FEDERAL COURT OF AUSTRALIA

SZQUM v Minister for Immigration and Citizenship [2012] FCA 493

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from orders made by a Federal Magistrate (Nicholls FM) on 14 February 2012 dismissing an application for review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 22 September 2011. The Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a Protection Visa.

2    The appellant is a citizen of Nigeria, of Igbo ethnicity and Christian faith. He also claims to be a citizen of South Africa.

3    The appellant claims to have a well-founded fear of persecution in Nigeria because he gave information to the police about members of a militant indigenous group known as the Asare which he says have tried to kill him. He claims the authorities in Nigeria will not protect him.

4    The claims appear to have been made on the ground of ethnicity or membership of a particular social group.

5    The appellant claims that he would not be safe in South Africa because members of the Asare have located him there. He also claims to have a well-founded fear of persecution if he returns to South Africa by reason of his race as a Nigerian and because of his membership of a particular social group relating to his status as a foreign born South African citizen.

Delegate

6    The delegate found that the appellant was a citizen of Nigeria and South Africa but did not consider his evidence to be credible because of a number of inconsistencies in his claims.

7    The delegate was willing to accept that the appellant left Nigeria because he feared harm from the Asare but, because of the “overall lack of credibility” of the appellant’s claims, the delegate was not satisfied that his fear of harm was on account of ethnicity or for any other Convention ground.

8    The delegate was not satisfied that the appellant had a genuine fear of persecution in South Africa in particular because the delegate said he was not forthright in a variety of matters in his evidence.

The Tribunal

9    The Tribunal dealt comprehensively with the appellant’s claims. It set out a detailed account of his travel history and his claims, as well as the delegate’s decision and a full account of the hearing before the Tribunal.

10    In addition, the Tribunal referred to a lengthy letter under s 424A of the Migration Act 1958 (Cth) (the “Act”) (“s 424A letter”) which it had sent to the appellant, as well as his response, and gave a detailed account of relevant country information before turning to its findings and reasons.

11    The Tribunal did not consider it appropriate to take an overly stringent approach to the credibility of the appellant’s claims, provided that it was satisfied as to his general credibility. However, the Tribunal was not satisfied as to the appellant’s general credibility. It found that he contrived all of his claims. It gave detailed reasons for its findings.

12    The Tribunal dealt with the appellant’s response to the s 424A letter but did not accept the explanations given by him.

13    The essence of the Tribunal’s findings may be found at [205] in which it said:

All the inconsistent, false and misleading evidence indicates to the Tribunal the applicant has consistently fabricated information about all aspects of his life and reasons for seeking to engage Australia’s protection obligations. The Tribunal finds the applicant has provided false and misleading evidence throughout the course of his dealings with the immigration authorities in Australian [sic] and finds he is not a witness of truth.

14    The Tribunal addressed at [214] a claim made by the appellant that he has a poor memory because of problems he faced in Nigeria. It also considered the appellant’s response to the s 424A letter in which he accepted that he gave inconsistent information at times. He explained this by saying he has tension and memory loss. The Tribunal did not accept the appellant’s explanation.

Federal Magistrates Court

15    The appellant sought judicial review on two grounds. First that the Tribunal’s decision was made in breach of natural justice. Second, the Tribunal:

… failed to consider crucial evidence constructively before it.

16    The Federal Magistrate rejected the natural justice ground. He observed that the only account of what occurred at the hearings was the Tribunal’s description as set out in its decision record.

17    The Federal Magistrate found that the account set out by the Tribunal reveals that it raised with the appellant the issues determinative of the review: see at [27]. He went on to say at [30]:

What relevant evidence is before the Court (the Tribunal’s unchallenged account) reveals that the determinative issue and relevant matters were appropriately raised, and an opportunity for comment provided. There is no evidence that the proceedings were truncated such as to deprive the applicant of a meaningful opportunity to comment and give his evidence.

18    The Federal Magistrate observed that the appellant was represented before the Tribunal by the Refugee and Immigration Legal Service of Victoria, which participated by speakerphone and that no complaint was made by it about the processes followed by the Tribunal.

19    The Federal Magistrate addressed a complaint made by the appellant as to the length of time given to him to respond to the s 424A letter. His Honour observed that the seven day period was the period prescribed by the Act and the Migration Regulations 1994 (Cth) (“Regulations”). I note here that there is a minor factual error in the Federal Magistrate’s reasons because the letter was faxed to the appellant on 29 August 2011, not 28 July 2011 as stated in [33] of the reasons. However, the Federal Magistrate correctly stated the reply date specified in the letter, namely 5 September 2011.

20    The Federal Magistrate then turned to the second ground of review. One aspect of this, as it was put before the Federal Magistrates Court, was that the Tribunal did not consider that the appellant was sick and that a doctor’s report showed he had high blood pressure.

21    The Federal Magistrate observed at [44] that the Tribunal’s decision record made reference to a medical report (at [51] of the Tribunal’s reasons) but it made no reference to any blood pressure difficulties.

22    However, it appears that documents put before the Federal Magistrates Court after the conclusion of the hearing indicate that the appellant underwent a medical examination some months prior to the hearing which noted “elevated bp”.

23    The Federal Magistrate went on to find that there was nothing before the Court to show that the issue of elevated blood pressure affected the appellant’s ability to participate in the hearing, or the conduct of the review. The learned Federal Magistrate said at [46]:-

The Tribunal’s reference to the medical report is sufficient to answer the applicant’s complaint before the Court. If there was anything further as to how the elevated blood pressure had affected his capacity to give evidence at the hearing then it was not put before the Tribunal for consideration.

24    The Federal Magistrate went on to refer to a letter written by the appellant to the Tribunal shortly after the hearing in which he said that he was taking a number of prescribed medications. The Federal Magistrate stated that on the appellant’s own evidence, this allowed the elevated blood pressure to be controlled with medication by the time of the hearing.

25    The Federal Magistrate said at [47] and [48]:

[47] The only medical condition which was put forward to the Tribunal as affecting his capacity was a claim put in explanation of the inconsistencies in his evidence. That is that he suffered from memory loss and could not “remember things clearly” (item 6 at CB 153). The Tribunal noted this in its decision record ([181] at CB 201).

[48] Contrary to the applicant’s complaint now, the Tribunal did consider the applicant’s claim in this regard. The Tribunal found ([214] of CB 211):

... that the applicant is unable to recall particular events or gives inconsistent evidence, not because of any loss of memory relating to being harmed, suffering any injuries or psychological stress but due to having contrived his claims for protection.

26    The Federal Magistrate referred to well known authorities dealing with the obligation of the Tribunal to consider all of the appellant’s claims and aspects of the claims expressly made and clearly arising from the circumstances: eg NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 219 ALR 27.

27    The Federal Magistrate concluded by saying at [57] to [60]:

[57] In the current case, the Tribunal did consider the applicant’s claims. Notwithstanding the difficulty presented to the Tribunal as to the truth of what the applicant variously said by the way of various inconsistent accounts given by the applicant, I cannot see that the Tribunal failed to meet its obligations in this regard.

[58] That the Tribunal did not accept as true large parts of the applicant’s claims does not mean that the Tribunal failed to consider what the applicant now claims is “crucial evidence”. The Tribunal is not required to uncritically accept the applicant’s accounts (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).

[59] It was clear before the Court that the applicant did not understand, or chose not to accept, that if an applicant presents such significantly inconsistent evidence in relation to his application for a protection visa and the Tribunal’s review, he runs the risk that the Tribunal will find adversely to him.

[60] In the current case, the Tribunal found in emphatic and comprehensive terms that the applicant was not credible, had provided false and misleading evidence, had fabricated claims and was not a witness of truth ([200] at CB 207, [201], [204] at CB 208, [205], [207] at CB 209, [21] at CB 210, [214] at CB 211). Those finding were all open to the Tribunal on what was before it. No legal error is revealed and ground two is not made out.

The appeal

28    The Notice of Appeal repeats the grounds relied upon in support of the application for review in the Federal Magistrates Court.

29    The appellant appeared in person. He was assisted by an Igbo interpreter.

30    The effect of what the appellant said was that the Tribunal assumed he was well enough to give evidence before the Tribunal and present arguments relating to the issues that arose.

31    This was said to be an error because in fact he was not well enough to do so due to his elevated blood pressure.

32    Mr Baird, who appeared for the Minister, pointed out that it followed from the appellant’s submissions that his complaint was that he was denied a fair hearing before the Tribunal because his high blood pressure affected his ability to present his case.

33    That is to say, the contention was that his high blood pressure was responsible for his loss of memory which was critical to the adverse findings against him made by the Tribunal. But for this he might have been able to persuade the Tribunal as to the truth of his claims to have a well-founded fear of persecution.

34    Thus, as Mr Baird observed, this could be understood as giving rise to two possible heads of jurisdictional error.

35    The first was that the Tribunal did not give the appellant a real and meaningful invitation to attend the hearing as required by s 425 of the Act.

36    The second was that the appellant claimed to have given an explanation to the Tribunal for his poor memory, that the Tribunal was required to deal with the explanation but it did not do so.

The s 425 ground

37    The s 425 ground cannot be maintained for a number of reasons.

38    In particular, the question which arises is one of fact. It was for the appellant to establish that his physical or mental state was so affected that he could not give an account of his experiences or present arguments in support of his claims, or to understand and respond to the questions put to him: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [20] per Keane CJ.

39    Here, the appellant did not claim before the Tribunal that his elevated blood pressure affected his ability to give evidence. His only explanation for his poor memory was stress and tension arising from events in Nigeria.

40    There was nothing before the Tribunal to suggest that the appellant’s blood pressure affected his ability to give evidence and present arguments in the manner contemplated by the relevant authorities.

Dealing with the claims

41    As I have said, the only explanation which the appellant offered for his inconsistent evidence was stress and tension. This was contained in paragraph 6 of his response to the s 424A letter.

42    The Tribunal dealt with this at [181] of its reasons and the Federal Magistrate addressed it at [47] and [48] which I have set out above.

43    This provides a complete answer to the second ground of appeal. The Tribunal had to address the appellant’s explanation for his inconsistent evidence. It is evident from what the Federal Magistrate said that he was satisfied that the Tribunal did so. There was no error in this.

The s 424A letter

44    The only other issue addressed in argument was whether the appellant was given the prescribed period within which to reply to the letter.

45    The letter was sent by fax to the appellant’s representative on 29 August 2011. He was given until 5 September 2011 to respond. This was in conformity with the Act and the Regulations: see s 424B(2), s 441C(5) and Reg 4.35(2); see also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [15]; Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163 at [4] to [5] ; Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 at [54] to [57]. The appellant’s immigration agent responded to the letter within time and did not seek an extension.

Conclusion and Orders

46    The appeal must be dismissed with costs.

Associate:

Dated:    15 May 2012