SZNPU v Minister for Immigration and Citizenship [2010] FCA 129 (24 February 2010)

Last Updated: 1 March 2010

FEDERAL COURT OF AUSTRALIA

SZNPU v Minister for Immigration and Citizenship [2010] FCA 129

Citation:		SZNPU v Minister for Immigration and Citizenship [2010] FCA 129
Appeal from:		SZNPU v Minister for Immigration and Anor [2009] FMCA 963
Parties:		SZNPU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1188 of 2009
Judge:		BUCHANAN J
Date of judgment:		24 February 2010
Legislation:		Migration Act 1958 (Cth) ss 422B, 424AA, 425
Cases cited:		SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZNPU v Minister for Immigration and Anor [2009] FMCA 963
Date of hearing:	10 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	19
Counsel for the Appellant:	Ms T. Baw
Solicitor for the Appellant:	Sarom Solicitors
Counsel for the Respondents:	Mr P. Reynolds
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1188 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BUCHANAN J
DATE OF ORDER:	24 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1188 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNPU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	BUCHANAN J
DATE:	24 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of India who arrived in Australia on 9 September 2008. He applied for a protection visa on 8 October 2008. The application was supported by a lengthy statement setting out the appellant’s claims and reasons why a protection visa should be granted to him. The application for a protection visa was rejected by the delegate on 22 December 2008. On 21 January 2009 the appellant applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. The RRT held a hearing, to which the appellant was invited, on 1 April 2009. On 23 April 2009 the RRT affirmed the decision of the delegate not to grant the appellant a protection visa.
2. Doubt about the appellant’s credibility commenced with the terms of the statement which he had attached to his protection visa application. The decision of the RRT referred to this issue in the following way:
   27. Asked how he had prepared his protection visa application and the attached statement the Applicant said his habit was to keep a diary in which he recorded the incidents which had happened to him in India. He had two room mates who helped him with his application and one of these, a person from Hyderabad named Harish who was studying to be a chef, prepared the statement as he explained it to him. Nobody else had helped him with the application form or the attachment. Noting that the typed attachment of twenty-two pages was expressed in perfect English, revealed no typographical errors and suggested a familiarity with Australian immigration law I asked how his friend Harish could have prepared such a document. He said he had explained everything to Harish. I repeated the question and he said Harish had lived in Australia for five years and was very well educated, speaking English as well as a local person. Asked how Harish came by his knowledge of migration law he said Harish asked him what sort of document he needed and said he could produce it. Harish had put in a lot of effort to do so but he had not paid him.
       
   28. The Applicant confirmed that he currently had a migration agent but said this agent had not helped with the protection visa application. I put to him that the statement gave every impression of having been prepared by a professional migration agent. He said he was telling the truth.
       
   29. The Applicant said he had been able to read the application form and the attached statement after Harish had finished writing them out in English. He understood everything that had been claimed and everything was true. He did not wish to change anything he had claimed.
3. In its findings and reasons the RRT referred again to its doubts about the appellant’s credibility:
   83. The Applicant proved to be a generally unimpressive witness at the Tribunal hearing. His evidence was notably vague on many points and his responses appeared evasive when he was invited to comment on inconsistencies and implausibilities in his account. His alleged experiences in areas such as his surreptitious attendance at a Christian church, his involvement in preaching missions in distant villages, his love affair with a Christian girl and the various episodes in which he was attacked and beaten could all reasonably be expected to have been important and memorable life experiences for him. As such it would be reasonable to expect him to be able to recount these incidents in some circumstantial detail when asked about them. He did not do so, however, and his responses at the hearing gave no indication that they proceeded from any direct or authentic personal experience of the dramatic incidents he claims. I find that this raises doubts about the general credibility of his claims.
       
   84. I have considered whether these aspects of the Applicant’s oral evidence might be explained by the traumatic nature of the harm he claims to have suffered on a [sic] many occasions in India. In his protection visa application statement he claims to have suffered depression and to have been advised by a doctor to leave India in order to avoid a nervous breakdown. There is no substantiation for this claim, however, and nothing to indicate that the Applicant has sought professional help for depression or any related condition in Australia. He does not claim that he is presently suffering from any physical, psychological or emotional difficulties and, apart from a medical certificate said to have been issued by a hospital in Bangalore in 2008 (considered further below) there is nothing in the information before the Tribunal to indicate that he has ever received medical treatment for any reason. The Applicant remained composed and articulate throughout the hearing and I am not satisfied that he was suffering from any complaint which prevented him from participating effectively and articulating his claims fully.
   85. The Applicant showed only a partial familiarity with the lengthy statement of claims attached to his protection visa application and there were significant aspects of it (such as the claim that he feared harm as a member of a particular social group, the claim that he would be harmed because of his political activities and the claim that Hindus would harm him as a perceived Muslim) which seemed to be quite new to him. Having considered these responses and the nature of the statement itself I am not satisfied it is credible that it was prepared with the help of the Applicant’s two room mates, the principal of whom was a student chef from India. I consider it more likely that the document was prepared by a professional migration agent, despite the Applicant’s disavowals when this suggestion was put to him at the hearing. I find that the Applicant’s unfamiliarity with important aspects of the document raises further doubts about the reliability of his evidence.
4. The RRT gave specific attention to allegations that the appellant had been harmed in India for various reasons, including his religious beliefs and his political opinion. The RRT said:
   110. The Applicant claims to have suffered serious physical harm in India at the hands of his family members, Muslims from his mosque, other Muslims in his area including members of a merchants association, members of political parties, members of a criminal organization named the Tanveer Gang and Hindu extremist groups. At the hearing he claimed that the reason why all these people had harmed him was that he was seen to have converted from Islam to Christianity and that he had been involved in evangelising activities among both Hindus and Muslims.
        
   111. As I am not satisfied that the Applicant ever involved himself in the Christian religion in India or that he was ever imputed with converting to Christianity it follows that I am not satisfied he was ever harmed for such a reason. I am similarly not satisfied that he was ever harmed because of a perception that he was a Muslim or because of his race, his membership of a particular social group or his political opinion.
        
   112. In this context I have considered the document submitted by the Applicant which is said to be an undated medical certificate issued by the Assai Hospital in Bangalore relating to unspecified treatment given to the Applicant from 15 to 19 June 2008 for unspecified ‘severe injuries’. As put to him at the hearing there are features of this document – spelling errors in the letterhead and the notable vagueness of the description of his injuries in an official certificate said to have been signed by a medical doctor – which raise doubts as to its authenticity. Taken together with the independent country information about the availability of the document fraud in India I am not satisfied that any weight can be placed on this document as evidence that the Applicant suffered harm in India.
        
   113. While I accept that the Applicant’s alleged love affair with a Christian girl, and the harm he claims to have suffered as a result, does not necessarily relate to his claim that he himself had converted (or largely converted) to Christianity I am not satisfied that his account of this incident at the hearing, in particular his efforts to trace his girlfriend, was credible. I am not satisfied that such a love affair ever occurred and I am not satisfied that the Applicant was ever harmed for such a reason.
        

and then summarised its findings as follows:

114. In the light of all the information before the Tribunal I am not satisfied that the Applicant ever suffered harm in India because of his real or perceived religion or his political opinion. He does not now claim to have suffered any harm because of his race (properly understood) or membership of a particular social group, and I am not satisfied that he did in fact suffer harm for such reasons. I am not satisfied there is a real chance he would suffer serious harm for any of these reasons in future. He does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal.
     
115. I am not satisfied that the Applicant has a well-founded fear of persecution because of his race, his religion, his membership of a particular social group, his political opinion or any other Convention reason should he return to India, now or in the reasonably foreseeable future and I am not satisfied that he is a refugee.
     
5. On 19 May 2009 the appellant made an application to the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the decision of the RRT. The application was dismissed on 2 October 2009 (SZNPU v Minister for Immigration and Anor [2009] FMCA 963). At the hearing before the FMCA the case for the appellant (who was legally represented) proceeded upon an allegation that the RRT had committed jurisdictional error by failing to comply with the provisions of s 424AA of the Migration Act 1958 (Cth) (“the Act”). The specific requirement with which, it was alleged, the RRT had failed to comply was that the appellant had been given insufficient time to respond to information put to him by the RRT. In argument before the FMCA various examples were given of the “information” in respect of which counsel submitted the applicant required further time to respond. The FMCA decided that each of the examples was not “information” in the relevant sense but was rather a disclosure by the RRT to the appellant of doubts it had about the veracity of his claims.
6. In accordance with authority such doubts are not “information” for the purposes of s 424AA of the [2007] HCA 26; Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]).
7. The FMCA refused a late application by counsel for the appellant to rely on s 425 of the Act (which obliges the RRT to provide applicants for review with an opportunity to give evidence and make submissions at a hearing in connection with an application before it). However the FMCA made it clear that there was, in its view, no failure to comply with the requirements of s 425 in any event.
8. The grounds of appeal to this Court were refocussed. The grounds were initially expressed as follows:
   1. The Refugee Review Tribunal breached s.425 and 422B(3) of the Migration Act 1958 (Cth), in that it failed to provide the appellant procedural fairness when it refused the appellant’s application for an adjournment to address issues it had identified as being issues critical to it’s [sic] decision.
      
   2. In the alternative, in outlining its doubts or reasoning process to the appellant and providing the appellant the option to seek an adjournment to address those matters, the Tribunal was adopting a procedure not covered by Division 4 of Part 7 of the Migration Act (Cth) 1958. In so doing, the Tribunal failed to provide the appellant procedural fairness when it refused the appellant’s application for an adjournment.
9. In written submissions filed shortly before the appeal was heard, and in oral submissions, only the first of these grounds was pressed. Other arguments relied upon before the FMCA, and rejected, have not been renewed. In substance the argument advanced in the written submissions was that the hearing conducted by the RRT was not “fair and just” because the RRT failed to allow the appellant more time to respond to its concerns. The formulation relied upon was derived from a combination of ss 422B(3) and 425(1) of the Act which governed the proceedings before the RRT. They provide:

422B(3) In applying this Division, the Tribunal must act in a way that is fair and just.

and:

425(1) 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.

10. At the hearing of the appeal the argument was put in alternative ways by counsel for the appellant. She submitted that the RRT did not ensure that the appellant understood that he could have more time to respond to concerns expressed by the RRT at the hearing before it, that the RRT did not consider whether the appellant, in substance, asked for an adjournment and that the RRT disregarded sufficiently clear indications from the appellant that he did want an adjournment.
11. Counsel for the Minister opposed the appellant being allowed to raise these matters on the appeal. However, the present is not a case where no effort was made to rely on the ground in the earlier proceedings before the FMCA. Such an attempt was made and formally refused. In my view, as the issue is whether jurisdictional error has occurred and as the respondent has had a full opportunity to respond, it is better in this case at least to deal with the point.
12. None of the arguments put on behalf of the appellant satisfactorily identified the source of any obligation in the RRT to take any of the steps suggested to be necessary. I am satisfied that, in any event, none of the complaints are made out on the facts.
13. The appellant’s complaints arise from an exchange between the RRT and the appellant at the end of the hearing. The exchange was:

MR MULLIN: ... Now, as I say, I have no more questions, but I did want to say something to you and ask you to comment; that is that, on the basis of everything that you’ve told me and all the information that’s in front of the tribunal, I have to say that I have some doubts about the accuracy of your claims. In particular, I have doubts about your claim that you were involved with the Christian church when you were in India.

I have doubts that you participated in Christian activities such as going out to remote areas with preachers and other Christian friends to convert people, and I have doubts that you were attending church. I have doubts that your beliefs changed so that you were 95% Christian while you were in India. Now, apart from that, I also have some doubts about your claim that you joined a political party, Janata Dal, and that you were an active member in Janata Dal. First of all, can I just ask that you – I’m sorry, there is just one other thing I need to say. I also have doubts that you ever suffered harm for those reasons while you were in India. Okay. Now, first of all, could I just ask, do you understand what I’ve said about those things?

INTERPRETER [Appellant]: Yes.

MR MULLIN: All right. Okay. I want to explain why that’s important. First of all, let me say that I haven’t made up my mind about any of this, and I don’t believe these - I don’t believe that these things are true or that they’re not true. It’s just that I have doubts about them on the basis of the information. So I have reached no decision about any of that. But the information is important, because if I believe that you weren’t a Christian or that you didn’t involve yourself in Christian activity in India, and that you were never harmed for that reason and that you also didn’t belong to a political party and you never - you were never harmed for that reason, that would lead me to believe that if you went back to India you wouldn’t suffer any harm for those reasons.

If I believed that you wouldn’t suffer harm for those reasons if you went back to India that would lead me to believe that you are not at risk of persecution, that you are not a refugee, and that the decision of the delegates to refuse to grant you a protection visa should be affirmed. We can go on and discuss this in a minute. But, first of all, I just want to ask you do you understand why that information is important for the decision that I have to take in your case?

INTERPRETER [Appellant]: Whatever I’ve told you is just the truth here.

MR MULLIN: We’ll get on and talk about that in a minute, [the appellant]. We can talk about that in a minute. But I just want to make sure in my own mind that you understand what I’ve said and why it’s important.

INTERPRETER [Appellant]: Yes.

MR MULLIN: All right. Okay. Now, what I’d like to do is give you an opportunity to comment on that or respond to it in any way you like. Now, the choice is up to you. I mean, you can decide you don’t want to respond to it at all if you don’t want to. I’m sorry, I’ll just go on and tell you about the alternatives: or you can decide you want to respond right now, or you could decide you’d like to respond at a later meeting, a later session of this hearing, or you could decide that you might like to respond in writing, maybe in conjunction with your migration adviser and with the CD of the hearing. If you needed more time to do that, we can talk about how much more time. So it’s up to you. If you want to think about it for a little bit, that’s fine.

INTERPRETER [Appellant]: What you have said I didn’t understand.

MR MULLIN: I’m sorry. Okay.

[THE APPELLANT]: No, I want to stop that where you told me just - - -

MR MULLIN: Well, what I’m trying to explain to you is that you can respond or comment on those things that I told you in any way you like. If you want to do it, you can do it right now, that’s fine.

INTERPRETER [Appellant]: For example, what we are talking about?

MR MULLIN: Well, what we’re talking about is the doubts that I have about the accuracy of the things you’ve told me about being a Christian or being involved in Christian activity in India, being harmed for that reason, and being involved in a party.

INTERPRETER [Appellant]: Whatever I’ve said is the truth. Whatever you recommend I will do that. I’m working for a church, and you should believe in that. I can’t bring a certificate for you for about my belief. If you need I can get a letter from India from my church, and I can hand that in.

MR MULLIN: I can’t tell you what to provide or not.

INTERPRETER [Appellant]: Because now I am not in contact with anybody in India. I don’t even ring there.

MR MULLIN: You don’t even ring your Christian friends?

INTERPRETER [Appellant]: Because if I ring, there will be other issues, and I don’t even speak to my father, because my father has rung me a couple of times, but I haven’t rung him, because if I ring him at home my brothers will create problems at home.

INTERPRETER: Sorry, Member, I have to go, because I have to be in Burwood at 2 o’clock.

MR MULLIN: My goodness gracious. Okay. Look, just one more thing I need to say. I’m going to call the hearing officer to come in. One more thing I need to say – the other thing I need to tell you, [the appellant], is regarding your church activity in Australia. If I believe that you’ve done that simply to strengthen your claim to be a refugee, then the law says that I have to ignore that conduct when I come to look at your claims.

INTERPRETER [Appellant]: I’m not doing it because of that.

MR MULLIN: Right. Okay.

INTERPRETER [Appellant]: I like my country, but I only lodged this application for refugee because my life was in danger, because my heart doesn’t allow me to do it other ways.

MR MULLIN: Right. Thanks for that, [appellant]. Is there anything you want to add that we haven’t already talked about?

INTERPRETER [Appellant]: No.

MR MULLIN: Okay. All right. Thanks very much indeed for attending the tribunal hearing today, [the appellant]. I am going to consider all this information very carefully, and I will make a decision about whether or not I believe you are a refugee.

INTERPRETER [Appellant]: If you have any doubt, you can ask me to come back again, and I will try to clear that doubt.

MR MULLIN: Well, I’m – are you asking for another hearing?

INTERPRETER [Appellant]: Anything you want to find out on my life you can check with my lawyer or myself.

MR MULLIN: Yes. Okay.

THE APPELLANT: I want to request that.

MR MULLIN: I will make a decision on the information that’s in front of me. Okay. All right. Once again, thank you very much indeed, [the appellant], for attending the tribunal and cooperating with the work of the tribunal. If I cold express the tribunal’s thanks to our interpreter for his work today. Thank you very much, and my apologies, Mr Interpreter.

INTERPRETER: That’s all right. Thanks very much.

MR MULLIN: Thank you very much indeed.

APPELLANT: Thank you.

14. In my view, this exchange, read in full and in context, did not demonstrate any unwillingness by the RRT to permit the appellant an opportunity to respond to the concerns it had expressed, although the RRT certainly appeared to resist suggestions that it should initiate further enquiries.
15. The appellant was informed in plain terms about the matters which concerned the RRT and it was made clear that he could have a further opportunity to respond if he wished. In my view, there is no reason to think he misunderstood and no reason to think he asked for an opportunity to actually provide more information on his own initiative. No further opportunity was sought, or additional information in fact provided, in the three weeks between the hearing and the decision of the RRT.
16. There were exchanges at the beginning of the hearing that are also relevant. Early in the hearing the following occurred:

MR MULLIN: It’s also obviously important to answer carefully, and that means that if you don’t understand a question I ask, or you don’t understand any part of a question, say so straightaway and we’ll go back and sort out the confusion. Now, it may happen as we go through the hearing that I’ll discuss with you information that the tribunal has that would be a reason for affirming the decision of the delegate not to grant you a protection visa. If that does happen, I will explain the information to you carefully so that you can understand it. I will also explain to you carefully why that information is important for the decision I have to take in your case. It would obviously be very important for you to understand the information and why it is important.

If that does happen, I will invite you to comment on the information, or respond to it in any way you like. For instance, you could respond straightaway, or at an adjourned session of the hearing, or possibly in writing. If you needed more time to do that, we could talk about how much more time might be necessary. Then at the end of the hearing, I will give you an opportunity to raise any other matter you want to raise; that is, things that are relevant to the case, and that we haven’t already discussed previously. I think we should be able to get through the hearing in about 2 and a half hours, maybe 3 hours, but if we do need to take a bit more time, that shouldn’t be a problem. Let me just check. Mr Interpreter, do you have any other engagements today?

INTERPRETER: Yes, Member. I have another job at 2 o’clock.

MR MULLIN: Yes, I think we should be pretty right. Thank you. Now, we have been using our interpreter for 15 to 20 minutes. [Appellant], are you having any trouble understanding him?

INTERPRETER [Appellant]: No.

MR MULLIN: All right, good. If you do have trouble at any time understanding the interpreter, please say so straightaway, [appellant], and we’ll stop and we’ll sort it out.

INTERPRETER [Appellant]: That’s fine.

MR MULLIN: Okay. Mr Interpreter, how about you? Are you having any trouble understanding - - -

INTERPRETER: No, Member. No, that’s fine.

MR MULLIN: No, all right. Again, if there’s a problem, please let me know.

INTERPRETER: Thank you.

MR MULLIN: You are interpreting, for the record, between the Urdu and English languages?

INTERPRETER: Yes, member.

MR MULLIN: Yes, good. All right. Before we begin, [the appellant], are there any questions of any kind that you want to ask about anything I have said?

INTERPRETER [Appellant]: No.

17. The following exchange, shortly thereafter, is also relevant:

MR MULLIN: ... I understand you speak English very well, [appellant], probably better than I do, but I think because sometimes immigration matters can be a little bit complicated, and they can use their own special terms, it’s probably better if we continue to use our interpreter. Is that okay with you?

INTERPRETER [Appellant]: That’s fine.

MR MULLIN: Okay.

18. In my view, as I have already said, none of the appellant’s complaints is made out on the facts. It has not been established that he misunderstood the options presented to him. The better view is that there is no reason to suppose he did not. He did not, in substance or in any fashion, ask for an adjournment or a further hearing. Not only was an adjournment not refused, the RRT was at pains to indicate that it would have been granted if it was sought.

19. There was no error in the conclusions of the FMCA. The appeal will be dismissed. It is appropriate to dismiss it with costs.
    

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 24 February 2010