FEDERAL COURT OF AUSTRALIA

SZNDL v Minister for Immigration and Citizenship [2009] FCA 568

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152

SZLOG v Minister for Immigration and Citizenship [2008] FCA 1186

SZNDL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD264 of 2009

REEVES J

29 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 16 March 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 19 December 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

factual summary

2                     The appellant is a citizen of India who arrived in Australia on 2 June 2008.  On 2 July 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused that application on 22 September 2008.  On 15 October 2008, the appellant applied to the Tribunal for a review of that decision.

3                     In his visa application, the appellant claimed to fear persecution in India on account of his political opinion.  The appellant claimed he was a member of the Communist Party of India (Maosits) (CPI(M)) and was a district secretary of the Radical Youth League (RYL) of the CPI(M).  In later statements to the delegate and the Tribunal, he claimed he was arrested, detained and charged with a number of offences in 2005 and in 2007.  He also claimed his father was a CPI(M) member and activist and he had been arrested, was missing, and was presumed dead.

the tribunal’s decision

4                     The Tribunal was not satisfied that the appellant was the person “Karthi” identified as being arrested in 2007 in a newspaper article the appellant had produced in support of this claim.  It noted that the appellant’s claim was inconsistent with certain details contained in the article, particularly the age, place of arrest and the father’s name of the suspect. Moreover, the appellant was unable to identify a photograph of “Karthi” obtained by the Tribunal, despite claiming to be this person.  Based upon this finding, and since the appellant had not produced any other corroborating evidence in support of his claims, the Tribunal did not accept the remainder of the appellant’s claims, including that he had been a member of the CPI(M), or the RYL, or that he had been charged and arrested as he claimed.  As a consequence, the Tribunal was not satisfied that the appellant held a well-founded fear of Convention-related persecution in India.

the federal magistrate’s decision

5                     In his original application to the Federal Magistrates Court dated 12 January 2009, the appellant contended that:

1.                  The Tribunal failed to consider evidence provided by the appellant.

2.                  The Tribunal made an adverse credibility finding that was not open to it and was not put to him, such that it failed to afford him procedural fairness.

3.                  The Tribunal erred in failing to find that the appellant satisfied the Convention definition of “refugee”.

4.                  The Tribunal erred by failing to seek other independent information.

6                     On 2 March 2009, the appellant filed an amended application which contained one ground, as follows:

1.                  The Tribunal failed to comply with s 424 of the Migration Act 1958 (Cth) (‘the Act’).

Finally, at the hearing before the Federal Magistrate, the appellant raised a further ground, as follows:

The Tribunal denied the appellant a reasonable opportunity to obtain corroborative evidence.

7                     In relation to the alleged breach of s 424, ie the sole ground raised in the amended application, the Federal Magistrate noted that this ground was not pressed by the appellant at the hearing. Nevertheless, his Honour considered and rejected this ground on the basis that the procedure in s 424 did not apply to questions asked by the Tribunal during the hearing.

8                     In relation to the ground raised at the hearing ie the alleged failure of the Tribunal to allow the appellant a reasonable opportunity to obtain corroborative evidence, his Honour found that the appellant had some three months between the time of the delegate’s decision and the Tribunal’s decision to provide any additional material.  Furthermore, his Honour noted the appellant had been notified of this right at the time of making his application to the Tribunal on 15 October 2008.  Finally, his Honour noted that the Tribunal also asked the appellant about further materials at the time of the hearing, but the appellant failed to provide a satisfactory response.  In these circumstances, his Honour concluded that the appellant had been given a reasonable opportunity to put forward any further materials in support of his claims.

9                     In relation to ground one of the original application ie the alleged failure of the Tribunal to consider evidence provided by the appellant, his Honour found that the Tribunal had extensively referred to the evidence provided by the appellant in its decision record.  Further, he found there was nothing to suggest that it had brought a closed mind to the appellant’s claims. Finally, he found the choice of country information used by the Tribunal was a matter for its own discretion.

10                  His Honour also rejected grounds two to four of the original application, finding that the Tribunal afforded the appellant an opportunity to expand on those aspects of his claims about which the Tribunal had concerns. Further, his Honour found that ground three was seeking impermissible merits review and that there was no obligation on the part of the Tribunal to conduct independent inquiries in relation to the appellant’s claims.

11                  The Federal Magistrate therefore dismissed the appellant’s application for judicial review.

the present appeal

12                  On 31 March 2009 the appellant filed a notice of appeal in this Court  which alleged that:

1.         The Honourable FM Nicholls ought to have found that the Tribunal member         made the decision based on the country information, which are dominated    and censored by the government. My personal circumstances and claims have been ignored while considering my review application by RRT.

2.         The Federal Magistrates Court erred in not finding the lack of procedural             fairness in the proceeding of RRT, in that the Tribunal did not give the   applicant a reasonable opportunity to respond the matter.

13                  At the hearing of the appeal before me, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Godwin appeared for the first respondent.  Both parties had filed a written outline of submissions.

14                  In his written and oral submissions, the appellant repeated his allegation that the Tribunal had not properly considered his claims.  In addition, the appellant reiterated in his written submissions, many of the allegations he made in the original application to the Federal Magistrates Court: see [5] above. 

15                  In his written submissions, the Minister submitted that the first ground of appeal relating to the Tribunal’s assessment of independent country information should be rejected because the Tribunal had actually decided it was not necessary for it to consider the independent country information that had been considered by the delegate.  As to the second ground of appeal alleging a failure to afford procedural fairness, the Minister submitted that the appellant had failed to provide any materials to support this ground beyond those contained in the appeal book and the Tribunal’s decision record showed that it had raised its concerns with the appellant about the critical aspects of his claims, including:

15.1     That it was difficult to believe that a person arrested on terrorism charges would be        released unless he had been acquitted;

15.2          That it was difficult to believe that the appellant could have obtained a passport on 22 July 2007 if, at that time, he was in custody as a suspected terrorist.

16                  In his oral submissions on behalf of the Minister, Mr Godwin also pointed to those parts of the Tribunal’s decision record where it raised its concerns with the appellant about him being the same person as the person “Karthi” referred to in the newspaper article produced by him, and about the proposition that a person on terrorism charges could be issued with a passport in his own name and be able to use that passport to leave the country.

consideration

17                  The appellant’s first ground of appeal alleges that the Federal Magistrate was in error in not finding that the Tribunal’s decision was based on country information “which are dominated and censored by the Government” (sic).  There are two obvious responses to this ground.  The first is that raised in the Minister’s written submissions: that it is clear from the Tribunal’s decision record that it found it was unnecessary to consider any country information and it did not do so.  The second is that even if the Tribunal had relied upon country information, the choice and assessment of the weight to be given to country information are matters for the Tribunal, and this Court (or, for that matter, the Federal Magistrates Court) cannot substitute its own view of that material, even if had a different view: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]. 

18                  Whilst the wording of the second ground of appeal is somewhat obscure, I take it to be an allegation that the Tribunal had failed to raise with the appellant the concerns it had with his claims, where those concerns later formed the basis of its decision to affirm the delegate’s decision.  Clearly, the Tribunal has an obligation to do this: see, for example, SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152 at [35]-[43].  The Minister appears to agree with this interpretation of the second ground of appeal, because in his oral submissions, Mr Godwin pointed out that this was the only real question raised by the notice of appeal.

19                  In relation to this ground, Mr Godwin submitted that the Tribunal appears to have first proceeded to assess the appellant’s claim that he was the same person as the person “Karthi” described in the newspaper article, produced by him to the Tribunal.  This newspaper article described the arrest of “Karthi” and two others in July 2007 and the appellant claimed that it provided corroborating evidence of his arrest in 2007 ie on the basis that he was in fact “Karthi”.  On that aspect, the Tribunal concluded that the appellant was not the “Karthi” referred to in the newspaper article, because of various inconsistencies between the information given by the appellant and the information contained in the newspaper article, including age differences, differences in the place of arrest and differences in their father’s names.  The Tribunal also relied on the fact that the appellant was unable to identify a photograph of the “Karthi” shown in the newspaper article, from a group of 14 photographs provided to him. 

20                  Having reached this conclusion, and noting there was no corroborating evidence to support his other claims, Mr Godwin submitted that the Tribunal then proceeded to reject those claims, including the claims to be a member of the CPI(M) and the RYL, or that he had been arrested, or that he was of adverse interest to the police in India.  This all led to the Tribunal ultimately concluding that there was no real chance the appellant would face persecution for a Convention reason in India, were he to return there. I agree with Mr Godwin that this appears to be the approach the Tribunal took.

21                  If one traces through this approach from the beginning, I consider it is clear, from the Tribunal’s decision record that it put to the appellant all of the concerns it had about his claims that underlined this approach.  In particular, it is clear from the Tribunal’s decision record that it expressly raised with the appellant its concerns about the “Karthi” newspaper article in relation to the age differences, differences in the place of arrest and differences in the father’s names, mentioned above.  It also raised with the appellant its concerns about his inability to identify a photograph of “Karthi” from the group of 14 photographs provided to him.  Whilst the Tribunal did not expressly put to the appellant its ultimate conclusion, based upon these inconsistencies, that it considered he was not a credible witness, it is clear from the Tribunal’s decision record that it conveyed to the appellant its view that his credibility was in issue in relation to all his claims.  This is supported by the fact that the Tribunal’s decision record shows that the Tribunal also raised other concerns it had with the appellant’s claims, including his claims that he was released on bail when he had been arrested on terrorism charges, that he was able to apply for a passport when, at another point, he claimed he was in gaol at that time, and about him being able to obtain a passport and leave India when he claimed to be of adverse interest to the police there.  Finally, I consider it is also clear from the Tribunal’s decision record that it expressly put to the appellant its concerns that he was not able to produce any corroborating evidence to support any of his other claims when he should have had at least some of the material readily available and he had been given ample time to produce it. 

22                  The approach the Tribunal took in this case is similar to that approved by Stone J in SZLOG v Minister for Immigration and Citizenship [2008] FCA 1186 at [14] where her Honour said:

The Tribunal based its adverse credibility finding on inconsistencies in four key aspects of the appellant’s evidence, all of which were raised at the hearing. It appears from the Tribunal’s record of decision that the Tribunal did not explicitly put its perception that the appellant was not a credible witness to him.  In my view, it is clear from the account of the hearing given in the Tribunal’s decision that the statements and questions put to the appellant were sufficient to indicate to him that everything he said in support of his application was in issue. 

I respectfully agree with her Honour’s conclusions that in taking this approach, the Tribunal has discharged its obligations under s 425.  For these reasons, I consider that the Tribunal did raise with the appellant all of the concerns it had with his claims, which concerns later formed the basis of its decision.  I therefore do not consider that there is any merit in the second ground of appeal. 

23                  Finally, it appears that the appellant may have purported to raise some new grounds of appeal in his written submissions. When I raised this matter with Mr Godwin, he stated that the Minister’s position was that leave was required to raise any such new grounds and the Minister opposed such leave being granted because none of the matters raised in the appellant’s written submissions had any merits.  I will therefore turn to consider those matters to determine whether any of them has any merits. 

24                  In the first paragraph of his written submissions, the appellant alleges the Tribunal failed to consider a key component of his claims, namely that he was under threat of persecution in India were he to return there, because of his membership of the CPI(M).  In my view, it is clear from the Tribunal’s decision record that it did consider this claim and rejected it because (as I have already observed above: see at [20] – [22]), it did not accept it as credible. 

25                  The second paragraph of the appellant’s written submissions alleges that the Tribunal did not comply with “its undertaking at the hearing to give the applicant an opportunity to address the issues in a written submission”.  In its decision record, the Tribunal records (at [81]), that: “The applicant said he wanted to obtain ‘real, true evidence’ to submit to the Tribunal as it was so important to him, because his life was at stake.  The Tribunal said it would wait until 19 December 2008 before making its decision, and would consider any further evidence submitted in that time. [NOTE: The Tribunal has waited until after mail was delivered on 19 December 2008, but no submissions had been received, either by mail, by hand, or by facsimile.]”  If this is the “undertaking” the appellant has referred to, it is clear that the Tribunal complied with it.  I note that the appellant did not suggest before me that he had attempted to submit any further materials before or after 19 December 2008.  Otherwise, there is no evidence before me of any other undertaking, or any breach of any such undertaking, by the Tribunal. 

26                  In the third paragraph of the appellant’s written submissions, he alleges that the Tribunal’s decision was unjust because it did not take into account the “full gravity of the [appellant’s] circumstance and consequence of the claims” (sic).  No particulars were provided of the claims the appellant says the Tribunal failed to consider. The appellant made a similar claim in relation to a specific claim in paragraph one of his written submissions and that is dealt with at [24] above.  Without any particulars of this allegation, it is, in my view, meaningless.

27                   Paragraphs four and five of the appellant’s written submissions appear to cover the same ground as the second ground of appeal (above) and do not, therefore, require any separate consideration. 

28                  In summary, for these reasons, I do not consider that any of the matters raised in the appellant’s outline of written submissions has any merit and, were leave sought to raise any one of them as a new ground of appeal, I would refuse such leave.

conclusion

29                  For these reasons, none of the appellant’s grounds of appeal has any merits and this appeal must therefore, be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         29 May 2009