FEDERAL COURT OF AUSTRALIA

SZDAP v Minister for Immigration & Multicultural Affairs [2006] FCA 1598

MIGRATION – appeal from Federal Magistrate’s review of a decision of the Refugee Review Tribunal – procedural fairness – whether principles of procedural fairness require Tribunal to put its views to the appellant on the appellant’s document – rejection of documents not based on credibility of appellant

SZDAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1373 OF 2006

MIDDLETON J

15 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal from the decision of Federal Magistrate Barnes delivered 28 June 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 13 May 2002 and handed down on 5 June 2002.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 24 July 1999 to refuse to grant a protection visa to the appellant.

Procedural Background and Appellant's Claims

2                     The appellant is a citizen of India.  He claims to be a Sikh whose family was active in the early 1980’s for an independent Sikh state.  The appellant claims that his father was a member of the Khalistan freedom movement and Khalistan Commando Force (KCF) and that the appellant himself was a member of the Sikh Students Federation and KCF.  His claims involved his uncle and father being killed by the police (in 1986 and 1994 respectively), that the police harassed and threatened his family, and that the appellant was arrested in 1996.

The Decision of the Tribunal

3                     The Tribunal found the appellant was not credible in respect of key aspects of his claims.  The Tribunal stated that the appellant’s evidence was internally inconsistent and unconvincing, and found most implausible the details of persecution by the police.  It found his evidence regarding adverse interest by the authorities was implausible as country information indicated that the Khalistan movement was no longer active in Punjab and that Sikhs did not constitute a persecuted group and members of groups that were targeted were now in general terms safe.  As a witness, the Tribunal specifically stated of the appellant:

The Applicant as a witness was not impressive.  He gave inconsistent and unconvincing evidence…on key aspects of his claims.  The Tribunal considered the Applicant readily resorted without justification to blaming a poor memory, trauma, the poor English of a friend who filled out his applications, or other reasons, to explain inconsistencies in his evidence or other unsatisfactory aspects in the presentation of his claims.  He showed no conviction in the truth of what he told the Tribunal.  Much of his evidence was implausible and unconvincing.

4                     The Tribunal found implausible the document submitted by the appellant purporting to be a warrant of arrest.  The Tribunal noted that the warrant was issued two years after the appellant’s departure from India to Australia and concerned matters in 1994, that there was no prior mention of the outstanding warrant of arrest to the Tribunal before submission of the document and that the appellant was able to depart India without difficulties.  The Tribunal also did not place weight on other documents and correspondence submitted by the appellant due to inconsistencies between those documents and the oral evidence given by the appellant at the hearing.

5                     The Tribunal found that neither the appellant nor his family were actively involved in the Sikh Khalistan movement or were at risk of persecution for their actual or perceived political role.  The Tribunal found the appellant was a completely unreliable witness to the truth about all the core aspects of his claims and was not satisfied the appellant had a well-founded fear of persecution for a Convention reason.

The Federal Magistrate's Decision

6                     On 17 March 2004 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  That application was dismissed by Barnes FM pursuant to r 13.03A(c) of the Federal Magistrate Court Rules 2001 due to the appellant’s non-appearance at the hearing on 4 April 2006.  Those orders of 4 April 2006 were set aside by Barnes FM on 26 April 2006 pursuant to application made on 5 April 2006 and the matter was adjourned for further hearing on 22 May 2006.

7                     By amended application filed on 29 September 2004, the appellant effectively raised two grounds of review, namely that the Tribunal failed to consider the appellant’s claim by reference to his association with the Khalistan revolution or movement in Punjab, and that the Tribunal’s decision overall was not based upon reasoning which was rational or logical.

8                     In relation to the first ground, her Honour held at [14] of her reasons for judgment that the Tribunal did consider the appellant’s claim that he was associated with the Khalistan revolution or movement in Punjab and rejected those claims due to its findings in relation to the appellant’s credibility. 

9                     In relation to the second ground, her Honour held at [15] of her reasons for judgment that the Tribunal’s reasons were comprehensive, addressed all of the aspects of the appellant’s claims and set out detailed reasons for its findings.  Her Honour found that no lack of logic or rationality was apparent, let alone a lack of logic or rationality such as to evidence a jurisdictional error. 

10                  Her Honour went on to consider further grounds of contention raised by counsel for the first respondent as warranting consideration but in relation to which it was submitted no jurisdictional error was apparent.  Her Honour first considered in detail whether there was any lack of procedural fairness in relation to the Tribunal’s failure to put to the appellant its views about the appellant’s documents.  Her Honour, in my view correctly, proceeded on the basis that the common law principles applied: see WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [36] to [40].  Her Honour considered the precise circumstances in this case and held at [31] of her reasons:

In the present case the Tribunal gave no weight to particular aspects of each of the documents put before it by the applicant after the hearing because of inconsistencies between what was contended for in the documents and the applicant’s oral evidence,  The documents did not simply substantiate claims of the applicant that had already been made.  On the contrary they were in some respect inconsistent with his claims.  As the Tribunal observed, in the applicant’s oral evidence he stated that his father was dead and that he had been killed in 1994 which was two years before the applicant claimed to have been detained (in 1996 for a few hours).  Yet the documents included and referred to an affidavit sworn in 2001, purportedly by the applicant’s father and one claimed the applicant and his father were arrested and detained together.  In one respect the documents made fresh claims.  The applicant had told the Tribunal that he knew nothing about a warrant of arrest being issued.  The copy of the document described as a warrant of arrest was dated 19 April 2001, which was after the second Tribunal hearing, made a fresh claim that a warrant of arrest had been issued (in addition to the earlier oral claims of the applicant that the police were looking for him and if they found him he would be in trouble).

11                  Her Honour concluded that, in the circumstances, the Tribunal was not under any obligation by reason of procedural fairness to put to the appellant its views on the appellant’s documents.  Her Honour held at [32] of her reasons:

In circumstances where the claims made in documents provided to the Tribunal by the applicant were inconsistent with the other evidence of the applicant in major respects and where such serious inconsistencies were the basis for the Tribunal giving no weight to the documentary evidence, these matters did not have to be put to the applicant as part of the Tribunal’s obligations of procedural fairness.  The weight to be given to particular items of evidence is a matter for the Tribunal and the Tribunal was not obliged to put its thought processes or reasoning to the applicant in relation to such inconsistencies.  It cannot be said that the Tribunal’s conclusions in relation to the weight to be given to documents making such inconsistent claims would not “obviously be open on the known material” (See Commissioner for Australian Capital Territory v Alphaone (1994) FCR 573 at 591 – 592).  These findings were, in fact, sufficient to address the documents provided by the applicant.  In this sense, the Tribunal’s view that the documents were fabricated to assist the applicant’s claims was not the basis for its decision.

12                  Her Honour acknowledged that the Tribunal made adverse credibility findings against the appellant, however noted that these findings were made independently of the documents he later provided.  Therefore, her Honour reasoned, this was not a case in which the authenticity (or lack thereof) of the documents was a critical step in the reasoning of the Tribunal in relation to the claims of the appellant.

13                  Insofar as the documents made fresh claims, the Tribunal had rejected this material as fabricated to assist the appellant’s case.  In this regard, her Honour noted that the basis of this finding of fabrication was the Tribunal’s adverse credibility finding about the appellant and the inconsistencies between the material and the appellant’s oral claims as well as country information.  Her Honour found that such finding was open to it on the evidence before it.  Her Honour held at [34] – [35] that:

…The Tribunal finding was not based simply on the appearance of the documents.  Nor was it based on independent information about document fraud which it may have been necessary to put to the applicant…[T]here was evidence to support the Tribunal’s finding in this respect.  It was not a “bare assertion” of fabrication…[A]s the Tribunal had made an assessment that the evidence was not to be relied on, it was a “logical conclusion” that the documents were fabricated. {citations omitted}

In all the circumstances I am not satisfied that the Tribunal denied the applicant procedural fairness by failing to put to him for comment its views on the documents he submitted.

14                  Accordingly, her Honour was not satisfied that the Tribunal had denied the appellant procedural fairness.

15                  Her Honour then considered whether there had been a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’) because the Tribunal used the inconsistencies between the appellant’s oral claims and claims in the appellant’s statutory declaration attached to his protection visa application to find that the appellant was not an impressive witness.  Her Honour found that these inconsistencies were information for the purposes of s 424A(1) and that these inconsistencies had formed part of the reason for the Tribunal rejecting the appellant’s credibility.  Nevertheless, her Honour found that since the appellant had given the information in his statutory declaration to the Tribunal, it fell within the exception provided in s 424A(3)(b).

16                  Her Honour noted that the appellant provided the following reasons in his review application to the Tribunal:

I am disagree with the department’s decision because I have really danger from Indian authorities and Police so I can’t go back to my home country if I go to my country I will be prosecuted there as I have stated in my declaration to the department but immigration rejected my case but I want the review of my case.

17                  Adopting the reasoning of Rares J in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 (‘SZGGT’) which concerned republication to the Tribunal of information given to the Department, her Honour found that a reasonable person observing what was in the review application would have understood the appellant to have been referring not simply to the fact of his fear but also the reasons for such fear as stated in his statutory declaration.  Accordingly, she found that the appellant had adopted or republished his statutory declaration for the purpose of his review application.

18                  As no jurisdictional error was established, the Federal Magistrate dismissed the application.

Grounds of Review

19                  By notice of appeal filed on 18 July 2006, the appellant relies on the following grounds:

1.         The Federal Magistrate failed to find the Tribunal did not consider all the evidence given by the appellant.

2.         The Federal Magistrate erred by ‘endorsing the Tribunal errors’; specifically that her Honour erred by failing to pronounce judgment in favour of the appellant despite finding that the Tribunal had erred with regard to the inconsistencies in evidence it had relied upon.

3.         The Federal Magistrate failed to find the Tribunal’s ‘implausibility of evidence to test’ was contrary to law because the Tribunal accepted that the appellant was arrested once by the police, and should have applied Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 where it is incumbent on a decision-maker to evaluate whether the appellant’s past experiences produced a well-founded fear of being persecuted.

20                  In my view, there is no evidence to support the first ground asserted by the appellant, that the Tribunal erred in failing to consider all of the evidence of the appellant.  The Federal Magistrate considered the appellant’s claims, as particularised by the appellant in his application for judicial review, and found that the Tribunal had considered but rejected the appellant’s claim.  The appellant’s disagreement with this conclusion does not establish any appealable error and accordingly this ground of appeal must fail.

21                  The second claim for review must also fail.  This claim and the particulars given by the appellant misstates her Federal Magistrate’s findings.  Her Honour did not find that the Tribunal had erred but in fact found that the Tribunal was not required to put the inconsistencies to the appellant due to the operation of s 424A(3)(b). 

22                  Further, I accept her Honour’s finding that the applicant had adopted or republished his original claims in his statutory declaration in the application for review.  Such a finding is consistent with the reasoning of Rares J in SZGGT.  It was open to her Honour to read the appellant’s application for review as incorporating the substantive claims made in the appellant’s statutory declaration which supported his application for a protection visa.

23                  The final ground asserted by the appellant was not raised before the Federal Magistrate and so ought not to be raised for the first time on appeal: see H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43.  The claim and particulars given by the appellant again misstates the Tribunal’s findings.  The Tribunal did not accept that the appellant had been arrested at all but instead found the appellant’s evidence in this regard to be implausible and manufactured.  These findings were open to the Tribunal on the evidence before it and no error is revealed.  Accordingly even if I were to allow this new ground, it would fail.  Therefore, I would not grant leave to the appellant to raise a new ground where the ground of appeal is hopeless and bound to fail.

Conclusion

24                  Accordingly, I find no error in her Honour’s decision and dismiss the appeal.

Associate:

Dated:         22 November 2006