SZIIM v Minister for Immigration & Anor [2009] FMCA 539 (1 June 2009)

Last Updated: 12 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 539

MIGRATION – RRT decision – Indian applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 424AA(b)(iii)

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46

Applicant:

SZIIM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 239 of 2009

Judgment of:

Smith FM

Hearing date:

1 June 2009

Delivered at:

Sydney

Delivered on:

1 June 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms V McWilliam

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $4,800.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 239 of 2009

SZIIM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant arrived in Australia in July 2005. On 8 August 2005 he applied for a protection visa. Brief insertions in the application form explained why he feared to return to India. The applicant said that his grandfather was a “famous leader of Indian Congres (I) Party”, and he became involved in student politics in that party.
2. The applicant’s involvement started in 1988, and this produced “anger for some ‘BJP’ supporters”, who threatened him. The applicant referred to three specific incidents. The first was in January 2000 when “they first attacked into my house. I was escaped”. The second was in February 2001 when “these people again attacked to me and some of our party members. This time one of our party member was killed by these terrorists. But I was so lucky that, I again survived by their notorious attack. Although I was severely injured on that attack. Actually, it was a terrible attack and I lost one of my left hand finger”. The third incident occurred in January 2005, but was not explained by the applicant. The applicant claimed to have a fear that he would be targeted and tortured by the opposition party, authority or supporters if he returned to India.
3. No further details or corroborative evidence was provided to the Department of Immigration, and a delegate refused the application on 15 September 2005. The delegate said there were a number of factors casting serious doubt on the credibility of the applicant’s claimed fear. He did not accept that the applicant was of interest to the authorities nor that he would be denied protection in India.
4. On appeal, the applicant presented a statement to the Tribunal on 24 November 2005. This gave some details about his claimed involvement in the Congress (I) Party, and he claimed to have worked for the party in State and national elections between 2000 and 2005. No further details of attacks on him were given, but the applicant referred to his caste of Jat, and made a general complaint:
   • 3. ... Rajastan is ruled by Rajputs who are mainly landlords and involve with BJP politics. ... Jats are always being persecuted for their ethnicity. ... Being an active Congress activist I became one of the victims of persecution by the Rajputs who are in power now for political belief and ethnicity.
5. The applicant’s submission to the Tribunal also claimed that he had helped Muslims during difficult times in 1992, and suggested that this caused him to be “assaulted a few times by the unidentified person on my [way] to home from party office”. He claimed that “as a result of my leadership profile I came at the attention of the government authorities and the thugs. I was warned many times to move from their ways and threatened to be killed”.
6. The applicant attended a hearing on 6 December 2005, and descriptions of his evidence is found in the Tribunal decisions which are before me. The transcript is not in evidence. The applicant told the Tribunal that he had been a member of the Indian Congress Party between 1988 and when he came to Australia, and that from 1992 to 1996 he was the secretary of the block level of the party, at the village level, but had not held other office.
7. The applicant gave more details about the “BJP Rajput supporters” attacking his house “when he himself escaped in January 2000”. He also gave a description of the second incident in February 2001:
   • As they were coming towards a village, people from the Rajput group stopped their car in front of the car in which the applicant and his friends were travelling, and they started abusing them. Four of the applicant’s friends, including the applicant, ran way, but one person was killed by the opposing group of about five people.

The applicant said that “they tried to stop him from running away, and in doing so they injured his finger”. He said he went to Delhi for a few days and then went home.

8. The applicant also explained what had happened in January 2005, when he said he had been working in the local elections. At a meeting of the INC there were 10 people outside who wanted to attack the INC members. The applicant “escaped by the back door. He said that some of the people who attended the meeting were beaten up as they left”. The applicant did not identify any other matters causing him concern.
9. The decision by the Tribunal as first constituted was handed down on 19 January 2006. It was set aside by consent order of this Court on 19 June 2006, for reasons which are not apparent to me, but possibly arose from the Tribunal’s failure to address separately a claim based on ethnicity or membership of his caste.
10. On remitter, the new Tribunal did not hold a second hearing, and handed down a decision on 12 October 2006. It was on that ground that its decision was later set aside on 22 September 2008, by consent order of this Court. The second Tribunal did send to the applicant an invitation to comment on points, before making its decision. This warned the applicant that the new member was not bound to accept assertions which were accepted by the previous member. The letter raised some points arising from the applicant’s previous written and oral evidence, including that he had not made a claim until the hearing of the Tribunal that he was being actively sought by BJP people.
11. In a letter to the Tribunal received on 22 August 2006 the applicant claimed that he had been identified as a “prominent political activist of my area”, and incorrectly claimed to have previously identified a particular person, Mr Singh, as the person who had attacked him in 2001, being a person “well known for harming Jat leaders and their interests”. Some press clippings concerning recent criminal activities of Mr Singh were included. Also included was a medical certificate referring to a “left thumb injury” on a date which the Tribunal later thought had been altered to show February rather than January 2001. The certificate prescribed complete rest for one day. A second medical certificate appeared to be dated in 2000, referred to “injury of right-side of head”, and prescribed complete rest for three days. Another document which was included was a certificate by a president of a Congress Party block committee, certifying that the applicant had been appointed a secretary in a district between 1992 and 1996, and “after that he was designated vice-president of a district congress committee”.
12. After the second remitter, the applicant was invited to a hearing and attended it on 18 November 2008. A transcript is not evidence but the Tribunal gives a detailed description in its statement of reasons, and I have no reason not to accept that.
13. The applicant presented to the Tribunal additional press clippings concerning the criminal activities of Mr Singh, which, however, did not identify the applicant as a victim. At the end of the hearing, the Tribunal gave the applicant an opportunity which was confirmed in a letter, allowing him to provide any further information, including translations of some of the clippings which he had not yet provided. However, the applicant did not take up that opportunity, beyond providing details of a website concerning a prosecution of Mr Singh for a 2006 incident.
14. The Tribunal made a decision on 6 January 2009, which affirmed the delegate’s decision. In its statement of reasons, under the heading “Findings and Reasons”, the Tribunal closely examined the evidence presented by the applicant to the Tribunal in support of his claims to fear persecution in India. The Tribunal sufficiently summarised the applicant’s claims:
    • 94. The Tribunal considers that the applicant’s claims have varied significantly over time. Nevertheless, the core of his claims to fear persecution in India are because he is a member of the Congress Party who is also of the Jat caste, and that he fears people in the BJP, who are Rajputs, and in particular, a man associated with the BJP who is also a serious criminal, Anand Pal Singh, and his associates. He fears for his life and claims a number of his friends have already been killed. He claims that Anand Pal Singh has been looking for him for many years and he is still looking for him in order to do him serious harm.
15. Earlier in its reasons at paragraphs 48 and 58, the Tribunal recorded the applicant’s clear evidence to the Tribunal that all his fears of harm were “tied to his political views” and that he did not have “any fears by virtue of being a Jat caste member alone”. The Tribunal took from this evidence, as I think was open to it, that the applicant’s caste should be considered in the context of his political claims, as part of his claimed background in politics.
16. The Tribunal accepted that Mr Singh and his group of criminals existed, that he came from an area in Rajasthan near to the applicant’s home village, that he had been responsible for the deaths of people in 2006 and “perhaps many other crimes”, and that these deaths “arose because of problems between the Jats and the Rajputs and that there may be some connection between the BJP and Anand Pal Singh”. However, the Tribunal noted that neither the documents provided by the applicant, nor the independent country information available to the Tribunal, indicated that Mr Singh was “searching for the applicant in order to do him harm or that he has been looking for him in the past for this reason”. The Tribunal said its decision about the applicant’s claims of persecution by Mr Singh therefore turned upon its assessment of the credibility of the applicant. It indicated its conclusion that “the applicant had not been truthful in his claims of persecution, and in particular, those claims relating to Anand Pal Singh and his group, and is not credible”.
17. To explain this conclusion, the Tribunal traced how the applicant’s claims had developed over time in his written and oral evidence, and identified inconsistencies which cast doubt on their credibility. In particular, according to the Tribunal’s opinion, the person or persons feared had changed, particularly with the emergence of Mr Singh only in the applicant’s 2006 statement to the second Tribunal. The Tribunal concluded from the chronology that “the claims concerning Anand Pal Singh and his group are a recent invention to improve the applicant’s prospects of being found to be a refugee”.
18. The Tribunal also thought that the reasons presented by the applicant for being attacked had changed over time, and the nature of the threat also. It said: “the applicant’s claims ... appear to have evolved from general, unrelated, claims of attacks from BJP supporters to specific claims against an individual who is a known criminal”. It identified other inconsistent evidence given by the applicant, including a new claim made at the last hearing that the applicant had gone into hiding between 2001 and 2005.
19. The Tribunal also analysed the applicant’s evidence about the three incidents originally presented, and some additional incidents which he claimed later. It said that the applicant had not at the first hearing or previously claimed that he had suffered injury in January 2000. It noted that the date on the 2001 medical certificate appeared to have been altered from January to February. It formed the view that this was probably “with the purpose of making it fit to the applicant’s existing evidence of an attack in February 2001 in which he suffered a hand injury”.
20. The Tribunal identified other problems in the applicant’s evidence, and formed the general opinion that the applicant had not been truthful in his claims. The Tribunal accepted only that the applicant may have been a Congress Party supporter or voter, and was a member of the Jat ethnic group. It specifically indicated that it did not accept the truthfulness of the history claimed by the applicant, including his being a high profile Congress Party member, that he faced attacks for being a Congress Party leader, supporter or member, that he was at risk of serious harm from the Rajputs, and that he was being sought by any people from the BJP or otherwise and was at risk of serious harm as he had claimed. The Tribunal said:
    • 159. Considering the applicant’s claims overall, the Tribunal does not accept that the applicant is truthful as to his claims to fear serious harm for political reasons, being his association with the Congress Party, or for ethnic reasons, being his Jat caste, or for both reasons, should he return to India, now or in the foreseeable future.
    • 160. The applicant has not claimed any other reason for fearing to return to India. Hence the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the Convention reason of political opinion, or any other grounds, should he return to India, now or in the foreseeable future.
21. I am now asked to set aside the Tribunal’s decision, and to remit the matter for a third consideration. I do not have power to make these orders unless the present decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
22. The applicant’s contentions which he relies on are found in the original application. The applicant claimed today to have sent to the Court an amended application, but no such application was received. He did not have a copy to show the Court. The Court was, however, made aware by the free legal advisor that a draft amended application had been prepared by him and shown to the respondent’s solicitors, and a copy of that document is in evidence before me. I shall consider the contention which it contains.
23. The applicant’s original application contains the following grounds:
    • 1. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
      • a. it failed to properly apply the consideration that applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here.
    • 2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
    • 3. The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
24. The first ground contains a fundamental inconsistency between its opening contention and the contention in paragraph (a). The first paragraph seems to contend that the Tribunal “ought to have” had doubts about the applicant’s refugee status, but did not. The second contention asserts that the Tribunal did have doubts, and complains that it did not then consider whether the applicant should be given the benefit of that doubt.
25. Putting aside this inconsistency within Ground 1, I can detect no error by the Tribunal in relation to its findings about the truthfulness of the applicant’s refugee claims, nor any obligation on the Tribunal to consider the hypothesis that its adverse view of the applicant’s credibility might be wrong. The Tribunal made clear findings on the evidence, and gave reasons which were rational and open to it on the material for forming a positive opinion that it was not satisfied as to the claimed history. In those circumstances, on current authorities it was not obliged to consider the applicant’s evidence on the hypothesis that the Tribunal’s factual conclusions might be wrong (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 as discussed in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 239–241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]- [14], and SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]-[53]).
26. I therefore can find no jurisdictional error raised by the first ground of the application.
27. The second ground gives no particulars of the alleged denial of procedural fairness. If the rationality of a Tribunal’s statement of reasons is relevant to a consideration of procedural fairness, then I am not at all persuaded that the Tribunal’s reasoning reveals irrationality or conclusions that were not obviously open on the material.
28. Moreover, I consider that the applicant was given a full opportunity over the whole course of the proceeding before the Tribunal, and in particular at the last hearing he attended, to address the particular matters which ultimately concerned the Tribunal. As counsel for the Minister points out in her written submission, it is clear from the Tribunal’s description of the hearing that its detailed questioning must have shown the applicant the Tribunal’s concerns, and there were important points where the Tribunal expressly put to the applicant that it might not accept his evidence. The alteration of the medical certificate and the late mention of Mr Singh were clearly drawn to the applicant’s attention as matters which might reflect on his credibility.
29. I am not at all persuaded that there was any substantial issue upon which the Tribunal decided the review, which would not have been sufficiently apparent to the applicant from the course of the proceedings before the delegate and the Tribunal (compare SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39 at [18]- [23], and Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285).
30. For all the above reasons, I do not consider that Ground 2 raises any jurisdictional error of this Tribunal’s decision.
31. Ground 3 is a precedent paragraph which I have difficulty applying to this decision of the Tribunal. It is unexplained by any written or oral submissions to me, and in the circumstances of this present case appears to be no more than an invitation to the Court to assess for itself whether the applicant satisfies the definition of ‘refugee’ under the Convention. However, it is not the function of the Court to form its own view about that.
32. The draft amended application prepared by the free panel advisor contemplated the following ground:
    • The RRT erred in law by failing to exercise jurisdiction in not complying with sub-para 424AA(b)(iii) regarding the applicant’s claims that one Anand Pal Singh had attacked him.
      • Particulars
      • Applicant’s statement, letter of 21 August 2006, [2], [CB 83]
      • The RRT gave particulars of information about Anand Pal Singh to the applicant, which information ultimately formed part of the reason for affirming the decision under review, and asked questions of the applicant about those particulars, but did not advise the applicant that the applicant might seek additional time to comment on or respond to that information; see RRT’s Decision Record [59] – [78]; esp [75]; [100.9] & [104] – [120]; esp [120]; [134] – [137]; [141], [157, 2nd & 3rd last dot points]
33. It is not apparent to me that there were any defects in how the Tribunal put the concern about the late mention of Mr Singh to the applicant orally at the second hearing, particularly in the absence of any transcript. However, the proposed ground of non-compliance with s.424AA(b)(iii) of the Migration Act 1958 (Cth) suffers from an additional difficulty. The procedures under s.424AA are not required to be followed as a jurisdictional procedure, unless an obligation arises on the Tribunal in relation to the use of information pursuant to the provisions of s.424A (see the line of authority confirmed in SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46).
34. In the present case, the information about the applicant’s presentation of information concerning Mr Singh, including his earlier failure to mention Mr Singh, was not a matter which was required to be put to the applicant in writing under s.424A. The information relied upon by the Tribunal showed only inconsistencies in the applicant’s presentation of evidence which were thought by the Tribunal to reflect on his credibility. Such information does not give rise to obligations under s.424A (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609).
35. I therefore do not consider that the amended application shown to the Minister’s solicitors, assuming it was the amended application intended to be relied on by the applicant, establishes any ground of jurisdictional error.
36. I have not for myself been able to identify any jurisdictional error affecting this decision of the Tribunal.
37. For all the above reasons, I must dismiss the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 June 2009