SZIAZ v Minister for Immigration and Citizenship [2007] FCA 1145

FEDERAL COURT OF AUSTRALIA

SZIAZ v Minister for Immigration and Citizenship [2007] FCA 1145 SZIAZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 533 OF 2007

LINDGREN J

30 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 533 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIAZ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J DATE OF ORDER: 30 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be added as second respondent. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs of the appeal. 4. The costs referred to in Order 3 above be fixed at the sum of $2,300. 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 533 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIAZ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 30 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia given on 9 March 2007: SZIAZ v Minister for Immigration & Anor [2007] FMCA 240. That Court dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal's decision was made on 8 December 2005 and handed down on 20 December 2005. The Tribunal had affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) not to grant a protection visa to the appellant. 2 The appellant is a citizen of India who arrived in Australia on 17 August 2005. On 27 September 2005 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (now the Department of Immigration and Citizenship). The Delegate refused to grant the visa on 25 October 2005. 3 The appellant speaks Tamil and is of Tamil ethnicity. He has a wife and son who remain in India. The appellant claims that in 1995, when he was working part-time as a cook in restaurants in Southern India, he became a member of the Chennai Hotel Workers' Union and participated in Union activities. In his application for the Protection visa he claimed to fear persecution by reason of his membership of the People's Art and Literature Society (or Association) (PALS or PALA) which supports the Communist Party of India (Marxist-Leninist) (CPIML). 4 He claimed in a statutory declaration attached to his visa application that PALS was an organisation that opposed corruption and evil in society and believed that it was only through revolution that equality could be achieved. He asserted that for this reason the policy of PALS was to oppose elections. He asserted in the statutory declaration that members of PALS believed that in India politicians were thieves who got elected, made money, and only came back to their electorates prior to the next election. He claimed that he joined PALS in 1997 and was involved, on its behalf, in street campaigns and the collection of donations. 5 He claimed that PALS was supported by CPIML and that he was himself also an activist for the CPIML, for which activity he was paid a small amount. He complained that the police filed cases against him because of his involvement in anti-government activities, as a result of which he was gaoled, and in gaol was denied food and beaten by other prisoners. He claimed that he was detained by the police on a number of occasions for participating in political demonstrations. The appellant claimed that many court cases were brought against him and that some were still pending. He claimed that he was politically active, and in 1999, had been taken into preventive detention when political leaders visited the area where he lived. According to his claims, he participated in many political demonstrations and protests and was arrested and assaulted by police. 6 He said that he married in February 2001, his wife also being a member of PALS. He said that in November 2001 he and his wife were attending demonstrations in front of the American Embassy in Chennai when he was arrested, then tortured and detained for six months, after which he was released on condition that he report to the police station every morning and evening. 7 Following that incident, according to the appellant's claims, he and his wife travelled to another region of India, but in 2003, the police in that area suspected that he was part of the "People's War Group" and handed him back to the police in the Chennai region, from which he had come, where he was imprisoned in the "Madras Central" gaol for more than nine months and then released on bail. 8 The appellant also claimed that the police harassed his family because of his activities, and that if he were to return to India now he would be arrested on the cases pending against him, and on new ones that would be fabricated against him. 9 At the hearing before the Tribunal, the appellant asserted that the police regarded him as a terrorist. He also claimed to have been arrested and detained in July 2000 and stabbed when he was campaigning in October 2000. These were two new claims made for the first time at the hearing before the Tribunal. The arrest and detention in July 2000 was said to have been at the city of Thiruchchi where, it was alleged, he and others were brainwashing students. The incident of October 2000 was, as described by the appellant, that he and others were campaigning to the farmers in Thaujaur when problems erupted "between them and us", and the appellant was stabbed in the rib and left arm, as a result of which he was treated in the Thaujaur Government Hospital over a period of 10 days. 10 The Tribunal found that the appellant was not a credible witness and rejected all of his claims of past political involvement and harm. The Tribunal rejected his explanation for not having previously raised the two new claims that he had made at the hearing. The appellant's explanation was poor memory, but the Tribunal found that the two new claims were manufactured. 11 A particular reason why the Tribunal found the appellant not to be a credible witness related to a trip that he made to Malaysia and Singapore. At the hearing before the Tribunal, he said that he travelled to Malaysia in April 2005 for one and a half days and then on to Singapore for one night. He said that the trip had been arranged by his uncle because the appellant's life was in danger and there were problems with the police in India. Asked why he stayed only for one and a half days, he replied that when he went to Malaysia some friends in the neighbouring house were arrested by the Malaysian police for residing illegally in Malaysia. The friends told the appellant that if he wanted to live in Malaysia, he would have to do so illegally, and that if he was caught he would be gaoled and returned to India where the police would be even angrier with him because he had attempted to escape from India. He said that it was because of this that he decided to return to India. 12 The Tribunal asked him why, if this was so, he decided to travel to Singapore before returning to India and he offered the explanation that if he had returned to India directly, the authorities there may have asked him why he did not travel to Singapore when he had a visa to do so. The Tribunal observed that the total duration of the appellant's visas for Malaysia and Singapore was one month, yet the appellant agreed that his absence was only for one and a half days (and a night). The appellant said he was not aware of the total potential length of his stay in Malaysia and Singapore until he arrived in Malaysia, and that his uncle had told him that he could stay there for three to four years according to the way in which the visas were arranged. 13 The Tribunal asked him why he would return after only one and a half days, and he replied that there was no one in Malaysia to help him, and his friends were working each day earning money and were prepared to look after him only for a day or two. He said that if he had remained, he would have been forced to work and look after himself, then added that the people were not actually his friends but were known to the agent who had arranged his trip. 14 The Tribunal found it simply not plausible that a man aged 28, who had fled from India, where he had served several terms in gaol, been beaten and stabbed, and had outstanding charges pending against him, would return to that country after only one and a half days (and one night), when there was no immediate danger to him overseas and he had 28 days or so left on his visa, for no other reason than that he could not look after himself. The Tribunal observed that, according to the appellant's logic, a longer stay in Malaysia or Singapore would have allowed him some time for respite and also time for the police in India to forget about him. 15 There were other findings in addition to the one just mentioned on the basis of which the Tribunal found that the appellant was not a credible witness and rejected all of his claims. 16 The Tribunal wrote two letters to the appellant prior to the hearing – one pursuant to s 424 of the Migration Act 1958 (Cth) (the Act) and the other pursuant to s 424A of the Act. The s 424 letter requested additional information and the s 424A letter identified information that might form part of the reason for affirming the decision under review, explaining its relevance and inviting the appellant to comment upon it. 17 In his amended application before the Federal Magistrates Court, the appellant complained that: (1) the Tribunal rejected his claims on the basis that documents were not produced to support his allegation of court proceedings against him in India; and (2) the alleged failure of the Tribunal to consider the plight of PALS members in India. 18 The Federal Magistrates Court also addressed the new claims that the appellant made at the hearing before the Tribunal and the claim he made by reference to s 424A of the Act. Her Honour Emmett FM dealt comprehensively with the appellant's complaints, but found none of them substantiated. 19 The grounds of appeal are stated in the notice of appeal to this Court as follows: 1. The appellant appeals from the whole of judgment of the single Judge of the Federal Magistrates Court by the FM Emmett given on 9th March 2007 at Sydney Registry. File No. SYG 45 of 2006, publication name SZIAZ. 2. The single Judge of the Federal Magistrates Court in his [sic] Honour's judgement delivered on the 9th March 2007 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the Judiciary Act 1903 (Cth). 3. The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). 4. Recent High Court judgment: Plaintiff S157/2002 Commonwealth of Australia [2003] HCA 1 [sic – (2003) 211 CLR 476; [2003] HCA 2]. 20 The appellant has not made any written submissions to this Court in support of his appeal. Given the opportunity to say anything in support of his appeal before the Court this morning, the appellant said that: · what he had previously said was true; · he had not been asked to supply any documents; · his life was in danger and that was why he was before the Court; · if he could go back to India, he could get documents. 21 The learned Federal Magistrate rejected both of the complaints referred to at [17] above for reasons that she gave. 22 Her Honour also rejected for reasons she gave, the complaint that the Tribunal had failed to comply with s 424A of the Act. At the time of her Honour's decision, the High Court had not decided SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Paragraphs [15]–[22] of the reasons for decision of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in that case are the most recent main authoritative exposition of the requirements of s 424A. There is no basis to suggest a failure to comply with the section, as explained by their Honours, in the present case. 23 The complaint made orally in Court this morning that the appellant had not been requested to supply any documents is, frankly, absurd. The reference is to the Tribunal's noting that the appellant had not produced to the Tribunal court documents supporting his allegation that court proceedings had been brought against him in India. In his visa application, the appellant wrote, inter alia, "Court documents" in answer to a direction that he list documents he would be providing to the Department later. In the Delegate's reasons, the Delegate noted that the appellant had said he would provide certain documents but had failed to do so up to the date of the Delegate's decision which was a month after the date of the visa application and two months after the appellant's arrival in Australia. The appellant must be taken to have read those reasons. In para 1 of the s 424 letter, the Tribunal requested the appellant to provide it with, inter alia, "court documents". In para 1 of the s 424A letter, the Tribunal referred to the appellant's statement in his visa application that he would provide, inter alia, "court documents". In that letter the Tribunal also advised that the appellant's failure to produce such documents to it may lead to the drawing of an adverse inference that the documents did not exist. 24 The Tribunal rejected the explanation given by the appellant on the hearing before the Tribunal for his non-production of the documents. 25 It is plainly untrue to say, as the appellant has said to this Court today, that he was not asked to produce documents. 26 The notice of appeal also refers to Muin v Refugee Review Tribunal (2002) 190 ALR 601, but the facts of that case were quite different from those of the present case. 27 There is no ground shown for thinking that the Tribunal's decision was infected by jurisdictional error. It follows that that decision was a privative clause decision and that the present appeal should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.