SZNOP v Minister for Immigration & Anor [2009] FMCA 1269 (18 December 2009)

Last Updated: 21 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1269

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNOP”.

Migration Act 1958 (Cth), ss.91X, 424AA

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 68 ALR 407 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NADR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 SZTGC v Minister for Immigration & Citizenship [2008] FCA 1638

Applicant:

SZNOP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1102 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

3 September 2009

Delivered at:

Sydney

Delivered on:

18 December 2009

REPRESENTATION

Solicitors for the Applicant:

The applicant appeared in person with the assistance of a Malayalam interpreter

Counsel for the Respondents:

Ms N Johnson (solicitor)

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

(1) The application filed on 6 May 2009 is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1102 of 2009

SZNOP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant was born on 30 May 1972 in Paippad, Trivandrum, India. On his original application, he claims that he completed a Bachelor degree at the University of Kerala and was employed by a reporter by Deepika, a Malayalam newspaper in Trivandrum between 2000 and 2008. The applicant claims that as a result of his publication of a book of stories titled Nervarayil Ninnum alpam charinju under his pen name ‘Kavalayoor Swathi’ in January 2000, the Bharatiya Janatha Party (BJP) harassed the applicant at his home and caused problems. The book of stories contained criticisms of the BJP and the Sree Rama, the Hindu god.
2. The applicant claims that the BJP killed his brother and so the applicant departed for Thiruvalla where he stayed with one of his sisters for three years until 26 May 2004.
3. The applicant claims that the BJP published his photograph and news in the newspapers, filed a case against him in the District Court, burned his stories, looted his money and gold from his home and he lost his ring finger on his right hand.
4. The applicant sold their house but only received 250,000 rupees and therefore could not afford to buy another house. The applicant’s wife is a computer teacher and the applicant alleges that she had not been able to find work because of this problem. Furthermore, the applicant claims that he was prevented from attending his sister’s wedding. The applicant sought protection in Australia on advice from the Bishop’s House where Father Fredy Solomon suggested he attend World Youth Day.
5. The applicant arrived in Australia in July 2008 and applied for a Protection (Class XA) visa on 20 August 2008. On 12 November 2008 a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the applicant was notified of this decision by way of letter on 12 November 2008. The applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 25 November 2008 and the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa on 13 April 2009. It is this decision, RRT case number 0808084, a decision of Giles Short that is the subject of these proceedings.
6. A Court Book (“CB”) prepared by the first respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court.
7. The application for judicial review filed on 6 May 2009 contains no grounds of review however under the heading “Orders sought by the applicant”, the applicant states “RRT officer refused my Protection visa please review the decision”. This appears to be the applicant’s sole ground of review.
8. At the first court date directions hearing on 27 May 2009 the applicant indicated that he wished to participate in the panel advice scheme and his details were referred to the Court registry to arrange this review. A panel member was allocated to the applicant who contacted him and requested him to attend a conference. However the applicant failed to attend and the panel advisor forwarded written advice. At the first court date directions hearing, I granted the applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 3 August 2009. Despite having received written advice from the panel advisor prior to this date this order was not complied with.

The Tribunal decision

9. In the absence of any pleaded grounds of review, written or oral submissions I have paid particular attention to the contents of the Tribunal decision in order to review that decision independently to determine whether any jurisdictional error is evident. I am assisted in this approach by the detailed written submissions prepared by Ms N Johnson, solicitor for the Minister.
10. Three days prior to the Tribunal hearing the applicant provided a medical certificate from Dr Akram Maussad in support of his claims. The certificate indicated that he had been receiving medical treatment between 16 and 19 January 2009 and included a letter of referral to Dr Grant Walker for the treatment of his “carpal tunnel symptoms” (CB 104-105).
11. The applicant attended the Tribunal hearing on 19 January 2009 and gave evidence that he feared harm because he was a Christian who had published insulting stories about the BJP (CB 207 at [38]). The Tribunal put to the applicant the various concerns it had about his oral and documentary evidence and sought his comment (CB 211 at [56]-[67]).
12. The Tribunal put to the applicant an official notice in the Kerala Gazette that the Tribunal had sourced independently which stated that the applicant’s brother had died during a work accident as opposed to being murdered by the BJP as the applicant had claimed. In respect to this issue the Tribunal complied with its obligations under s.424AA of the Act (CB 211 at [57]).
13. The member gave the applicant clear particulars of the official notice contained in the gazette explaining how the information was relevant to the review and the consequences of the information being relied upon by the Tribunal as required by s.424AA(a) and s.424AA(b)(i) (CB 211 at [56]-[57] and CB 212 at [62]). The Tribunal invited the applicant to comment on the information as required by s.424AA(b)(ii) and advised the applicant that he may seek additional time to comment on or respond to the information pursuant to s.424AA(b)(iii) (CB 212 at [62] and [65]). The applicant elected to respond immediately to the Tribunal’s query (CB 212 at [63]) and responded in a general way to all of the concerns put to him stating that everything he told the Tribunal was the truth (CB 212 at [63] and CB 213 at [67]). During the hearing the applicant raised a new claim that he had “some memory problems” as a result of the attack on him in November 2007 (CB 208 at [44]). He indicated that he had provided a psychologist’s report to the delegate that indicated he suffered from post traumatic stress, anxiety and depression (CB 205 at [28]).
14. After the Tribunal hearing the applicant submitted a treatment certificate from a medical officer in Trivandrum indicating that he had been admitted to hospital on 3 November 2007 with “deep wounds and fractures” and was discharged on 27 November 2007 (CB 116) which resulted in the applicant being unable to sleep. A letter from the Transcultural Mental Health Centre in Parramatta confirmed his appointment to see a consultant (CB 117-119).
15. Another document is a typed of version of a certificate from Dr Sabeer A Rasheed of Kumarapuram, India stating that he had treated the applicant for injuries including “wound on the top of the right hand of ring finger, deep wounds: lower part of left abdomen, upper part of left nipple and under the right eye and left collar bown was also fractured” (CB 170). Two undated letters from Dr Kifah Al Shadidi at the Granville Bridge Medical Centre both confirming that the applicant had suffered injuries described in the letter from Dr Shabir A Rashid (CB 174-176).
16. In addition to the medical certificates the applicant also filed the following documents:
    1. letter from the Archbishop of Trivandrum previously submitted to the Department (CB 115);
    2. a copy of his brother’s death certificate and a record of proceedings before a magistrate intervention in relation to an application made by the applicant’s mother to register his brother’s death (CB 120-122);
    100. various pieces of independent country information on Christians in Kerala and human rights in India (CB 123-164 and CB 177-193);
    4. a copy of a “Case Diary” dated 15 March 2009 that related to a complaint made by the applicant’s wife that she had been attacked by BJP and RSS (CB 168);
    5. a letter from Sister Rosemerlin, Mother Supirior Missionaries of Charity, stating the applicant’s wife and child were being threatened by political parties and were staying with her (CB 169);
    6. a letter from Father E Wilfred Education Director of Trivandrum Latin Archdiocese stating that the applicant faced problems from “anti social people” and “Hindu fundamentalists due to his evangilization work” (CB 171).
17. The Tribunal decision dated 13 April 2009 affirmed the delegate’s decision under review. In reaching its decision the Tribunal clearly set out the issues that it addressed in its consideration. The pinnacle psychologist report provided by the treatment and rehabilitation of torture and trauma survivors was accepted by the Tribunal and acknowledged that the applicant was suffering the conditions diagnosed. However, the Tribunal concluded that despite these ailments it considered that the applicant was able to participate effectively in the hearing before it (CB 216 at [77]-[78]).
18. I agree with the written submissions of Ms Johnson that this finding was open to the Tribunal to make because the Tribunal is a sole arbitrator of the facts in weighing up the evidence. In making an adverse credibility finding the Tribunal had taken into account the psychologist report and that the applicant suffered “a loss of concentration and a depressed mood” (CB 217). Consequently, the Tribunal had not placed weight on minor inconsistencies in the applicant’s account about what happened in Kerala (CB 217 at [82]). The existence of the psychologist’s report and the information it contained placed an obligation on the Tribunal to consider the question of whether or not the applicant was prevented from participating in the hearing in a “real and meaningful” sense. This obligation is addressed in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 per Gray, Cooper and Sellway JJ at [33]-[37] where their Honours stated:
    • [33] Pursuant to s425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31].
    • [34] In Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; (2001) 187 ALR 348 the Full Court of this Court considered the nature of the obligation imposed on the Tribunal by s425 of the Act. The question before the Court in that case was whether, if the Tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s425 to invite the applicant to appear again and give evidence and present arguments to that new member. Their Honours held that no such requirement was imposed by s425 and went on to make the following observations, at [44]:
    • 'The right to a hearing is clearly an important and central right in the merits review system established by Pt7 of the Act. This has been acknowledged in other contexts: see for example Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162; (1999) 91 FCR 248 at [13]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [20]. The express qualifications in s425 of the right to be invited to appear concern a limited set of circumstances. The right to be invited exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right. The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the parliament's intention that, at least generally, there should be a right to be invited to appear before the tribunal.
    • Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the minister's submissions that the applicant's right to appear before the tribunal was diminished to a merely formal right to be invited by the changes made to s425 by the Amendment Act. As we have noted, the Amendment Act provided a new right to present argument before the tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the explanatory memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.'
    • [35] S425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s425 of the Act a necessary condition and element of a fair hearing by the Tribunal.
    • [36] It is clear that s425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.
    • [37] On the other hand, it is also clear that s425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
19. The Tribunal addressed the issue of the applicant’s participation in the following way:
    • I accept that the applicant’s symptoms include a loss of concentration and a depressed view but, having taken account of the applicant’s medical condition as diagnosed by the psychologist, I considered that the applicant was able to participate effectively in the hearing before the Tribunal. I note that the applicant has been given ample time after the hearing to address the problems with his evidence which I raised with him at the hearing. (CB 216)

I am satisfied that the Tribunal member has addressed the issue as to whether the applicant could participate in the hearing in a “real and meaningful sense” and that no breach of s.425 is apparent.

20. The Tribunal rejected all of the applicant’s claims to fear harm in India. It noted numerous inconsistencies in his written and oral evidence put to the Department and his evidence at the Tribunal hearing (CB 218 at [86]-[87]). There were inconsistencies between his oral evidence and the documentary evidence that he had submitted in support of his claims (CB 218 at [88] to CB 220 at [96]). A number of the applicant’s claims were inconsistent with independent country information (CB 220 at [97] and CB 222 at [103]). A significant inconsistency existed being the applicant’s account of his brother’s death at the hands of the BJP and the information that the Tribunal had independently sourced that it was a result of an industrial accident (CB 217 at [83]-[85]).
21. On the basis of these inconsistencies in the documents provided by the applicant the Tribunal formed the view that they were not genuine (CB 217 at [85], CB 218 at [89], CB 219 at [91]). However the Tribunal acknowledged that other documents were genuine and relied on the inconsistencies between those documents and the applicant’s claims as the basis of rejection (CB 219 at [91]-[93], CB 220 at [96]). I agree with the submission made by Ms Johnson that the Tribunal did not simply reject these particular documents based on its adverse view of the applicant’s credibility (Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638). Rather the Tribunal member assessed the documents independently and relied upon identified inconsistencies and implausibilities in the documents to support its general adverse credibility finding. Care should be taken when assessing documents in these circumstances. The High Court addressed this in the decision in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs per McHugh and Gummow JJ at [49] where their Honours said:
    • [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. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
22. However, care should be exercised as indicated in the decision of SZTGC v Minister for Immigration & Citizenship [2008] FCA 1638 per Finkelstein J at [27] where His Honour said:
    • This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, 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 need to have been for independent reasons, unless the appellant’s evidence fell into the S 20/2002 category. It plainly did not fall into that category.
23. On a fair reading of the decision I am satisfied that the error identified in SZDGC has not occurred in this circumstance and that each document has been independently assessed.
24. In respect to other documents provided by the applicant after the Tribunal hearing the following documents:
    1. the case diary;
    2. the letter from Sister Rosemerlin; and
    100. the letter from Father E Wilfred

were rejected by the Tribunal because of the adverse view it had taken of the applicant’s credibility (CB 22 at [103], [105] and [106]). The approach taken by the Tribunal in respect of these documents is consistent with the High Court observations in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs supra at [12] where it was observed that it was 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”.

25. Due to the totality of inconsistencies in the applicant’s oral and documentary evidence, the Tribunal did not accept:
    1. that he was threatened by BJP and other extremist groups because of the stories he published in January and February 2000 (CB 221 at [100]);
    2. that his brother was killed by the BJP or that the post mortem certificate which the applicant produced in relation to the death that was genuine (CB 221 at [100]);
    100. that he spent his time between August 2001 and his departure from India in July 2008 outside Kerala despite maintaining his employment as a reporter at “Kerala Gazette”(CB 221 at [100]);
    4. that he had suffered injuries described in the certificate of Dr Ali Shadidi in the course of an attempt by BJP members to kill him on 3 November 2007 (CB 221 at [101]);
    5. that the applicant’s enemies published his photographs in all newspapers, filed a case against him or released notices against him containing strong warnings (CB 221 at [101]);
    6. that the applicant returned to Kerala in May 2008 to attend his sister’s wedding but was prevented by doing so by BJP members who had threatened to kill him(CB 221 at [100]);
    7. that he had reported his ill treatment at the hands of the BJP and RSS followers to police in May 2008 as indicated in a “Case Diary” report he produced or that his wife and child were threatened or attacked by BJP and RSS or other Hindu extreme groups since he left India (CB 221 at [102]-[103]); and
    8. that he was involved in preaching Christianity to Hindus who converted to Christianity as a result of his evangelism (CB 223 at [106])

It was for these reasons that the Tribunal did not accept that the applicant was a witness of truth.

26. The Tribunal concluded that the applicant had never been threatened, attacked or persecuted in India by reason of his imputed political opinion (as manifest in his short stories), or his religion nor would he face persecution on his return (CB 223 at [106]-[107]). I accept Ms Johnson’s submissions that the Tribunal’s adverse credibility finding was open to it as a finding of fact that falls exclusively within the jurisdiction of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281-282; NADR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 68 ALR 407 at [67].

Grounds

27. As indicated above the applicant has failed to plead any grounds of review. The application as it stands is no more than a disagreement with the factual finding of the Tribunal and in effect is a request for the Court to undertake an impermissible merits review of the Tribunal’s decision. Clearly a merits review is not available in this Court, see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (supra) per Brennan CJ, Toohey, McHugh and Gummow JJ at [31] where their Honours stated:
    • ...any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

In the absence of a more clearly stated claim without particulars it has to be assumed that the applicant in effect is requesting this Court to conduct a merits review. The merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the early decision. In a merits review a complete rehearsal of all the issues relevant to the application would be required.

Conclusion

28. The applicant in these proceedings was a self represented litigant who appeared with the assistance of a Malayalam interpreter. I believe that the applicant has been provided with the every opportunity available in the circumstances to present his review application. However it is clear that he has no understanding of the purpose of these proceedings that he brought before this Court. As indicated above the applicant was provided with the opportunity to attend a conference with a panel advisor provided under the Court assistance scheme but he failed to attend the conference. Although he was provided with written advice there was no attempt to file an amended application from any of the information provided by the panel advisor or from any other source.
29. The only evidence before the Court is the Court Book and particularly the decision record. I am satisfied that the analysis of the decision submitted by Ms Johnson satisfactorily addresses the issue of whether the Tribunal has undertaken its role without jurisdictional error. On a fair reading of the decision it is not apparent that any other grounds of review exist which would suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently the application should be dismissed.
30. I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 18 December 2009