referred to matters (on pages 118 and 119 of the Appeal Book), which are apparently the contradictions to which the Tribunal member was referring. 

7                     In the lower Court, the appellant advanced 13 grounds for review and, for reasons given, the learned Magistrate found no substance in them.  His Honour’s reasons appear to be unexceptionable, so far as they go.  As counsel for the first respondent points out, the notice of appeal seems simply to be critical of the Tribunal’s factual conclusions and standing alone, as counsel says, ‘there is no case to answer on appeal’.

8                     Counsel, however, has fairly and properly assisted the Court in relation to possible implications from SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 (‘SAAP’) and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (‘Al Shamry’).  Counsel says the Tribunal appears to have relied, in part, on inconsistencies between the appellant’s oral evidence to the Tribunal and his earlier written claims.  However, the Tribunal did not rely upon the truth of the earlier written claims but simply on the inconsistency between them and the later oral claims.

9                     In WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [23], the Full Court held that where the relevant ‘reason or part of the reason’ for the Tribunal’s decision within s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) is the identification of inconsistency between different pieces of evidence, that is not, of itself, ‘information’ for the purposes of s 424(1), which enables the Tribunal to ‘get any information that it considers relevant’ but then obliges the Tribunal to ‘have regard to that information in making the decision’.  The Full Court, in Win v Minister for Immigration & Multicultural Affairs (2001)105 FCR 212 at [20], considered that the term ‘information’ in s 424 was used in the same sense as in s 424(1) of the Act.

10                  In SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138, Lindgren J applied those views to a case in which an inconsistency was noted but the Tribunal had not relied upon the information in the earlier written material emanating from the putative refugee.  In those circumstances his Honour said that the information contained in the earlier documentation was not the reason or part of the reason for the Tribunal’s affirmation of the delegate’s decision.  The processes of reasoning engaged in by Lindgren J appear to me, with respect, to be correct or at least not plainly wrong, and I propose to follow his Honour’s approach here.  It follows that nothing in SAAP or in Al Shamry materially aids the appellant. 

11                  Counsel for the Minister, in any case, advanced an alternative argument, which was that, in this case, the fact of the inconsistencies was not sufficiently integral to the decision to make that fact part of the reason for the Tribunal’s decision.  Counsel referred to VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [9], [31], [33] and [41] – [43]. 

12                  In that case, Finn and Stone JJ held at [33], in effect, that there may be some opinions expressed in reasons for a decision which, as a matter of interpretation, are inessential to the conclusion, so that they are not sufficiently ‘integral’ to the decision as to warrant being termed ‘part of the reason’ for the decision.  At [41] their Honours indicated that the judgment of what is sufficiently integral to the reasoning process might involve a normative requirement, namely, would the material in question ‘require as a matter of fairness that the appellant be told that information ... and why it was relevant to the review’.  With respect, the principles and distinctions laid down by their Honours command assent, but, as their Honours noted at [33], the judgmental process:

‘…may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.’

13                  It is by no means clear to me that if the contradictions found by the Tribunal were (contrary to my view) ‘information’, they were not sufficiently integral to the Tribunal Member’s reasoning as to have warranted them and their relevance being communicated to the appellant in what, on that supposition, would have been the manner required by s 424A.

14                  In view of my earlier conclusion, however, the result is that the appeal must fail.  The appeal will be dismissed and the appellant ordered to pay the first respondent’s costs, assessed in the sum of $3,500.  I also join the Refugee Review Tribunal as a second respondent.

Associate:

Dated:  26 September 2005