SZLUW v Minister for Immigration & Anor [2009] FMCA 1169 (13 November 2009)

Last Updated: 25 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1169

MIGRATION – Review of RRT decision – applicant a citizen of India – whether Tribunal failed to provide applicant with particulars of information which would be the reason for affirming the decision – whether Tribunal decision affected by its incomprehension of the reason for remittal of the earlier Tribunal’s decision – whether Tribunal rejected corroborative evidence on the basis of credibility findings alone – reasoning in S20/2002 considered.

SZBBL v Minister for Immigration [2004] FCA 834 Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 SZDGC v Minister for Immigration [2008] FCA 1638 SZGYT v Minister for Immigration [2009] FCA 705 SZMSB v Minister for Immigration [2009] FCA 373

Applicant:

SZLUW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1682 of 2009

Judgment of:

Raphael FM

Hearing date:

13 November 2009

Date of Last Submission:

13 November 2009

Delivered at:

Sydney

Delivered on:

13 November 2009

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1682 of 2009

SZLUW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 16 April 2007. On 25 May 2007 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 6 August 2007 a delegate of the Minister refused to grant a protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal. On 19 November 2007 a Tribunal (T1) affirmed the delegate’s decision. The applicant sought review of T1’s decision from this Court and on 15 August 2008 the matter was remitted to be determined according to law. On 19 November 2008 the Tribunal, differently constituted, (T2) affirmed the delegate’s decision. That decision was itself brought to this Court and on 11 March 2009 it was set aside and the matter was again remitted to the Tribunal. These proceedings refer to the third Tribunal’s decision which was made on 15 July 2009 after the applicant attended two hearings before it. On 16 June 2009 the Tribunal handed down the decision which was to affirm the original delegate’s decision not to grant the protection visa.
2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations were those of political opinion and religion. The applicant told that he was a Muslim living in Tamil Nadu. His father had been a local politician in Chennai and had been a long term member of the DMK. In 1994 the DMK had, according to the applicant, been responsible for the death of a close friend of his father called Mr Elumalai and for the burning down of his father’s shop and the ransacking of the family home. The applicant told that notwithstanding these matters he joined the DMK after the TMMK, of which he had become a member, aligned itself with that party. The applicant said that in 1998 he had won a seat for the DMK in the local government elections.
3. The applicant told of several incidents of attacks upon him and the requirement for him to go into hiding for a considerable period after the death of Mr Elumalai until 2001. One of the applicant’s claims was that a Mr Selvakumar, a political opponent who the applicant defeated in the local government elections had sent goondas to his house to threaten him and to threaten that his daughter would be abducted. The applicant also claimed that he was the subject of attacks from the RSS, another political party, including one that occurred in 2005 in a shopping centre. The applicant told that he felt that he had to leave India because of these matters and that should he return he would continue to be attacked. The applicant also claimed that he was the subject of persecution because he was a Muslim and the Tribunal considered this claim both generally and in the context of the possibility of relocation.
4. This is an application seeking review of the decision of the third Tribunal and to the extent that the first and second Tribunals may have made errors of law, these are not strictly speaking relevant. The third Tribunal listened to the hearing tapes of both the first and second
   Tribunal hearings and confirmed that it believed that the précis of those hearings contained in the reasons for decision of those two Tribunals were accurate. At the commencement of its own reasons for decision the third Tribunal comments on the remittal. It says at [6] [CB 202] that:
   • “The basis of the latest remittal to the Tribunal is not entirely clear.”
5. And goes on to say:
   • “[7] ...Nonetheless, the Tribunal, as presently constituted, has attempted in the hearings conducted by it to give the applicant the opportunity to address not only the issues arising before it, but also issues which arose before T1 and T2.”
6. The Tribunal questioned the applicant about his story in the first hearing. It then invited him back for a second hearing for the purposes of putting to him its particular concerns:
   • “The Tribunal invited the applicant to a further hearing which was held on 3 June 2009. At that hearing, the Tribunal said that having considered what the applicant had told it at the last hearing, and after considering the evidence in the light of the evidence given to T1 and T2, it had formed the preliminary view that the applicant’s claims were not to be believed and so it was giving the applicant an opportunity to hear what the Tribunal’s particular concerns were in relation to the applicant’s credibility so that he might have an opportunity to deal with those concerns.” [49] [CB 219]
7. The Tribunal then commences at [50] [CB 219] to set out eight concerns that it had about the applicant’s evidence. Underneath each concern, the Tribunal sets out the applicant’s response. It then added two additional matters. The first was:
   • “[66] The Tribunal referred the applicant to the results of the 2009 national elections. In those elections, the MDMK-ADMK coalition had done badly, winning only 12 of the 40 Tamil Nadu seats while the DMK-Congress combine had won 28 of the seats. The MDMK leader, Vaiko, had lost his seat. The Tribunal put to the applicant that given these results, it was very hard to see why the DMK would have any concerns about the applicant if he were to return to Tamil Nadu. The Tribunal then put to the applicant what it describes as “country of origin information and relocation issues”, and these are set out in considerable detail [CB 221-222], including the applicant’s responses.”
8. At [96] [CB 231] the Tribunal commences giving its reasons why it rejects the applicant. It finds that he was not a member of the TMMK or the MDMK, nor does it accept that he stood for DMK in local government elections in 1998. It bases these findings upon the implausibility of the applicant standing for election for a party that had been responsible for the killing of his father’s close friend. It expresses concern about the applicant’s failure to provide certain important information in his original PVA and about the applicant’s failure to give information to T3 that it had given to earlier Tribunals. The Tribunal expressed concern about the vagueness of the applicant’s evidence concerning the attack on him at the shopping centre and the attack on him in the street. It found that it could not accept the applicant’s story as to why the DMK or its supporters would persecute him if he were to return to India and noted that his father, who was a long-time member of the DMK, managed to live peacefully in Chennai, notwithstanding the problems that his son alleged he was having.
9. At [103] [CB 233], the Tribunal says:
   • “Given that the Tribunal considers that there are good reasons to reject the applicant’s evidence on credibility grounds, the Tribunal gives no weight to the copies supplied to the Tribunal of what the applicant alleges are his membership cards of the TMMK and MDMK.”
10. Finally, the Tribunal makes this finding at [105] [CB 233]:
    • “The Tribunal further considers that the applicant and his family could reasonably access protection elsewhere in India. The applicant is a relatively young man and has the attributes, resources and capacity to settle elsewhere in India. The UK Home Office’s operational guidance note for India referred to above indicates that an internal relocation option exists for someone in the applicant’s situation. Relocation to the adjoining state of Kerala would be one option, as it is a state with a larger Muslim population than Tamil Nadu, albeit with a smaller Tamil speaking population. The Tribunal does not consider that the objections the applicant put to the Tribunal against relocation to Kerala are matters that make it unreasonable or impracticable for the applicant to seek refuge there.”
11. On 28 September 2009, the applicant filed an amended application with this Court. There were two grounds of application. The first was:
    • “The applicant submits that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error under section 424A of the Migration Act 1958 that the Tribunal did not give the applicant particulars of the information which is the reason or part of the reason to reject his claim.”
12. This ground is then particularised, but the particulars are all of findings that the Tribunal made. It would seem therefore that what the applicant is really asking for is for the Tribunal to provide him with a running commentary upon its thought processes or some form of preliminary indication of its proposed findings so that he can comment. This, of course, is not something that the Tribunal is obliged to do; SZBBL v Minister for Immigration [2004] FCA 834.
13. The second ground is:
    • “The applicant submits that the Tribunal made a jurisdictional error that the Tribunal did not consider the significant reason for the persecution, the discriminatory conduct, the financial hardship and the significant economic hardship.
    • Particulars:
    • The Tribunal appreciates that among some Muslims, job reservation for the Muslim community remains an issue in the state. However, the lack of Muslim job reservations does not amount to serious harm within the meaning of 91R(1)(b) and 91R(2), nor does it involve systematic and discriminatory conduct within the meaning of 91R(1)(c).”
14. The particulars are the finding which the Tribunal made. What it would appear the applicant is asking this Court to do is to disagree with that finding. That is a request for impermissible merits review as there is no suggestion that the Tribunal made the finding without evidence or that it was a claim that was not considered by it. The Tribunal most certainly did consider this claim, as it considered the applicant’s general claim to be at risk because of his religion. These grounds of review do not establish any jurisdictional error.
15. On 26 October 2009, the applicant filed a document entitled Applicant’s Submissions. Much of that document refers to the matters contained in the first ground of application and argue that the Tribunal did not give the applicant the opportunity to convince it that it should not make the findings it did about his political associations. These submissions add nothing to the value of the applicant’s claim. The applicant also made a point about the comments that T3 made about the earlier remittal. He did this in his oral submissions to me today as well. He seemed to be of the view that because the Tribunal had indicated that it could not understand why the remittal had taken place that it did not carry out its own responsibilities properly. I do not think that the one follows from the other, especially given the remarks made at [7] [CB 202] that I previously extracted. To my mind, this Tribunal made a very fair attempt to ensure that all issues dispositive to this review were considered by it. So it included those issues that were before T1 and T2. It went further, having come to some preliminary views, it actually held a hearing with the applicant to give him an opportunity to rebut them. The applicant attempted to do so but was not successful. This is purely a matter for the decision of the Tribunal and not for this Court.
16. There is one matter in the Tribunal’s decision record that gives me some concern and that is the extracted passage at [103] [CB 233] about the rejection of the possibly corroborative evidence of the applicant’s membership of the two political parties. I have previously expressed a view that Tribunals may be falling into a too casual approach to the decision of the High Court in Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. This is the case in which McHugh and Gummow JJ say at [49]:
    • “In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the Tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
17. Kirby J at [135] appears to have disagreed with the views expressed by their Honours. He said:
    • “Where, as here, the appellant sought to adduce independent evidence that corroborated and supported his claim of past persecution in material respects, it was the duty of the Tribunal properly to consider and form a view about such evidence before assessing the appellant’s credibility.”
18. Notwithstanding Kirby J’s views, those of McHugh and Gummow JJ have prevailed. But it is, in my view, prudent for Tribunals to bear in mind the views expressed by Finkelstein J in SZDGC v Minister for Immigration [2008] FCA 1638 which were cited positively in SZGYT v Minister for Immigration [2009] FCA 705 and SZMSB v Minister for Immigration [2009] FCA 373. His Honour said, at [23]:
    • “There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, McHugh and Gummow JJ said “it is not unknown for a party’s credibility to have been so weakened in cross-examination that the Tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.” That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’s credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard corroborative evidence.
    • [24] For example, in WAIJ v Minister for Immigration [2004] FCAFC 74, the appellant complained that the Tribunal failed to have regard to certain documents because the Tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said, at [27]:
      • Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonest or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49]. Obviously, to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. It will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance, the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.”
19. And at [27]:
    • “It is false reasoning to find that the corroborative evidence was not authentic because the Tribunal, without regard to that evidence, found the appellant to be dishonest. The Tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process, it might have found the documents not to be authentic but that would have needed to be for independent reasons unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category.”
20. Mr Markus, who appears for the Minister, argues that in this particular case the words utilised by the Tribunal could indicate that it did give some consideration to the value of the corroborative evidence independent of its finding concerning the applicant’s credibility. He notes that the membership cards that were produced were not originals but were copies and that is referred to by the Tribunal. He also notes that whilst the Tribunal does not say in terms that the applicant has lied, the fact is, that some of its findings could only indicate that. In particular, he refers to the finding at [99] [CB 232] concerning the applicant’s statement as to what he told T1. I think the matter is finely balanced. I do think it important that Tribunals do not utilise the decision in S20/2002 and some laissé passé to ignore corroborative evidence. But I am not prepared to make a finding that in this particular case a jurisdictional error occurred. In any event, for the reason given below, such a finding will have no utility.
21. In this case, the Tribunal has made an entirely independent conclusion that the applicant could relocate within India and, as such, did not have a well founded fear of persecution throughout his homeland. That independent finding means that he is not a person to whom Australia owes protection obligations and, therefore, whatever one may have thought about the other reasoning processes of the Tribunal (and I have come to the view that there was nothing unlawful about them) this finding still subsists. For that reason, the application must be dismissed. The applicant shall pay the respondent’s costs which I assess in the sum of $4,500.00

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 25 November 2009