SZJOU & Anor v Minister for Immigration & Anor [2009] FMCA 24 (23 January 2009)

Last Updated: 23 January 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 24

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with statutory obligation to give information – where Tribunal heard oral evidence from applicant’s wife, who confirmed some aspects of husband’s evidence but was unable to provide details on other dispositive matters – whether this constituted an “omission” – whether omission nonetheless detrimental to applicant’s case – whether corroborative aspects of wife’s evidence became “information” in light of applicant’s subsequent denial – where Tribunal disavowed reliance on oral evidence of wife.

Migration Act 1958 (Cth), ss.424A, 424AA

SZJZB & Anor v Minister for Immigration [2008] FCA 1731 SZBYR & Anor v Minister for Immigration [2007] HCA 26 SZGSI v Minister for Immigration [2007] FCAFC 110 NBKS v Minister for Immigration [2006] FCAFC 174 MZXBQ v Minister for Immigration [2008] FCA 319

First Applicant:

SZJOU

Second Applicant:

SZJOV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2040 of 2008

Judgment of:

Raphael FM

Hearing date:

22 December 2008

Date of last submission:

22 December 2008

Delivered at:

Sydney

Delivered on:

23 January 2009

REPRESENTATION

Counsel for the Applicants:

Mr R Nair

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1) A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 24 June 2008 and handed down on 17 July 2007.
(2) A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
(3) The First Respondent to pay the Applicants’ cost assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2040 of 2008

SZJOU

First Applicant

SZJOV

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of India who arrived in Australia on 17 February 2006. They applied to the Department of Immigration & Citizenship for protection (Class XA) visas on 10 April 2006. On 13 June 2006 a delegate of the Minister refused to grant protection visas. The applicants sought review of the delegate’s decision and the Tribunal differently constituted affirmed the delegate’s decision on 8 September 2006. The applicants sought judicial review of the Tribunal’s decision and on 4 March 2008 the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. The second Tribunal held a hearing which was attended by both applicants on 14 May 2008. On 24 June 2008 the Tribunal determined to affirm the decision not to grant protection visas and handed that decision down on 17 July 2008.
2. The male applicant was the person who had substantive claims to be a refugee. The female applicant, his wife, completed Form D, an application form for a member of a family unit who has no claims of her own to be a refugee. I shall refer in these reasons to the applicant and the applicant’s wife for the sake of clarity.
3. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were set out in a document submitted with his protection visa application [CB 32]. The applicant was born and lived in Gujurat. He recalled an attack by a mob of “Muslim Fanatics” on a train on 27 February 2002 in which “a few of my family members and friends were also burnt alive to death”. He joined the militant ranks of the Sangh Parivar, a Hindu nationalist organisation and under its direction attacked Muslims. The applicant claimed that after a while he realised that what he was doing was wrong and he ceased taking part in these activities which aroused the ire of the party members who withdrew their protection from him so that he was open to physical abuse and persecution from elements of the Muslim population. At the hearing before the Tribunal the applicant told how after he had given up violent activities he remained as a lecturer for the VHP. He did not reduce his attendance at meetings until February 2005 when he stopped supporting VHP activities and stopped his lectures:
   • “He had another incident with the Muslims in November 2005. He was in Devgadh Baria. At that time there were riots there. He went out there. The Muslims came to his house in the evening. Then the owner of the house told him he had better leave the house as soon as possible because he did not want to take any risks. He was in a group of people. He was “saying some slogans” in the Hindu’s favour. In the evening they came to his house to kill him. These were different people. They could not find him. His landlord was a good person and he hid him. He denied that the first named applicant was in the house.” [CB 114]

Although this was not the most significant incident for the purposes of the applicant’s claim it is the significant incident for the purposes of this application for judicial review.

4. The applicant’s wife gave evidence:
   • “... They ran away from there to Devgadh Baria. When asked how they tried to kill the first named applicant she stated that she did not know. When asked whether the first named applicant had told her what had happened she stated he had not. They just left that place in fear. They were living in Piplag at the time. When asked whether they had any problems in Devgadh Baria she stated that she could not remember. The first named applicant was saying too much and he was a lecturer and the Muslims were against him. When asked whether there were any other incidents involving Muslims and the first named applicant being attacked when he went shopping she stated that she could not remember if something else happened. [CB 119]
5. After the applicant’s wife had given evidence the Tribunal asked the applicant if he wished to comment:
   • “[112] When asked whether he wished to make any comment about the evidence given by the second named applicant he stated that he did not know whether the Tribunal was aware of how a Gujurati woman can be. The second named applicant does not have much knowledge about the outside world. She has always been a housewife and has never worked. Some of the things that she said she really does not know about and does not have any interest in as a Gujarati woman. She is only interested in household chores.”
   • [113] The Tribunal pointed out to the first named applicant that the second named applicant had given evidence that she had lived with him at Devgadh Baria. She also gave evidence that she stayed at home when he went out. The Tribunal reminded the first named applicant of his evidence that Muslims came to his home and his landlord had to hide him. The Tribunal stated that it would expect that that was something the second named applicant would remember. He responded that she was not with him at that time. He lived at Devgadh Baria for a month. After two to three days he sent her away because it was a Muslim place. She did not mention that to the Tribunal. She lived at Vanthwali.” [CB 120]

I was provided with a copy of the transcript of the hearing before the Tribunal which sets out in full the conversation:

“T: Now you have heard the evidence that your wife has given, is there anything you want to say about the evidence she has just given?
A: I don’t think you will be knowing how our difficulty Indian women can be and then to how our Gujarat, these women can be. She don’t have much knowledge about the outside world because she have been always a housewife and she has never worked. Some of the things what she has said, it’s like she really don’t know and she don’t have interest as a Gujarati woman. She is only interested in household jobs.
T: You see this is the concern I have with the evidence that she has just given, she said she and you discussed things that happened in your lives. She lived with you when you were in Baria. She was at home when you went out. Now you have told me the Muslims came to your home and you had to hide and your landlord hid you. Now I would think that that is something she would remember.
A: But at that time she was not with me. I lived at Baria for a moment and after two, three days I sent her to Vanthwali because it is also a Muslim place and she didn’t mention it to you.
T: What she told me was when you lived in Baria she lived with you?
A: It’s good that she mentioned this much also. I also not remember so clearly but she came to Baria but she didn’t stay there for long.
T: What I am saying to you is that is not the evidence she gave. The question I asked her was did you stay in Baria, did you live in Baria with your husband and she said yes.
A: Yes, that’s true but I lived there for a moment but she didn’t live for a whole month with me.
T: Where did she live instead?
A: Vanthwali.
T: Is there anything else you want to tell me?
A: No.”

6. The Tribunal dealt with the evidence of the applicant’s wife in its findings and reasons:

“[138] The Tribunal has taken into consideration the evidence given by the second named applicant. During the course of her evidence the second named applicant repeated the claims that the first named applicant became a member of the VHP, that he was a lecturer, that he gave speeches against Muslims, that the business was burnt down, that the first named applicant was attacked in the shop and that Muslims were trying to kill him. However, when the Tribunal sought further information or details she responded that she could not remember or she was not sure or she did not know. She also stated that her mind was not working, that her “mind was very upset” and that she missed her children. She seemed focussed on obtaining a work permit so that she could work in Australia.
[139] When the first named applicant was asked whether he wished to comment on the evidence given by the second named applicant he stated that the second named applicant did not really know about some of the things she talked about and that she did not have any interest in them as a Gujarati woman. He stated that she is only interested in household chores. The Tribunal accepts the first named applicant’s statement that the second named applicant did not really know about some of the things she talked about. The Tribunal is of the view that the second named applicant is an unreliable witness and places little weight on her evidence.” [CB 125]

7. The Tribunal did not accept the applicant’s claims stating at [CB 126]:

“[146] When considering the evidence as a whole the Tribunal finds that there are a number of inconsistencies between the oral evidence given by the first named applicant at the first hearing and the second hearing as well as internal inconsistencies and changes in the oral evidence given by the first named applicant at the second hearing. In view of these findings and for the reasons referred to above, the Tribunal finds that the first named applicant is not a witness of truth and was prepared to fabricate his claims in relation to persecution to give himself the profile of a refugee.”

The Tribunal then found that the applicant did not have a well founded fear of persecution for a convention reason and upheld the original decision of the delegate.

8. When the case came before me a document entitled “Yet Further Amended Application” was filed in court. The “Yet Further Amended Grounds of Application” being:
   • “i) In addition to giving the Tribunal evidence in support of her husband’s claims, the wife provided the Tribunal with information that “she could not remember or she was unsure or that she did not know” details or further information regarding her husband’s claims. The Tribunal relied on this information to place little weight on the wife’s evidence which corroborated the applicant’s claims. (see CB 125). The wife also provided the Tribunal with information that suggested differences, inconsistencies and gaps with the evidence of the applicant. This information was of dispositive relevance to the husband’s claims and would be (and was) the reason or part of the reason for affirming the decision under review. This information included the wife’s evidence (as the Tribunal understood it to be) that she had lived at Devgadh Baria at the relevant time with the applicant, that is, as the Tribunal clearly understood, at the time when the Muslims came to harm him and when his landlord hid him.”
   • ii) The Tribunal did not ensure – pursuant to section 424AA – as far as was reasonably practicable that the husband understood the consequences of the above information being relied on by the Tribunal. The Tribunal did not advise the husband that he may seek additional time to comment on or respond to the information. The Tribunal did not consider if the husband reasonably needed additional time to comment on or respond to the information. The Tribunal did not adjourn the review so as to provide the husband with the additional time he reasonably needed to comment on or to respond to the information.
   • iii) The Tribunal was required – pursuant to section 424A – to give the husband clear particulars of the above information by one of the methods specified in section 441A, that is, in writing, unless the Tribunal gave the husband this information in accordance with section 424AA (which the Tribunal did not do). The Tribunal did not give the particulars of this information in accordance with section 424A.”
9. The applicant argues that from the evidence which the wife gave that she lived with her husband in Baria and that she could not remember the attacks upon him that he had described so clearly the Tribunal was entitled to draw a dispositive inference that the attacks did not occur and therefore the applicant’s claims of persecution were not well founded. He argued that the wife’s information went to a crucial claim not merely to the credibility of his evidence. Because of this it was information that should have been put to the applicant in accordance with the legislation. It is accepted that the evidence was put to him so that s.425 of the Migration Act 1958 (the “Act”) was satisfied; SZJZB & Anor v Minister for Immigration [2008] FCA 1731 at [7]. What is in issue in this case is whether the wife’s evidence constituted “information” which was required to be put to the applicant in the way specified by the legislation (s.424A or s.424AA).
10. The respondent argues that the wife’s evidence did not constitute “information”. It was evidence that she lived with her husband in Devgadh Baria and that in itself was not a dispositive matter. It did not contain in its own terms a rejection or undermining of the applicant’s claims. The respondent argues that the finding of the Tribunal was that the applicant’s evidence was inconsistent with previous evidence that he had given and the inconsistency with his wife’s evidence did not arise until he was questioned about her evidence and he said that she was not there all the time. That was inconsistent with his earlier evidence that they had lived in Devgadh Baria together.
11. There are then two separate pieces of “information” contained in the wife’s evidence relevant to this review. Though each was raised in argument, they have not been clearly distinguished. The first is the wife’s statement that she lived in Devgadh Baria with her husband. When given before the Tribunal, this evidence corroborated her husband’s earlier statement to the same effect. The information only became inconsistent with the husband’s evidence after he was questioned about it and said that she was not there all the time. The second is the wife’s statement that she could not recall any attacks against her husband despite claiming to have lived with him in Devgadh Baria when the attacks were said to have occurred. That is inconsistent with his evidence. Both pieces of information raise different issues and ought to be considered separately.
12. On its face the wife’s statement that she lived with her husband in Devgadh Baria does not contain in its own terms a rejection or undermining of the applicant’s claims. This is because the applicant himself had provided the same information to the Tribunal at the commencement of the hearing. The question is whether the applicant’s subsequent denial of that information changes the character of the wife’s evidence so that it can be said to undermine the applicant’s claims of persecution and be “information” for the purposes of s.424A or s.424AA of the Act.
13. In SZJZB the “information” in question concerned evidence given by the applicant’s wife that the applicant continued to live in the same city after being attacked there. The applicant himself had given this information at the commencement of the Tribunal hearing but had altered his story by the time his wife gave evidence. At first instance, the Federal Magistrate found that the wife’s evidence could not be said to undermine the applicant’s claims given that he had himself provided that same information. On appeal to the Federal Court, Jagot J at [24] found that in fact the wife’s evidence remained centrally relevant to the substance of the applicant’s claims to persecution despite the husband’s initial evidence to the same effect. As such it was information which ought to have been the subject of a s.424A letter.
14. It is not clear from the decision of Jagot J in SZJZB whether evidence which at the time of its delivery corroborates that of the applicant, becomes s.424A “information” in the event that the applicant later says something which conflicts with his or her earlier evidence. In the instant case the issue can be resolved without reaching a decision on that point. This is because even if the wife’s evidence that she lived with her husband in Devgadh Baria were accepted as being adverse to the applicant on account of his later denial, it could not be said to form the reason or part of the reason for affirming the decision under review. Whether or not the applicant and his wife lived together in a particular city is not centrally relevant to the substance of the applicant’s claims of persecution. Rather the wife’s evidence goes to the issue of the applicant’s credibility.
15. The second aspect of the wife’s evidence is that she “could not remember or she was not sure or she did not know” details of the alleged attacks against her husband. The relevant question is whether this kind of information constitutes a “rejection, denial or undermining” of the applicant’s claims: SZBYR & Anor v Minister for Immigration [2007] HCA 26 at [17]. The Minister argues that the wife’s responses constitute a “lack of information” or an “omission” which in itself cannot amount to a rejection or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations.
16. In SZGSI v Minister for Immigration [2007] FCAFC 110 at [43], Marshall J noted a line of authority indicating that an omission may constitute “information” under s.424A in certain circumstances. In NBKS v Minister for Immigration [2006] FCAFC 174 at [39], Weinberg J said:
    • “It seems to me that each case must depend upon its own particular circumstances. There is no reason in principle why an omission (which the Tribunal views as important, and which is plainly adverse to the applicant’s case) should be treated any differently, when it comes to s.424A, than a positive statement. That is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant’s case.”
17. In SZGSI the “information” in question concerned the inability of the Chairman of the applicant’s church to provide details of, inter alia, the applicant’s prior knowledge of Christianity. Evidence on this point had been provided to the Tribunal by the applicant. Since the Chairman could not necessarily be expected to know such details, his inability to provide those details “...did not support, or detract from, what the first appellant had put to the Tribunal”. Therefore, it could not form part of the reasons of the Tribunal for rejecting the review applications before it; SZGSI at [44]. By contrast, in the instant case, the wife’s evidence that she could not remember details of the attacks against her husband, offers implicit probative support for the positive assertion that the attacks on the applicant did not occur. This is because a person who had witnessed or been involved in such an attack would be expected to recall its occurrence, if not the details.
18. On the other hand, in its reasons the Tribunal said that it placed “little weight” on the wife’s evidence as it found her to be an unreliable witness [CB 125]. The applicant relied on comments in MZXBQ v Minister for Immigration [2008] FCA 319 to deny that the Tribunal’s statements should be taken into account when considering whether an obligation arose under s.424A. In that case, Heerey J noted at [28] that due to the conditional clause found in s.424A , “... subsequent use made by the Tribunal in its reasons... is no guide to whether the Tribunal at the earlier point in time should or should not have applied s.424A”.
19. Jagot J in SZJZB at [25] regarded the permissibility of examining the Tribunal’s reasons when determining the application of s.424A as unresolved in the light of the High Court’s decision in SZBYR. However, she warned that the “disavowal of reliance on the information is itself potentially ambiguous rather than determinative of the issue given the terms of s.424A.” In that case, the court disregarded the Tribunal’s claims to have not relied on the evidence in question. It found that the wife’s evidence, if true, would be the reason or part of the reason for affirming the decision under review. In other words, her evidence was centrally relevant to the substance of the applicant’s claims of persecution.
20. The same may be said in the instant case. The wife’s statement that she lived in Devgadh Baria with her husband and could not recall the alleged attacks against him is centrally relevant to the applicant’s claims of persecution. If the implication were accepted that the applicant’s wife could not recall the attacks because they did not occur this would undermine the applicant’s claims to have a well-founded fear of persecution. As such, this is “information” which was required to be put to the applicant in the way specified by s.424AA or failing that, s.424A.
21. Given the doubt as to the value of statements from the Tribunal that it has not taken particular matters into account the better course for a court of first instance is to put aside the Tribunal’s comment and look at the “information” objectively. If, as has been shown, the information could, at the stage it was given, undermine the applicant’s case it should be the subject of the procedural fairness provisions of the Division. I am of the view that the Tribunal failed to address this information as required by the Act and thereby fell into jurisdictional error. It has not been suggested that this is a case where I should exercise my discretion in favour of the Minister.
22. I will order that the applicant receive the benefit of the constitutional writs and that the respondent pay his costs assessed in the sum of $5,000.00

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 January 2009