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Federal Court of Australia |
Last Updated: 29 November 2005
FEDERAL COURT OF AUSTRALIA
SZBCF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1719
MIGRATION - inconsistencies between the visa
application/statement and the evidence at the hearing – whether
statement or information reason or part of the reason for the decision is a
matter of logical analysis of reasons – statement by the Tribunal
that the decision was for all of the reasons enumerated does not mean that all
of those reasons were the
reason or part of the reason for the decision -
reason for the Tribunal’s decision was that the appellant had
fabricated his claims - appellant was not of adverse interest
to the police - no
failure on the part of the Tribunal to comply with s424A(1) of the
[2001] FCA 919; Act
Minister for Immigration and Multicultural Affairs v Al Shamry
(2001) 110 FCR 27
Re Minister for Immigration and Multicultural
Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SAAP v Minister
for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR
162
VAF v Minister for Immigration and Multicultural and Indigenous
Affairs (2004) 206 ALR
471
SZBCF
V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS &
ANOR
N1921 OF 2004
BENNETT J
29 NOVEMBER
2005
SYDNEY
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SZBCF
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be dismissed. 2. The appellant pay the respondents’ costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 The appellant, an Indian national, was an unsuccessful applicant for a protection visa. By notice of appeal in this matter, which was filed on 17 December 2004, the appellant appeals from the whole judgment of Federal Magistrate Raphael on 9 December 2004. Raphael FM dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 June 2003. The Tribunal affirmed a decision of a delegate of the respondent (‘the delegate’) made on 23 August 2002 to refuse to grant the appellant a protection visa.
2 The appellant claims to have a well founded fear of persecution due to his Muslim faith. Originally from the state of Tamil Nadu, the appellant resided in the state of Gujarat from 1977 until 2002 where he operated a restaurant. The appellant claimed that in February 2002, his restaurant was burned down by a group of Hindu extremists. He alleged that in this riot nearly 70 Muslims were killed and that Hindus had tried to kill him. Afterwards, the appellant left Gujarat and returned to Tamil Nadu. In April of 2002 he claims that the Gujarat police who were associated with Tamil Nadu police came to his house accusing him of involvement in a Ghodra train incident (when a train full of Hindus was set alight by Muslims in February 2002). He stated that he was not at home at the time. The appellant obtained a temporary business visa and then left India on a valid passport and entered Australia on 6 June 2002. The appellant says that he fears that if he returns to India he will be arrested in connection with the Ghodra incident in respect of which he claims to have played no part in.
The Hearing before the Tribunal
3 Before the hearing, the Tribunal sent a letter to the appellant under s424 Migration Act 1958 (Cth) (‘the Act’). In summary, that letter put to the appellant the following requests:
‘(1) Provide documentary corroboration of [your] claim to have owned and managed a restaurant in Gujarat for 25 years until February 2002, and documentary corroboration that this restaurant was burned down during riots in February 2002;
(2) Information available to the Tribunal indicates that very thorough checks are undertaken by local police to investigate an individual’s status, including whether there is a criminal case pending against the individual, when a person applies for a passport. .. Explain how you were able to obtain a passport in your own name and depart India on that passport if you were under suspicion of having committed a criminal offence and were wanted by the Gujarat and Tamil Nadu police forces;
(3) Information available to the Tribunal indicates that India is a longstanding parliamentary democracy, with an independent judiciary, a broad range of democratic institutions and a comprehensive constitutional framework for the protection of human rights. Explain why you did not seek the protection of the Indian authorities against the corrupt actions of certain BJP members from Gujarat in relation to the false accusation of your involvement in the Godhra train incident;
(4) Independent information available to the Tribunal indicates that there are no legal or other impediments to Indian citizens relocating within India. Explain why you made no effort to avoid the corrupt BJP members by relocating to another area of India;
(5) [E]xplain why you delayed your departure from India until 5 June 2002 notwithstanding that you obtained a passport on 4 January 2002 and a visa to enter Australia on 20 May 2002.’
4 The letter concluded with; ‘If you do not provide the additional information by 29 May 2003 the Tribunal may make a decision on the review of your case without further notice.’
5 The appellant’s response, as summarised by the Tribunal in its reasons provided no corroborative documentation or evidence in support of his claims:
‘The [appellant] states that he was unable to supply documentation corroborating his claim to have run a restaurant in Gujarat because the restaurant was destroyed in the riots. He claims that when he fled Gujarat he wanted to settle in his home village in Tamil Nadu but could not because his name was included in a list made by the Gujarat police of wanted persons from Tamil Nadu. He claims that his departure from India was delayed because he was in hiding waiting for the issue of his Australian visa but that the agent who obtained the visa delayed providing it to him and that he spent two weeks collecting money to pay from the agent. The [appellant] also states that Muslims are never treated fairly in Indian courts and that the police in Gujarat were involved in the violence against Muslims.’
6 The Tribunal did not accept that the appellant had genuine or well-founded fear of persecution by reason of religion or for any other Convention reason. The Tribunal rejected as fabrication the appellant’s claims. In summary, the Tribunal’s findings about the appellant’s claims were; ‘his claims are contrary to the available independent information, he has failed to provide adequate support, documentary or otherwise, for his claims. His claims are vague, lack detail and are inconsistent and his behaviour is inconsistent with a genuine fear of persecution.’ The Tribunal then expanded and explained its reasons.
Decision of the Federal Magistrate
7 On 1 June 2004 the appellant filed an amended application for review under s39B Judiciary Act 1903 (Cth). The issues raised were:
• The respondent’s alleged failure to supply the appellant with a copy of the Court Book;
• The genuineness and truthfulness of the claims which the Tribunal had rejected;
• The illogicality of the Tribunal’s comment that the appellant’s delay in fleeing India did not fit the profile of a person who fears persecution;
• A claim made by the appellant for the first time at the Tribunal hearing, namely, that he managed to leave India despite being on a wanted list because he paid bribes to officials at the airport.
8 Raphael FM noted that the appellant had a copy of the court book on the day of the hearing and that it had not just been given to him. His Honour held [at 12] ‘This would not be a ground of jurisdictional error in respect of the Tribunal’s actions but it might have been an excuse to delay this hearing.’ His Honour observed at [11] that another Tribunal might not have taken the view that the appellant’s delay in fleeing India ‘called his evidence in to question’ but the Tribunal’s finding on that subject did not amount to jurisdictional error. His Honour concluded that the remaining grounds went to merits review of the appellant’s claims.
9 His Honour also held that the Tribunal had provided the appellant with procedural fairness, noting that the Tribunal raised matters it considered to be of concern, both in a letter to the appellant and again at the hearing and that the Tribunal had come to its decision based on its view of the appellant’s credibility. Raphael FM was unable to identify a jurisdictional error on the part of the Tribunal and dismissed the application. His Honour said that he was ‘quite satisfied from reading the decision of the Tribunal that it undertook its tasks in accordance with the provisions of the Act’.
Notice of Appeal
10 The amended notice of appeal, filed on 8 March 2005 raises the following grounds.
Ground 1: failure to provide procedural fairness in failing to provide the opportunity to comment on independent information
11 In his written submissions, the appellant says that the ‘Tribunal did not give me any standard theory of credible explanation or it did not explain me haw they believe that a the information credible’.
12 The Tribunal was under no obligation to provide the appellant with such a theory or to explain why it found the information lacking in credibility. The Tribunal is obliged to give reasons for its decisions, ‘not the sub-set of reasons why it accepted or rejected individual pieces of evidence’ (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
13 The claim that the appellant was not given a chance to comment on independent information that was considered by the Tribunal was not raised before Raphael FM. However, his Honour addressed the issue of procedural fairness and, at [13], concluded that the Tribunal ‘provided the [appellant] with procedural fairness in relation to matters it considered to be of concern by sending him the s424 letter’.
14 The Tribunal referred to independent information regarding the general human rights situation, the judicial system and access to protection and redress for abuse of human rights, the jurisdiction of state police, freedom of movement, the issuing of passports and controls on departure from India. None of that material concerned the appellant personally and the information comes within s424A(3) of the Act. The Tribunal was not obliged to invite the appellant’s comments on it. No breach of s424A is established.
15 In any event, the appellant’s claim that he was given no opportunity to comment on the independent information is unfounded. In its letter to the appellant dated 6 May 2003, the Tribunal informed the appellant that it had available to it information regarding passport and departure procedures and the independence of the judiciary. It summarised the content of that information and directed the appellant to provide his comments in writing by 29 May 2003.
16 The appellant responded by letter dated 26 May 2003. In that letter he raised factual matters concerning his own claims. He also referred generally to treatment of Muslims in India, the role of the police and his belief that he would not be treated ‘in humanitarian way’ by the Indian government. He also referred to ‘photograps [sic] issued in the news papers about the police part in violence’.
17 During the hearing the Tribunal put to the appellant that the Gujarat police do not have jurisdiction in other states, incl uding the appellant’s home state of Tamil Nadu. The Tribunal again directed the appellant’s attention to the information cited in the 6 May 2003 letter regarding passport and departure controls and the avenues which the appellant could have pursued to seek redress.
18 The Tribunal took appropriate and effective steps to inform the appellant about the independent information and to allow him to respond to it. The Tribunal did not fail to afford procedural fairness, either by way of the provisions of the Act or the obligations owed under the ordinary principles.
Ground 2: failure to provide support for the claims
19 The Tribunal stated that the appellant had not provided any evidence, documentary or otherwise, to support his claims. The Tribunal gave examples of claims for which supporting documentary evidence was not provided.
20 The appellant contends in this ground of appeal, effectively repeated in his written submissions, that it was not possible to obtain copies of documents such as court records or order of arrest without appearing in court.
21 This ground was not raised before the Federal Magistrate. Accordingly, it cannot be said that his Honour erred in failing to consider it, as asserted in ground 2. The respondent submits that leave should not be granted to the appellant to argue ground 2.
22 Ground 2 is directed to findings of fact by the Tribunal rather than to any alleged jurisdictional error. Furthermore, it is based upon assumptions of fact that are made by mere assertion, not evidence. Leave to rely upon ground 2, which was not raised before Raphael FM is refused.
Additional ground: the role of the information in the visa application in the Tribunal’s decision
23 Under the heading "Findings and Reasons", the decision of the Tribunal was divided into a number of sub-headings. First was "Summary of findings" which consisted of [34]:
‘I do not accept that the [appellant] has a genuine or well-founded fear of persecution by reason of his religion or his political opinion, or for any other Convention reason. I am satisfied, for the reasons given below, that the [appellant] has fabricated his claims in order to extend his stay in Australia. Those reason are, in summary, because his claims are contrary to the available independent information, he has failed to provide adequate support documentary or otherwise, for his claims, his claims are vague, lack detail and are inconsistent, and his behaviour is inconsistent with a genuine fear of persecution.’
At the hearing, I raised with Ms Henderson who appeared for the Minister, concerns about the Tribunal’s decision and, in particular the Tribunal’s statement at [42], under the sub-heading "Vague, inconsistent claims lacking in detail" that the appellant did not resolve to its satisfaction conflicts between his evidence to the Tribunal and evidence in his visa application. This raised the question of compliance with s424A(1) (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27).
24 Ms Henderson filed comprehensive written submissions, both as to the relevant authorities and the application of the resulting principles to this Tribunal decision. Those submissions were, if I may say so, balanced, especially in the discussion of previous decisions of the court and particularly helpful.
25 In summary, Ms Henderson relied upon the following principles:
• S424A obliges the Tribunal to give the appellant particulars in writing of any information that it considers would be the reason or part of the reason for affirming the decision under review, regardless of whether procedural fairness has been accorded (SAAP).
• In SAAP the question whether the Tribunal is obliged to put back to an applicant information which he or she has provided did not arise. However, McHugh J said at [50] that the obligation does not apply to information given by the applicant, regardless of when that information is given; it applies to information received from sources other than the applicant.
• However, this seems to be inconsistent with the decision of the Full Court in al Shamry as applied in the Court after SAAP.
• There remain some issues to be determined in order to ascertain if s424A(1) has been complied with.
• The first is whether the applicant incorporated information which he or she originally gave to the Department into his/her Tribunal application, effectively converting it into s424A(3)(b) information.
• The second is whether a particular finding by the Tribunal constitutes information or whether it is properly to be characterised as a subjective appraisal by the Tribunal.
• The third is whether the information referred to by the Tribunal in its decision was "the reason or part of the reason" for the decision.
26 In this case, it cannot be said that the appellant adopted or incorporated the information in his visa application or an earlier written statement into his application to the Tribunal, either in writing or orally. The only reference to the information in the Department file was the file number reference in the application.
27 It is accepted that, in its decision, the Tribunal cited three inconsistencies between information given to it and information in the visa application or earlier written statement. The respondent accepts that ‘it would be artificial to approach the three findings on the basis that they do not involve ‘information’ that potentially falls within the terms of s424A(1)’. Ms Henderson does not seek to rely upon the information as subjective thought processes of the Tribunal member.
28 Ms Henderson does submit that the use of the information in the visa application or statement was not an integral or essential part of the Tribunal’s reasons but, rather, were inessential to those reasons, within the principles enunciated in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471. This involves an evaluation by the Court of the reasons for the purposes of s424A(1) and is not dictated by the Tribunal’s expression of the basis or bases of the reasons.
29 Ms Henderson then analysed the inconsistencies referred to in the Tribunal decision. It is appropriate to set out that part of the submissions in full:
‘The first inconsistency mentioned by the Tribunal related to the appellant’s whereabouts when Gujarat police allegedly came to his house on 15 April 2002. In his written statement the appellant said he had fled from Gujarat and had arrived at his ‘native place’, ie Tamil Nadu, when the police appeared on that day. At the hearing he told the Tribunal that he was in Gujarat in March, April and May 2002.
The Tribunal’s finding about this inconsistency can properly be characterised as ‘inessential’, using the language of VAF, because elsewhere in its Reasons the Tribunal made an independent finding that the alleged visit by Gujarat police never took place at all. The Tribunal referred to country information about the jurisdiction of State police in India at [36] and concluded that ‘the Gujarat police did not pursue the applicant to Tamil Nadu.’ In the light of that conclusion, the inconsistency as to the appellant’s whereabouts on 15 April 2002 became arguably academic, and at least less than ‘integral.’
The second and third inconsistencies cited by the Tribunal arise from what is, in essence, a single issue: being on a Police wanted list but nonetheless being able to escape from India. This topic was also the subject of a separate finding elsewhere in the Tribunal’s Reasons. At [35] the Tribunal relied on independent information to ground a finding that the appellant ‘was able to depart India without difficulty because he is not of adverse interest to the police’ [35].
The Tribunal had drawn the appellant’s attention to the relevant independent information, in writing, prior to the Tribunal hearing. In a letter dated 6 May 2003 the Registrar sought information/explanations from the appellant on a number of issues, including the following;
Information available to the Tribunal indicates that very thorough checks are undertaken by local police to investigate an individual’s status, including whether there is a criminal case pending against the individual, when a person applies for a passport. The information available to the Tribunal also indicates that the Immigration Service, under the authority of the Ministry of the Interior, is responsible for checking people leaving India, and that there is at present a massive campaign, particularly at international airports, against corrupt officals who assist wanted persons leaving India on genuine or false passports. Explain how you were able to obtain a passport in your own name and depart India on that passport if you were under suspicion of having committed a criminal offence and were wanted by the Gujarat and Tamil Nadu police forces.
The appellant responded with his letter dated 26 May 2003 in which he claimed, for the first time, that his name appeared on a Police wanted list, that he was in hiding prior to leaving India, and that he had experienced some difficulty in arranging his departure;
The Gujarat Police issued the list of wanted people from Tamil Nadu also in which my name also was included. I felt that leaving the country is the best way of saving my life. ..
...when I was under the Police searching I planned to escape from India. I was hiding in Tamil Nadu and waiting for my visa. It was delayed by the agent. He collected some money and obtained the visa to Australia in May 2002. I further spent 2 weeks to collect money from my friends and have paid the agent.’
30 Ms Henderson submits that there was sufficient compliance with s424A(1) in giving the appellant the particulars of the fact that his ability to leave India while allegedly being sought by the police would be "the reason or part of the reason" for its decision to affirm the Delegate’s decision. I do not agree. It was not the ability to leave India that formed part of the decision but the inconsistencies between the visa application/statement and the evidence at the hearing that was referred to.
31 I accept that the first inconsistency related to the appellant’s whereabouts when Gurarat police allegedly came to his house was inessential for the reasons advanced on behalf of the Minister.
32 The reason for the Tribunal’s decision was that the appellant had fabricated his claims. That reason was based upon information in respect of a number of matters:
• The appellant’s claims were contrary to independent information of which particulars do not need to be given (s424A(3)(a)).
• That led the Tribunal to conclude that the appellant was able to obtain his passport and depart India without difficulty because he was not of adverse interest to the police.
• Independent evidence was also accepted that police of one state have no jurisdiction in another state. Accordingly, the Tribunal found that the Gujarat police did not pursue the appellant to Tamil Nadu. The Tribunal was not satisfied that the appellant was of interest to any police force at the time he left India or at any other time.
• No supporting documentation was provided, in particular none in connection with the matters for which he alleged police interest in him. The Tribunal was not satisfied that the claims of a false complaint to the police or of an order to arrest the appellant were true.
• The claims, including those of being on a wanted list, evasion of arrest, evasion of security forces at the airport and why there was no attempt to seek protection against harassment by local and Gujarat police, lacked detail.
• There was no detail of the date on which the false case was made or lodged, nor of the specific offence or offences of which he was accused.
• The appellant did not resolve the inconsistencies about leaving India legally with the obligation to pay bribes and use of contacts to "sneak in" at the airport. The claim of having to evade security forces was not made prior to the hearing and only then in explanation of how he could have left India despite being on a wanted list and being sought for arrest by the chief of the local police.
• The evidence at the hearing of being on a wanted list and subject to charges for which the local police sought to arrest him conflicted with the statement in the visa application that he has never been the subject of criminal investigation or charge.
• Several aspects of the appellant’s behaviour are inconsistent with a genuine fear of persecution and support the findings that the claims are fabricated. This included delay in obtaining a visa, delay in departing India after the visa was granted and delay in seeing protection in Australia.
33 The finding, based on independent information, was that the appellant was not of adverse interest to the police. That formed the basis for the Tribunal’s ultimate reason at [34] for finding that the appellant did not have a genuine or well-founded fear of persecution by reason of his religion or his political opinion, or for any other Convention reason.
34 As in VAF at [30], it can be said that the remaining matters were considered by the Tribunal to have some relevance to the determination to be made. The Tribunal’s treatment of those matters was as information that had a place in the reasoning process. Expressions by the Tribunal in the context of its conclusion such as "for all the above reasons" (VAF at [38]) or, as here, "for the reasons I give below" do not necessarily make each subsequent statement or piece of information referred to "the reason" or "part of the reason" for the decision. It is a matter of logical analysis of the reasons.
35 In the present case, an analysis of the Tribunals’ reasons demonstrates that the aspect of the claim it considered fundamental to the determination was that the appellant was not of interest to the police. It was that claim to which all of the factual matters such as which police force, the nature of the charges and the appellant’s ability to leave the country were directed. The Tribunal decided that fact by reference to the independent information, which it preferred to the unsubstantiated claims of the appellant. The rest of the Tribunal’s reasons, set out after that clear finding, provide further support for or refer to evidence consistent with that conclusion. They cannot be said of themselves to be part of the reason for the decision.
36 Accordingly, there has been no failure on the part of the Tribunal to comply with s424A(1) of the Act.
Conclusion
37 The appellant has not established a denial of procedural fairness as asserted in the first ground of the amended notice of appeal. Leave to rely upon the second ground of appeal is refused. The additional question raised, whether there has been a failure to comply with s424A(1) of the Act is answered in the negative.
38 It follows that the appeal is dismissed with costs.
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I certify that the preceding thirty eight (38) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Bennett.
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Associate:
Dated: 29 November 2005
The Appellant
appeared in person with an interpreter.
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Counsel for the Respondent:
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RM Henderson
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of last written submissions:
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21 September 2005
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Date of Hearing:
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1 September 2005
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Date of Judgment:
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29 November 2005
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