FEDERAL COURT OF AUSTRALIA

SZQIL v Minister for Immigration & Citizenship [2012] FCA 452

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal by the appellant against an order of Federal Magistrate Barnes dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) for jurisdictional error. The Federal Magistrate concluded that no jurisdictional error was established.

2    The appellant is a citizen of Sri Lanka who was born in 1987 and who arrived in Australia from India in August 2010. He claimed to fear persecution in Sri Lanka on various grounds related to his Tamil ethnicity. He claimed that he was from an area in Sri Lanka, that he was a stronghold of the Liberation Tigers of Tamil Eelam (LTTE), that he was involved with the LTTE student movement, and that he was conscripted and trained by LTTE. He also claimed to fear persecution as a result of his relationship with an individual, a former classmate of the appellant, who was an LTTE collaborator taken by the Sri Lankan Army (SLA). He claimed to fear persecution at the hands of the police, the SLA and pro-government paramilitary groups.

3    The appellant’s application for a protection visa was refused by the delegate of the first respondent. He applied to have the delegate’s decision reviewed. The Tribunal held an oral hearing at which the appellant and his solicitor/migration agent were present. Following the oral hearing, the Tribunal wrote to the appellant in accordance with the requirements of s 424A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on certain information that may have contradicted evidence the appellant gave to the Tribunal. The appellant’s solicitor/migration agent provided a written response to the Tribunal’s letter. This response consisted of a written submission and a further statement from the appellant which provided what is referred to by the appellant in his notice of appeal as his “revised personal account” of relevant events.

4    The Tribunal decided to affirm the delegate’s decision not to grant the appellant a protection visa. The Tribunal provided detailed reasons for its decision. These made extensive reference to its s 424A invitation and the appellant’s response to it. It is sufficient to say for the moment that the Tribunal rejected the appellant’s claims that he feared that he would be persecuted if he returned to Sri Lanka essentially because it did not accept that he was a witness of truth, and it was not satisfied that various events directly relevant to the appellant’s claims ever occurred.

5    There were numerous grounds relied upon by the appellant in support of his application to have the decision of the Tribunal set-aside. All of them were rejected by the Federal Magistrate. In his appeal, the appellant challenges the learned Federal Magistrate’s decision in just one particular respect which concerns s 425(1) of the Act. It provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

6    The sole ground of appeal raised by the appellant is as follows:

The Court erred in holding that the second respondent had complied with section 425 of the Migration Act.

PARTICULARS

Error in finding that the second respondent did not have to give the appellant an opportunity to explain when events in his revised personal history occurred prior to them [sic] being disbelieved.

7    This ground of appeal relates to her Honour’s decision with respect to what was referred to as ground 4 in the appellant’s amended application. Ground 4 raised various matters, but it included an assertion that the Tribunal committed jurisdictional error when it failed to allow the appellant a proper opportunity to be heard on the matter referred to in para [101] of the Tribunal’s reasons for decision.

8    The Tribunal summarised (at para [100]) the key events relevant to the appellant’s claims. These events, as alleged by the appellant, were as follows:

(1)    He was detained on the road by the SLA, taken to the Joseph Camp and released the next day after paying a bribe.

(2)    Four days later he gave his classmate a lift and that night there was an attack on an SLA vehicle, which led to his classmate’s detention and the investigation of his other classmates. The appellant fled back to his hometown.

(3)    The appellant did voluntary work at his old school for a year.

(4)    The LTTE wanted to conscript a person from each family so the appellant went into hiding.

(5)    The appellant was captured and taken to a training camp in Iranaipaallai.

(6)    He escaped and fled to India after staying with his uncle for a few weeks.

9    The evidence the appellant initially gave to the Tribunal was that event (1) occurred in September or October 2007, event (2) about four days later, event (4) in November 2007 and event (5) in January 2009. As to event (6), the appellant said that about 10 days after he was taken to the camp, he escaped and went to his uncle’s house where he stayed for some two weeks before travelling to India in early 2009.

10    The appellant’s response to the s 424A invitation asserted that all of the key events occurred prior to December 2007. This was, as the appellant conceded in his s 424A response, inconsistent with what he told the Tribunal at the oral hearing.

11    The Tribunal observed (at para [101] of its reasons) that even though the appellant said in his s 424A response that all of the key events occurred prior to December 2007, he did not say when each of the key events occurred.

12    During the course of the oral hearing the Tribunal drew the appellant’s attention to information that was said to be in its possession that suggested that money was sent to a person with the appellant’s name at an address in India on 21 separate occasions between January 2008 and July 2009. The appellant’s response during the oral hearing was to assert (consistently with his earlier evidence to the Tribunal) that he did not go to India until 2009. The Tribunal member then said to the appellant that she was considering writing to the appellant to give him a further opportunity to respond and perhaps having a second hearing. She said:

Well I am thinking that I will write to you about this information and give you further opportunity to respond to it. Because if I think that you are in India a year earlier than you had said it may lead me to have some serious doubts about your claims as to what happened to you in Sri Lanka, particularly the year before you went to India. And I might have a second hearing. I am still giving it some thought. So do you want to say anything else at this stage[?]

If the appellant knew at this time that he was living in India in 2008 then this was a time to correct his earlier evidence. But he said nothing that might suggest that he resiled from his earlier evidence.

13    The Tribunal wrote to the appellant on 19 April 2011 pursuant to s 424A of the Act. After referring to (inter alia) the 21 payments, the Tribunal stated:

This information is relevant as it might lead the Tribunal to find that you were residing in India, in Chennai, from at least 21 January 2008. If the Tribunal makes this finding it may further find that you have fabricated your claims about having gone into hiding toward the end of 2008 to avoid conscription by the LTTE, about having been caught and arrested in January 2009 and taken to a camp in Iranaipillai from which you escaped. The Tribunal might not accept that you went to India in February 2009. The Tribunal might also find that you were living in India from at least January 2008 and that you were financially supported by [a named individual] who was living with your aunt in Australia. If the Tribunal makes those findings it might also find that you are not a witness of truth and the Tribunal might not accept that you have given a truthful account of what happened to you in Sri Lanka.

14    The relevant passage in the learned Federal Magistrate’s reasons for decision is at para [76]. Her Honour said:

Ground four and the particulars refer to what are said to be “issues” identified at particular places in the Tribunal reasons for decision. The first such reference is to a part of the decision ([101]) in which the Tribunal made the point that although the applicant claimed in response to the s.424A letter that all the events he had described had occurred at some time prior to December 2007, he had not said when it was that all the claimed incidents occurred. The Tribunal was not obliged to give the applicant a chance to comment on the view that it took of his testimony or the inadequacy of his evidence or to set out every detail of the reasoning process which it eventually employed (see Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60 at [54]). Nor was it obliged to invite the applicant’s further comment on why it was minded not to accept as satisfactory the explanations he advanced when the issue of his evidence about the time of his travel to India was raised with him.

15    In his submissions, counsel for the appellant focused on the last sentence in para [76] of her Honour’s reasons. He argued that the Tribunal was required to invite the appellant to provide further information as to when it was that he said the key events actually occurred. The time at which such events occurred was said by counsel for the appellant to involve a separate and distinct issue which arose out of the appellant’s s 424A response. It was submitted that the appellant was deprived of his right to be heard on that issue because it could not have been obvious to him or his solicitor/migration agent that he would be expected to deal with it in his s 424A response.

16    The Federal Magistrate made a finding that, at the time of the oral hearing, the appellant was on notice that the entirety of his account of events was in issue: cf. SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1. The appellant did not seek to challenge that finding in the appeal. It may be assumed that, at the time of the oral hearing, the appellant was on notice that the Tribunal might not accept his account of key events.

17    The Tribunal came to the view that the appellant was not a witness of truth, and it was not satisfied that his account of the key events was truthful. This is perhaps understandable given that the appellant knowingly persisted in what he later accepted to be a false account of his movements (in particular when it was that he was in India) during the course of the oral hearing even when confronted with information that suggested that his evidence might not be truthful. It was a matter for the Tribunal to assess what implications the inconsistencies in the appellant’s account of events had for his credit generally, and what significance an unfavourable credit assessment might have for the assessment of his claims overall.

18    The Tribunal drew attention in its reasons (in para [101]) to the lack of detail in the appellant’s s 424A response as to when each of the key events was said to have occurred. It was not suggested by counsel for the appellant that it was not open to the Tribunal to have regard to that lack of detail in assessing whether or not to accept the appellant’s revised account of events. The only question is whether the Tribunal was required to give the appellant a further opportunity to fill out the details at another hearing before doing so.

19    At the time the appellant and his solicitor/migration agent were preparing his revised account, it must have been obvious to them, as the s 424A invitation made clear, that the Tribunal might find that the appellant had given false evidence, that he was not a credible witness, and that it might not be satisfied that his claims were genuine. Moreover, I think it must have been obvious to the appellant and his solicitor/migration agent that, given his acceptance that he had knowingly given a false account of events at the oral hearing, his revised account would in all probability be closely scrutinized, and that there was a risk that the Tribunal would not accept his revised account if, rather than stating when each of the key events occurred, he merely indicated that it was conceded that they all occurred before December 2007.

20    The object of s 425 of the Act is to ensure that an applicant for review is given a meaningful opportunity to give evidence and present submissions to the Tribunal in relation to the issues arising in relation to the review. As the learned Federal Magistrate observed, s 425 did not require the Tribunal to give the appellant an opportunity to comment on the view it took of the inadequacy of his evidence or to set out every detail of the reasoning process which it eventually employed.

21    The appellant relied upon the decision of Cowdroy J in SZLNW v Minister for Immigration and Citizenship [2008] FCA 910 in which his Honour set aside a decision of the Tribunal on the ground that it had not complied with s 425 of the Act. According to his Honour’s judgment (at para [28]) the Tribunal had said:

The Tribunal considered the applicant’s associated claim that he may be targeted by persons he arrested during his SLA service. He claims they will now seek revenge. However, the applicant could not name or identify those persons and the Tribunal finds that the risk is remote that persons arrested by the applicant over twenty years ago will now, or in the reasonably foreseeable future, seek to harm.

22    It was submitted to his Honour that there had been a failure to comply with s 425 of the Act because the Tribunal did not give any indication to the applicant that it might be unable to find in his favour because he had not named or identified the person who might wish to harm him. Cowdroy J referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 which was said to support such a submission. His Honour accepted that submission and said (at para [39]):

The decision in SZBEL makes it plain that if the Tribunal is to determine the application before it adversely to the applicant for a specific reason, it is obliged to put that circumstance to the applicant and to invite the applicant to respond.

23    I do not think his Honour’s decision assists the appellant’s case. Here the appellant was on notice that the Tribunal might take an unfavourable view of his credit and that it might not accept that any of the key events referred to by the appellant ever occurred. Further, the Tribunal did not reject the appellant’s claims because the appellant could not say when the events in question occurred. The appellant’s claims were rejected by the Tribunal because, on the view it took of the appellant’s credit, it could not be satisfied that the key events ever occurred.

24    I am satisfied that the Tribunal was not obliged to provide the appellant with any further opportunity to provide the information which it noted in its reasons for decision was missing from the appellant’s revised account of events. In my opinion the Tribunal complied with its obligations under s 425 of the Act.

25    The appeal should be dismissed with costs.

Associate:

Dated:    3 May 2012