FEDERAL COURT OF AUSTRALIA SZKAK v Minister for Immigration and Citizenship [2007] FCA 2030 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants S134/2002 (2003) 195 ALR 1 SZKAK v Minister for Immigration and Anor [2007] FMCA 1078 SZKAK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1484 OF 2007 BUCHANAN J 20 DECEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1484 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKAK Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 20 DECEMBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. 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 1484 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKAK Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 20 DECEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of India. He arrived in Australia on 18 May 2006. He applied for a protection (Class XA) visa on 13 June 2006. On 8 July 2006 a delegate of the Minister refused to grant the visa. On 4 August 2006 the appellant applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. In a decision handed down on 19 December 2006 the RRT affirmed the delegate's decision not to grant a protection visa. It did so, in large measure, because it found that the appellant was not a reliable witness. It said, for example: 'The applicant was unable to provide a coherent account of the aims and strategies of the Mann Party to which he claimed that his father (for 10 years) and he (for two years) belonged. He was unable to give anything but very vague information about politics in India or in his own state. Such a lack of interest or knowledge would not be expected of a political activist, as the applicant claims to be.' and: 'The applicant appeared to be unaware of national elections being held in India in 2004, and when pressed on this matter said that he did not vote in them because he was in detention at the time. However, he later claimed to have been detained in 2004 only overnight. Similarly, while the applicant claimed to have been arrested, detained and mistreated, his evidence on these matters was very vague. While he claimed to have been arrested and detained on three occasions in 2003, he could not remember when he was first arrested. While he claimed to have been beaten with batons in 2003, he said that there were no visible injuries as a result of the beatings, and he did not need medical attention. The applicant claimed in his Protection Visa application that he was beaten and tortured on several occasions in 2004, after his arrest and detention in March 2004. However, at the Tribunal hearing he said that after the March 2004 incident, he sat some college exams and then went into hiding.' and: 'The applicant has claimed that in 2004 he fled from Punjab to the state of Uttar Pradesh and remained in hiding because he was sought by the authorities. The Tribunal rejects these claims. The applicant was unable to say where he lived in Uttar Pradesh, or what he did for a substantial period (at least seven months) before he came to Australia in May 2006. At the Tribunal hearing, the applicant said that after he was arrested and held overnight in March 2004, he sat for some of his exams about June 2004. He did not claim to have been arrested after March 2004, so for a period of many months he was living in Punjab without incident, prior to going to Uttar Pradesh and hiding there for 7 to 12 months, as he claimed on different occasions. The Tribunal does not accept that the applicant was in hiding in either Uttar Pradesh or in Punjab between March 2004 and May 2006, or indeed at any time. It does not accept the claim made in the applicant's Protection Visa application that the police raided a house in which he was living in Uttar Pradesh.' 2 The RRT's conclusion on the appellant's claims to have been persecuted in the past was stated in the following way: 'The Tribunal finds that the applicant has not been persecuted in the past in India for reasons of his political opinion, real or imputed, or for any other reason.' 3 As to the future the Tribunal concluded as follows: 'The applicant, while he may be a supporter of Sikh separatism, has never been, in the view of the Tribunal as outlined above, a political activist. He was never involved in any form of political extremism. Furthermore, the Tribunal has found that the applicant was never seriously harmed because of his father's political opinion in the past. In the light of these circumstances, the Tribunal is not satisfied that there is a real chance that he will be persecuted in a Convention sense, if he returns to India in the foreseeable future. It is therefore not satisfied that the applicant has a well-founded fear of persecution in India.' 4 The appellant sought judicial review of the RRT decision in the Federal Magistrates Court of Australia ('FMCA'). That application was rejected (SZKAK v Minister for Immigration and Anor [2007] FMCA 1078). Although, as originally filed and as later amended the appellant originally relied upon a number of grounds in the application for review, by the time of the hearing before the FMCA the grounds of challenge had been reduced to a single issue. It is the first of two grounds relied upon in this Court in the appeal against the decision of the FMCA which the appellant filed on 31 July 2007. It is convenient, therefore, to discuss it in the context of the appeal to this Court. 5 The grounds of appeal relied upon in this Court are as follows: '1. The Federal Magistrate erred by not finding that the Refugee Review Tribunal made jurisdictional error in that it took irrelevant matters into consideration while making a decision. (Reference was made in the particulars to this ground to paras [19], [20], [30], [31] and [32] of the judgment under appeal which concerned a letter discussed hereunder.) 2. Federal Magistrate erred by not finding that the Refugee Review Tribunal made jurisdictional error as it failed to consider whether the applicant would fall under particular social group.' 6 The first ground of appeal in this Court (which was the only ground pursued before the FMCA) concerns the fact that the RRT received an anonymous letter containing allegations which were adverse to the appellant. The letter was mentioned in the RRT decision but no reference was made to it in that part of the decision which set out the RRT's findings and reasons. In its decision the RRT referred to it as follows: 'On 29 September 2006, the Tribunal received a letter stating that the applicant "is a serial liar and thief. In Punjab he commit to many crime. One time he shot village people. Then kill 2 people. His refugee stay should be refused." The letter was signed, dated 14 September 2006, and an address was given. The Tribunal wrote to the writer of the letter on 3 October 2006, asking him to contact the Tribunal in order to give evidence. The letter was returned to the Tribunal unclaimed and no further information was received.' 7 It is clear from this extract that the actual terms of the letter were quoted. When the appellant appeared before the Tribunal on 3 October 2006 he was informed that the letter had been received accusing him of being a liar and a thief and of having killed people in India. The transcript of the hearing records: 'MS LEHY: Mr …, a letter has been received by the tribunal from a person who says the following; the person says you are a serial liar and a thief, and in Punjab you committed many crimes, that you shot village people, that you killed two people. Do you have any comment to make? INTERPRETER: I didn't commit any murders. MS LEHY: All right. I'm going to close the hearing now, but what I'll do is, I'll write to you after this hearing, and because there were a number of differences between what you said in your protection visa application and what you've said at this hearing I'll ask you to comment on those differences as well. INTERPRETER: Right. MS LEHY: I'll also put in this letter the substance of these accusations that I've just put to you that we received in a letter. INTERPRETER: Is that letter against me? MS LEHY: The letter has said that you are a liar and a thief and that you killed people in India. INTERPRETER: Yeah, but that is about me? MS LEHY: Yes. INTERPRETER: What was written – mentioned in the letter, again? MS LEHY: I just read it out to you. INTERPRETER: I haven't done anything. MS LEHY: All right. You'll have a chance to comment on that, but I am obliged to tell you that the tribunal has received a letter making these accusations against you. INTERPRETER: Right.' 8 That day the RRT wrote to the appellant drawing a number of matters to his attention including: 'At the Tribunal hearing held on 3 October 2006, you were given information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information you were given is as follows: … 2) That the Tribunal has received a letter from a person who makes the following allegations: that you are a serial liar and thief; that you committed many crimes in Punjab; that you shot village people and killed two people. As explained at the hearing, this information is relevant because it suggests that you have not been truthful in your claims, you are not a credible witness, and that your account may have been exaggerated or fabricated to support your claim for a protection Visa.' 9 He was invited to comment. His response was: '2. I'm not a serial liar or thief. I have not committed any crimes in Punjab. I have not shot at village people or killed two people. I want to know who write that letter and give me copy of that letter. I'm a religiously minded person who have not hurt anybody. The letter allegations are false. You say the information in that letter is relevant, I say that information is a lie and false. I'm a law abiding person. THE ALLEGATIONS ARE FALSE". 3. I have been honest in my claims and told you at my hearing what I can remember. I have not exaggerated or fabricated my claims for a protection visa. I value my honesty.' 10 The appellant did not make any written submissions in support of his appeal. The only oral submissions which he made at the hearing of the appeal were to complain that no copy of the letter was provided to him and that he wished to know the name of the person who had sent the letter. 11 In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 ('VEAL') the High Court gave consideration to whether the RRT was obliged to inform an applicant for review of the existence and contents of letters of this kind. It decided that the requirements of procedural fairness oblige the RRT to provide such information although it was not necessary to disclose the identity of the author or any information which may reveal the author's identity. The Court said (at [7]): '[7] In the appeal to this court, the appellant and the minister treated the determinative question as being whether procedural fairness required the tribunal to inform the appellant of the existence of the letter, or its contents, before the tribunal decided to affirm the refusal to grant the appellant a protection visa. That question, framed as it is by reference to common law principles of procedural fairness rather than by reference to the application of particular provisions of the Act, should be answered "yes". It was right for the tribunal not to have provided a copy of the letter to the appellant and not to have disclosed to the appellant any information that may have revealed the identity of its author. Before reaching its decision, however, the tribunal should have told the appellant the substance of the allegations made in the letter.' (emphasis added) and: [28] The appellant submitted that procedural fairness further required that he be given the letter because, if he did not know who had written the letter, one obvious form of answer to the allegations made in it would be denied to him. He could not say that the author of the letter was not to be believed. That is, he could not attack the credibility of the informer unless he knew who the informer was. [29] So much may readily be accepted. But it by no means follows that the tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality". …' 12 These requirements were observed in the present case by the RRT. 13 The first ground of appeal, in any event, depends upon the appellant making good the proposition that the RRT took the contents of the anonymous letter into account when it made its decision. There is no indication in the decision itself that that is so. It was not referred to at all in the reasons given for affirming the decision of the delegate. The appellant suggests that the letter may have had a subconscious effect. An argument of this kind was rejected in VEAL (see at [19]). It can have no better result in the present case. The first ground of appeal should be rejected. 14 The second ground of appeal suggests that the RRT had an independent obligation to pursue a matter which the appellant himself had not relied upon. Nothing was said about this ground at the hearing of the appeal. This ground was not raised before the FMCA. Clearly no error can be suggested in the decision of the Federal Magistrate by reason of the fact that she did not deal with the issue. In any event the allegation of jurisdictional error by the RRT is misconceived. The RRT dealt with the case on the basis which was advanced to it. It was not obliged to deal with the matter on some other basis which was not advanced (see Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [31] – [32] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). 15 No error has been shown in the decision of the Federal Magistrate which is under appeal. No jurisdictional error has been shown in either the decision made by, or the processes followed by, the RRT. The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 20 December 2007 The Appellant: The appellant was self represented Counsel for the Respondent: J Mitchell Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 28 November 2007 Date of Judgment: 20 December 2007