SZDBF v Minister for Immigration & Anor [2008] FMCA 1379 (2 October 2008)

Last Updated: 4 November 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1379

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – applicant not believed – no reviewable error found – application dismissed.

Federal Court Rules Migration Act 1958 (Cth), ss.424A, 425

NAHI v Minister for Immigration [2004] FCAFC 10 SZANK v Minister for Immigration [2004] FCA 1478

Applicant:

SZDBF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1833 of 2008

Judgment of:

Driver FM

Hearing date:

2 October 2008

Delivered at:

Sydney

Delivered on:

2 October 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
(3) The date from which the appeal period shall run be fixed at 31 October 2008, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1833 of 2008

SZDBF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 19 June 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
2. The applicant is from India and had made claims of political persecution. There also appeared to be a religious component to his claims. The background to the applicant's protection visa claims and the Tribunal decision on them are conveniently summarised in written submissions filed on behalf of the Minister on 29 September 2008.
   I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 3 through to 11.6 of the Minister's written submissions:
   • The applicant is a 44 year old male, and a citizen of India. He arrived in Australia on 26 April 2003 and applied for a Protection (Class XA) visa on 23 May 2008[1]. The application was refused by the Minister's delegate on 8 September 2003[2]. The applicant applied to the Tribunal for review of the delegate's decision on 8 October 2003[3]. The Tribunal wrote to the applicant requesting that he provide additional information in support of his claims[4]. The applicant did not respond to the Tribunal's request for information and the Tribunal proceeded to make a decision affirming the delegate's decision to refuse the applicant a protection visa ("first Tribunal decision")[5].
   • The applicant sought judicial review of the first Tribunal decision. On 3 April 2006, the Federal Magistrates Court, by consent of the parties, made orders quashing the first Tribunal decision and remitted the application to the Tribunal for re-determination according to law[6].
   • The applicant attended a hearing before a second Tribunal on 7 June 2006 and was assisted by an interpreter in Malayalam. After the hearing, the Tribunal sent a letter dated 4 July 2006 to the applicant's authorised recipient (as identified in the Tribunal application[7]) inviting the applicant to comment on certain information set out in the letter ("s.424A letter")[8]. The Tribunal received a facsimile on 4 July 2006 from the applicant's agent indicating that he was no longer the authorised recipient of the applicant. The facsimile further advised that the agent had forwarded the s.424A letter to the applicant and would also forward a Change of Contact Details Form[9]. The Tribunal subsequently received a Change of Contact Details Form signed by the applicant and settling out his contact details[10]. However, the Tribunal did not re-send the s.424A letter to the new address. It did not receive a substantive response to the s.424A letter[11].
   • The Tribunal by a decision handed down on 15 August 2006[12], affirmed the delegate's decision to refuse the applicant a protection visa ("second Tribunal decision")[13]. By consent, this second Tribunal decision was also quashed and the matter remitted for reconsideration due to the Tribunal's failure to re-issue the s.424A letter, having been informed that the applicant had changed address.
   • Claims for protection visa
   • In its decision handed down on 19 June 2008 the present Tribunal conveniently summarised the applicant’s claims to a protection visa at [44] as follows:
     • The applicant claims that he was a member of the SJP for many years and in 1987 or 1988 he held the position of joint secretary with his local BJP. It is his claim that Muslim fundamentalists have targeted and harmed him in the past and will continue to do so, should he return to India. He claims that even though he lived in various places in India he was recognised and threatened at various times. He also claimed that Muslim extremists believed that he was involved in communal violence surrounding the Babri Mosque incident in 1992. The applicant claims that he cannot relocate to any area in India. He also claims that the police will refuse to protect him because he comes from a backward caste.
   • Tribunal decision
   • The Tribunal's decision sets out all the evidence: the applicant's claims made in his protection visa application (PVA), his oral evidence at the previous Tribunal hearing (the present Tribunal, having listened to the previous hearing tapes, found the summary of his evidence set out in the second Tribunal decision to be accurate and reproduced it) his oral evidence at the hearing before the present Tribunal, the information put to him in the s.424A invitation and the applicant's written response. The decision also sets out in detail the procedural history of the matter.
   • The Tribunal found that the applicant was an unreliable witness and did not accept any of his claims of past harm. It did not accept that the applicant had been targeted by Muslim fundamentalists because of his support for the BJP, and it did not accept that anyone had ever linked the applicant with the 1992 Babri Mosque incident or its aftermath.
   • At [46] of the decision the Tribunal set out its reasons for rejecting the applicant's claims. In particular, the Tribunal relied upon the following:
     • a) there was inconsistency in his evidence at his first hearing compared to the claims in his PVA as to when he became involved with the BJP;
     • b) despite having lived in Australia since 2003, the applicant had not obtained any documentary evidence to support his claim to membership of the BJP, particularly in view of his claim to have been joint secretary of his branch. Nor could the Tribunal find any reference to his name on the internet, which belied his claim to be well known to Muslims in Kerala state;
     • c) his oral evidence at his previous Tribunal hearing as to his duties and activities with the BJP was sparse and hesitant, which belied his claim to be joint secretary of his branch of the BJP;
     • d) despite previously having been asked for such evidence at his first Tribunal hearing, the applicant still had no documentary evidence to support his claim to have been hospitalised for one month due to an attack by Muslim "scoundrels" in a jeep, causing injury to his right foot. The Tribunal found that such evidence could have been obtained. Furthermore his evidence was inconsistent as to when the attack took place and as to other details;
     • e) another issue arising out of the alleged attack resulting in injury to his foot was his claim that two of his BJP colleagues were murdered. The applicant claimed to be unaware if there was any media coverage of the incident, which the Tribunal found surprising in view of the importance to him and his family of such an event. The Tribunal found his evidence about the incident to be vague, hesitant and unconvincing;
     • f) the applicant had claimed to have suffered injury during the communal violence in Marad in January 2002, yet he was unaware of the local features of Marad. He also appeared to change his evidence during the course of the second hearing as to when he became involved in the event;
     • g) in response to the applicant's claim that Muslim fanatics believed he was involved in the Babri Mosque incident the Tribunal pointed out he was in Malapurran, almost 2000 km away, at the time. The applicant replied that because his problems had commenced prior to that time, therefore he was suspected of being involved in the Babri Mosque incident. The Tribunal found this claim to be far fetched and unconvincing; and
     • h) the applicant had a passport issued in 2000, yet he made no attempt to leave India until 2003. The Tribunal found this behaviour inconsistent with his claim to fear serious harm or death from Muslim fanatics. It did not accept his explanation, that he thought things would get better in India, as plausible.
   • In light of the above, the Tribunal made the following findings:
     • a) the applicant was not involved in student politics, nor was he joint secretary of the Melmuri branch of the BJP;
     • b) he was not [actively] involved in any way with BJP or its activities (although the Tribunal accepted that the applicant supported the BJP);
     • c) he did not suffer the claimed incidents of harm, ie, he was not targeted by Muslim fanatics nor were his two colleagues murdered, nor did he spend time in hospital after sustaining injury at the hands of Muslim fanatics;
     • d) he was not targeted by Muslim fanatics because of his support of the BJP nor was he suspected of being involved in the Babri Mosque incident;
     • e) he was not the subject of threats nor did he suffer harm for religious or political reasons. As a consequence, the Tribunal was not satisfied that the police would not offer him protection because he was from a "backward caste"; and
     • f) there was no credible evidence that the applicant risks suffering serious harm in the reasonably foreseeable future if he returns to India.
3. These proceedings began with a show cause application filed on
   16 July 2008. The applicant now relies upon an amended application filed on 24 September 2008. The applicant also relies upon a short affidavit that accompanied his original application. I received that affidavit as a submission. I have before me as evidence the book of relevant documents filed on 28 August 2008.
4. I gave the applicant the opportunity to make oral submissions at the trial of the matter today. He told me that he had nothing to add to his amended application. He believes that he made a mistake in not submitting evidence to the Tribunal, in order to support his claims. The amended application contains several paragraphs. In those paragraphs the applicant takes issue with various aspects of the Tribunal's reasoning. As I explained to the applicant, he appears to attack the merits of the Tribunal decision. The merits of the Tribunal decision are beyond the scope of this proceeding.
5. There is no doubt that the Tribunal understood the task that it had to perform. The Tribunal considered the applicant's claims, but rejected them. The Tribunal met its obligation under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) to invite the applicant to a hearing. The hearing opportunity afforded the applicant was a real one. The Tribunal met, or possibly exceeded, any obligations it had under s.424A of the Migration Act. The procedure followed by the Tribunal was fair. I can discern in the Tribunal decision and in its process no jurisdictional error.
6. The grounds in the amended application are discussed in some detail and helpfully in the Minister's written submissions. I agree with those submissions and adopt them for the purposes of this judgment. Specifically, I adopt paragraphs 23 to 31 of the Minister's written submissions:
   • The amended application contains seven grounds. They do not appear to advance the grounds pleaded in the original application except to take further issue with the merits of the decision.
   • Ground 1
   • This ground merely recites a passage from the Tribunal's decision and does not identify any ground of review.
   • Grounds 2 and 3
   • These two grounds appear to be connected and should be read together.
   • Ground 2 is a passage from the decision wherein the Tribunal relied upon country information to find that in India there have been ongoing clashes between Hindus and Muslims. Ground 3 asserts that the applicant gave "adequate evidence ... that he was physically assaulted" but the Tribunal failed "to consider his genuine claims". There is no basis for the claim that the Tribunal failed to consider the applicant's claims of physical harm. The Tribunal expressly considered and rejected it. This complaint does no more than take issue with findings of fact and the merits of the Tribunal's decision. Furthermore, the Tribunal's acceptance that there are ongoing instances of clashes between Hindus and Muslims in India and that the applicant was a supporter of the BJP is in no way inconsistent with its rejection of the applicant's particular claims to harm.
   • Grounds 4 and 5
   • These two grounds appear to be connected and should be read together.
   • Ground 4 refers to information, allegedly from an Indian website "Indax.com", that not all Indian villages have access to the internet. This may also be a reference to the Tribunal's failure to find any mention of the applicant's name on the internet in connection with his claim to be joint secretary of his branch of the BJP and well known to Muslims in Kerala state (see paragraph 10.2 above). Ground 5 complains that the Tribunal failed to consider all possible country information and only considered country information that was adverse to the applicant. These two grounds together amount to a complaint about the Tribunal's choice of country information and an assertion that the Tribunal was "preoccupied and did not have a fresh look".
   • The complaint that the Tribunal preferred certain country information over other is again no more than a complaint against its factual findings. It was for the Tribunal to decide upon the country information and the weight to be given to it. As Hely J held in SZANK v Minister for Immigration [2004] FCA 1478 (special leave refused on 27 April 2005), at [16], “it was a matter of fact for the Tribunal to decide what weight should be given to country information as part of its fact-finding function. The question of the accuracy of the country information, and its relevance to a person in the position of the applicant, is one for the RRT, not the Court”. His Honour cited NAHI v Minister for Immigration [2004] FCAFC 10 at [11].
   • Grounds 6 and 7
   • These two grounds appear to be connected and should be read together.
   • Ground 6 does not identify any ground of review but merely complains that the Tribunal failed to find that the "applicants [sic] satisfy the four key elements [of the Refugees Convention]". Ground 7 asserts that the Tribunal's failure to so find was a "serious misdirection" and complains that the Tribunal denied the applicant "an opportunity to explain at this hearing". To the extent that this composite complaint can be understood, it appears to be a re-statement of the applicant's ground 1 in his original application, which is dealt with above (see paragraphs 17 to 20).
7. The Minister's solicitors have also taken the precaution of dealing with the grounds in the original show cause application. To the extent that those grounds might be considered to have some continuing relevance, I agree with and adopt for the purposes of this judgment, with any necessary amendments, paragraphs16 to 22 of the Minister's written submissions:
   • The original application contains two grounds.
   • Ground 1 - "serious misdirection" and bias
   • The first ground is a complaint that the Tribunal "misdirected" itself in relation to the applicant's response to a part of the s.424A invitation [the applicant refers to this part of the invitation as "point (3)"] which sets out apparent inconsistencies in the applicant's various accounts of his places of residence and employment. The exact meaning of the applicant's complaint is unclear, but ground 1 appears to complain that the Tribunal should have asked the applicant to explain the discrepancies at the second hearing, instead of putting the question in the s.424A letter. The applicant appears to assert that this demonstrates that the Tribunal was prejudiced against the applicant's claims.
   • There is no substance in this complaint, nor has the applicant identified any jurisdictional error. The previous Tribunal had already put the applicant on notice that the discrepancies in his evidence as to where he lived and worked was an issue that reflected upon his credibility and it was open to the present Tribunal to so find.
   • Furthermore, ultimately the Tribunal did not rely upon these particular discrepancies and inconsistencies in reaching its adverse credit findings. The quoted passage from the Tribunal's decision at [47] which forms the particulars to ground 1, which is alleged to demonstrate error, is simply the Tribunal's finding that it did not find the applicant's explanation for the discrepancies (which he provided in his written response to the s.424A letter) very convincing. The discrepancies were not, however, dispositive of the issues arising in relation to the decision under review.
   • Nor is there any substance in the claim of bias, that the Tribunal was "prejudiced" against the applicant's claims. The Tribunal's frank scepticism of the applicant's explanation for the inconsistencies in his evidence was entirely reasonable.
   • Ground 2 - "error of law"
   • Ground 2 complains that the Tribunal erred in law (no particulars are provided) by making the following finding:
     • There is no credible evidence upon which the Tribunal could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to India.
   • No error of law, let alone jurisdictional error is identified in the above complaint. In substance, this ground seeks to take issue with findings of fact and the merits of the Tribunal's decision. For the reasons set out by the Tribunal and noted above, the finding that there was no basis to find that the applicant was at risk of serious harm in India was plainly open to it.
8. I find that the decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
9. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. That is a party/party assessment. Scale costs in this instance would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
10. Should written reasons be required in this matter, they will not be available until November due to my absence on leave. In the circumstances, and to ensure that the applicant is not disadvantaged, I propose to extend the appeal period pursuant to the Federal Court Rules (“the Federal Court Rules”). I will order that the date from which the appeal period shall run be fixed at 31 October 2008, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 3 November 2008

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[1] Relevant Documents (“RD”) 1
[2] RD 2
[3] RD 3
[4] RD 4
[5] RD 5
[6] RD 6
[7] RD 7
[8] RD 8
[9] RD9
[10] RD 10
[11] RD 11
[12] RD 12
[13] RD 13