SZKEJ v Minister for Immigration and Citizenship [2007] FCA 1899 (7 December 2007)

Last Updated: 7 December 2007

FEDERAL COURT OF AUSTRALIA

SZKEJ v Minister for Immigration and Citizenship [2007] FCA 1899

Migration Act 1958 (Cth), ss 36(2), 424A, 424A(1), 425(1)

SZKEJ v Minister for Immigration & Citizenship [2007] FMCA 838 affirmed
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited



























SZKEJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1013 OF 2007

GYLES J
7 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1013 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKEJ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	7 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1 The appeal be dismissed.
2 The appellant pay the costs of the first respondent.


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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1013 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKEJ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GYLES J
DATE:	7 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of the Federal Magistrates Court (SZKEJ v Minister for Immigration & Citizenship [2007] FMCA 838) dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), not to grant the appellant a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act).

2 The appellant, a citizen of Pakistan, arrived in Australia on 28 August 2004 and lodged an application for a protection visa on 5 October 2004. He claimed to fear persecution for political reasons because of his involvement with the Pakistan Muslim League of which he was the local Area President.

3 On 22 October 2004, a delegate of the first respondent, the Minister for Immigration and Citizenship, refused the application. The Tribunal affirmed that decision. An application to the Federal Magistrates Court resulted in orders by consent remitting the matter to the Tribunal. A differently constituted Tribunal heard further evidence from the appellant and again affirmed the decision to refuse a protection visa.

4 The essence of the Tribunal’s decision was that, as a result of a number of inconsistencies between the evidence contained in his protection visa application, the evidence he supplied at the first Tribunal hearing and the evidence he supplied at the second Tribunal hearing, the appellant was not a credible witness. As a result, the Tribunal did not accept the appellant’s claims to have suffered persecution in Pakistan, nor was it satisfied that he faced a real chance of persecution were he to return there. Accordingly, the Tribunal determined that the application did not satisfy the criterion for a protection visa.

5 The grounds of the application for review in the Federal Magistrates Court were as follows:

"(1) The Tribunal relied on the previous RRT decision with much information without giving the applicant opportunity to comment upon the information given to the Tribunal before and during the interview which give rise to breach of s.424 of the Migration Act.

(2) Whilst the Tribunal has leeway as to how the provided information is interpreted, the decision involves jurisdictional error affecting the decision as the Tribunal has erroneously adopted the approach that generally documents obtained from Pakistan are fake. The Tribunal could have checked the authenticity of the documents from the issuing agencies through Australian overseas post.

(3) The Tribunal has erred in failing to make enquiry to the adequacy of the applicant’s claim that he was arrested, detained and gaold (sic jailed) for considerable period of time.

(4) The Tribunal has erred in making findings that the documentary evidence provided is fake and fail to take into account matters within jurisdictional facts and erroneously failing to consider such facts."

Turner FM considered and rejected each of those grounds and dismissed the application.

6 The appellant raises three grounds of appeal. The appellant did not present any substantive submissions, either in writing or orally. The first and second grounds are as follows:

"1. His Honour and the Tribunal breached section 424A(1) of the Act in failing to provide the Applicant to comment on information specific to the applicant’s claim:

Particulars

The Tribunal has given a generalised notice under section 424A of the Act that bears no relationship to the Appellant’s claim. His Honour should have found that the Tribunal was in breach of the section 424A; this constitutes jurisdictional error. The 424A notice fails to address the specifics of the claim that applicant was involved in political activities.

2. His Honour should have found that the Tribunal failed to appropriately deal with the documents in particular the inference that the documents are fabricated thus breaching section 424A.

Particulars

The Tribunal inferred that the documents that the applicant’s submitted were fabrication. The Tribunal has not given the applicant an opportunity in the section 424A letter to deal with the claim raised by the Appellant."

7 The first ground of appeal does not correspond with any of the grounds of the application to the court below and was not dealt with by Turner FM. It is without substance. The letter was not "generalised", but outlined the particular information that the Tribunal, at that time, considered to be reasons for affirming the decision of the Delegate (s 424A(1)(a)). It also explained to the appellant how that information was relevant to the Tribunal’s review (s 424A(1)(b)) and invited him to comment upon it (s 424A(1)(c)). The letter did not address the specifics of the claim that the appellant was involved in political activities. There was no need for it to do so. The claim was clearly made, and was addressed in the reasons of the Tribunal.

8 Again, the second ground of appeal does not correspond with any of the grounds taken below. Grounds 2 and 4 below raise the issue, but not in terms of breach of s 424A. The learned Federal Magistrate dealt with the grounds as framed. The Tribunal’s s 424A letter clearly gave the appellant an opportunity to comment on the issue by inviting him to respond as follows:

"Country information indicates that it is easy to obtain fake, fraudulent or bogus documents in Pakistan, and they are prevalent.

This information is relevant to the review because it may suggest that your documents are fake, fraudulent or bogus."

It appears from the Tribunal’s reasons that the issue was subsequently raised by the Tribunal at the hearing itself:

"The Tribunal indicated that country information indicated that it is easy to obtain fake, fraudulent or bogus documents in Pakistan and they are prevalent. The applicant stated that his documents were not false. They are genuine and from the court."

It is clear that the appellant was on notice of the Tribunal’s doubts as to the authenticity of his documents and that he was given an opportunity to deal with the issue. That being so, it is not necessary to consider whether s 424A was engaged in this respect.

9 The third ground of appeal was framed as follows:

"His Honour should have found that the Tribunal erred by not allowing the Appellant to explain the documents and rebut any inference of fabrication breaching section 425 of the Migration Act.

Particulars

The Tribunal has drawn an inference that the documents are fabricated yet the Appellant was not given opportunity to rebut this inference."

10 Section 425(1) of the Act, subject to the exceptions in subsection (2), requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is clear that the appellant was given such an invitation. Further, the appellant was given the opportunity to rebut the Tribunal’s inference that the documents were not authentic. (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.)

11 The Tribunal’s decision not to accept the appellant’s documents as a reliable corroboration of his claims was based in part on an inconsistency between those documents and his oral evidence. There is no evidence that the Tribunal alerted the appellant to this issue. Although not relied upon by the appellant, I raised that point with counsel for the respondent. I accept the submission that the Tribunal’s reasoning cannot be characterised as constituting "information" within the meaning of s 424A(1)(a) (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]). It was not obliged to notify the appellant in advance of its doubts arising from the inconsistencies.

12 The appeal is dismissed and the appellant is to pay the costs of the first respondent.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 7 December 2007

	The Appellant appeared in person
Counsel for the First Respondent:	Ms V McWilliam
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	15 August 2007
Date of Judgment:	7 December 2007