SZOHH v Minister for Immigration & Anor [2011] FMCA 229 (5 April 2011)

Federal Magistrates Court of Australia

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SZOHH v Minister for Immigration & Anor [2011] FMCA 229 (5 April 2011)

Last Updated: 6 April 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOHH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 229

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

SZBYR v Minister for Immigration (2007) 81 ALJR 1190 [2007]; HCA 26 Minister for Immigration and Citizenship v SZGUR [2011]; HCA 1 Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63

Applicant:

SZOHH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 179 of 2011

Judgment of:

Emmett FM

Hearing date:

5 April 2011

Date of Last Submission:

5 April 2011

Delivered at:

Sydney

Delivered on:

5 April 2011

REPRESENTATION

The Applicant appeared in person assisted by a Malayalam interpreter

Counsel for the Respondent:

Mr Godwin

Solicitors for the Respondent:

Mr Pinder (DLA Phillips Fox)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 179 of 2011

SZOHH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 January 2011 and handed down on 7 January 2011.
2. The applicant claims to be a citizen of India and an active member of the Students Federation of India (“SFI”) and the Democratic Youth Federation of India (“DYFI”) (“the Applicant”).
3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

4. The Applicant arrived in Australia on 6 April 2009 having departed legally from India on a passport issued in his own name and applied for a protection visa on 9 April 2009.
5. On 8 April 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
6. On 1 July 2009, the Delegate refused the Applicant’s application for a protection visa.
7. On 24 July 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
8. On 10 March 2010, the first Tribunal affirmed the decision of the Delegate not to grant a protection visa.
9. On 30 March 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
10. On 26 August 2010, Driver FM set aside the decision of the Refugee Review Tribunal made on 10 March 2010 and remitted the matter to be determined according to law.
11. On 10 January 2011, the second Tribunal affirmed the decision of the Delegate not to grant a protection visa.
12. On 4 February 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision made on 7 January 2011.

Legislative framework

13. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
14. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
15. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
    • “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
16. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

17. The Applicant provided a hand-written statement in support of his protection visa application in which he stated that:
    1. At college, he was an active member of the SFI and was also its President.
    2. He had many enemies as the President of SFI including the the Rashtriya Swayamsevak Sangh (RSS).
    100. The RSS tried to attack him when the SFI achieved a victory in campus elections. One of his friends was killed as a result of the attacks.
    4. Due to these problems, he was unable to complete his studies.
    5. He subsequently became a village committee member of the DYFI.
    6. THE RSS began carrying out youth related activities in his native place where he carried on the work of DYFI.
    7. He and members of DYFI stopped the RSS programs and attempted to lure people into the DYFI.
    8. As a result, the RSS planned to destroy him and he faced many attacks.
    9. He subsequently travelled to the UAE for three months with the support of his party.
    10. He returned to his native place on 10 September 2007, by which time the RSS had become the most powerful youth party there. He recommenced his political and sporting activities and subsequently experience many attacks from the RSS and was warned many times that he would be killed within a few days.
    11. To avoid the attacks, he travelled to a friend’s house in Bombay. During this time the RSS tried to find him and killed another one of his friends on 1 April 2008. Two members of the RSS were also killed and the RSS believed that the applicant and his friends were responsible for the killings.
    50. The RSS eventually found and attacked him, causing him to be hospitalised in ICU.
    13. He left the country fearing that he will be further harmed for the reason of his political opinion and membership.

The Delegate’s decision

18. On 23 June 2009, the Applicant attended an interview with the Delegate.
19. On 1 July 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

20. On 24 July 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
21. The Applicant provided further documents in support of his review application to the first Tribunal including: copies of newspaper articles; an illegible copy of a letter from the Secretary of the Titanium Local Committee of the DYFI dated July 2009, stating that the Applicant was a member of the Local Committee from 1999 to 2003 and the Secretary of the Local Committee from 2001 to 2003; and, a letter from the Kerala Softball Association (sic) dated 23 May 2009, stating that the Applicant represented the Kerala Men’s softball team from 2002 to 2008.
22. On 12 November 2009, the Applicant attended the first Tribunal hearing and gave evidence. On 10 March 2010, the first Tribunal affirmed the decision under review. However, on 26 August 2010, the Tribunal’s decision was set aside by this Court and the matter remitted to the Refugee Review Tribunal for determination according to law.
23. On 17 November 2010, the Tribunal wrote to the Applicant inviting him to a further hearing on 3 December 2010. The Applicant attended the Tribunal hearing on 3 December 2010 to give evidence and present arguments. The Applicant gave the Tribunal two further documents being: a medical certificate dated 19 August 2008; and, a discharge summary dated 24 October 2008 issued by Ernakulam General Hospital referring to a knife wound.
24. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
    • “3. The Tribunal identified three areas of inconsistency. The first related to the harm the applicant claimed to have suffered in India. The second related to his claimed membership of the Communist party of India (Maoist) (CPI(M)). The third related to his places of residence.
    • Claims of harm
    • 4. The applicant’s various claims were:
    • 4.1 In his statement attached to his protection visa application he claimed that his opponents tried to attack him and one of his political colleagues was killed while he was at college. In 2007 he was attacked many times by the Rashtriya Swatamsevak Sangh (RSS) and was warned he would be killed. On 1 April 2008 his friend was killed by the RSS. Two members of the RSS were then killed and he was targeted as the killer. Although he hid, he was found and attacked by members of the RSS and hospitalised.
    • 4.2 In his interview with the delegate he was unable to refer to or describe a single attack on him, stating that he could not recall the details. The delegate asked him if anything had happened to him at Erankulam and he said nothing had happened.
    • 4.3 At the hearing before the first RRT he stated he was attacked three times. He stated that he was riding on a bus when a group of his enemies boarded it. He escaped through the rear door of the bus unharmed with assistance from friends. He stated there were two further attacks when he was at college, but on each occasion he escaped harm. He stated there was a further attack when he was shopping in Trivandrum. He was chased across a road. He was hospitalised for two days as a result.
    • 4.4 At the hearing before the second RRT he claimed that he was attacked three times. He described an incident in 1998 where he was travelling on a bus which his political enemies in the Akhil Bharatiya Vidyarthi Parishad (ABPV) boarded. He was hurt and one of his colleagues died of his injuries. On another occasion he was attacked in the college grounds but he managed to escape unharmed. He said nothing further happened until April 2008 when a fellow member of the CPI(M) was murdered by the RSS. He claimed that he witnessed the murder and personally identified the suspects the police arrested. Then in August 2008 he was shopping when he was attacked by seven or eight people; he was hit from behind. He managed to escape and seek medical treatment. He discharged himself from hospital the same day and complained to the police. The complaint was withdrawn after he was threatened by the RSS. He claimed that there was a further attack on 12 October 2008 at Ernakulam. He was stabbed in the shoulder and suffered a head injury. He attended Ernakulam general hospital for treatment.
    • 4.5 In his response to the second RRT's written invitation to comment on information the applicant confirmed that a friend had been killed in the attack on the bus in 1998, that he had witnessed the murder in 2008 and identified the attackers, and that he was attacked in October 2008 in Ernakulam.
    • Membership of CPI(M)
    • 5 The applicant’s various claims were:
    • 5.1 In his statement attached to his protection visa application the applicant claimed he was an active member of the CPI(M) and President of the Student Federation of India (SFI) at his college. He was a village committee member of the Democratic Youth Federation of India (DYFI).
    • 5.2 At the interview with the delegate he denied he had been a member of the CPI(M). He claimed he was a member of the DYFI local committee from 1999 to 2003.
    • 5.3 At the first RRT hearing he claimed he was a member of the CPI(M). He submitted a letter stating he had been a member of the DYFI local committee from 1999 to 2003 and secretary of that committee from 2001 to 2003.
    • 5.4 At the second RRT hearing the applicant claimed he was a member of the CPI(M). He claimed that he joined DYFI in 2000 and in 2002 became the secretary of the local committee. He held that position until 2004.
    • 5.5 In his response to the second RRT's written invitation to comment on information the applicant confirmed the substance of his evidence to the second Tribunal.
    • Place of residence
    • 6. The applicant’s claims were:
    • 6.1 In his protection visa application the applicant stated he lived at a single address in Trivandrum.
    • 6.2 In his written statement he said he went to Sharjah in the UAE for three months. In 2007 he moved to a friend’s house in Bombay. He then moved to a friend’s house in Ernakulam.
    • 6.3 In his interview with the delegate he claimed to have lived at Tivandrum until November 2008 when he moved to Ernakulam to hide with a friend.
    • 6.4 In his first RRT hearing he said he went to Mumbai in August 2006 and also stated that in November 2008 he moved to Ernakulam to hide with a friend.
    • 6.5 In his second RRT hearing he stated that he lived at the same address in Trivandrum until 2004, when he moved to his sister’s house nearby. He remained there until November 2008 when he moved to Ernakulam to hide with a friend. He said he went to Mumbai for 2 months in 2006 before going to the UAE.
    • 6.6 In his response to the second RRT's written invitation to comment on information the applicant stated that he had moved to his sister’s house in 2004, spent two months in Mumbai in mid 2006 and three months in the UAE in 2007.
    • The decision of the Tribunal
    • 7 By reason of the inconsistencies in relation to these matters the second RRT did not find the applicant to be a credible, reliable or truthful witness. It found that his evidence showed a propensity to shift and tailor evidence in a manner which achieved the applicant's own purpose. It found his claim to have been assaulted in 2008 to be a concoction and that he had suffered no harm and all his claims were concocted. Given the fundamental lack of credibility, the Tribunal gave the supporting documentary material submitted by the applicant no weight.”

The proceeding before this Court

25. The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
26. On 22 February 2011, the Applicant attended a directions hearing before me. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
27. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant chose not to participate in the Court’s Legal Advice Scheme. Nevertheless, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
28. On 22 March 2011, the Applicant filed an amended Application.
29. The Applicant confirmed that he relied on the grounds contained in an amended application, filed on 22 March 2011 as follows:
    • “1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s424A as decided by the majority judge of the High Court in SAAP.
    • 2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the Applicant’s claim were vague and inconsistent, being conclusions that were not obliviously open on the known material, without giving the applicant opportunity to be heard in respect of those matters.”
30. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

31. Ground 1 was unsupported by particulars, evidence or written submissions. In oral submissions, the Applicant said that the Tribunal conducted the hearing without providing the Applicant with sufficient opportunity explain his case. The Applicant also said that the Tribunal had not given him notice in advance on what their decision would be.
32. To the extent that the Applicant’s first complaint in support of ground 1 suggests that the Applicant was denied a proper opportunity to explain his case, such an allegation is not made out on a fair reading of the Tribunal’s decision record.
33. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 22 February 2011, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
34. A fair reading of the Tribunal’s decision record makes clear that the Tribunal comprehensively summarised: the Applicant’s written claims in support of his application for a protection visa; his interview with the Delegate; the further documents provided by him in support of his application for review of the Delegate’s decision; the evidence given by the Applicant to the first Tribunal on 12 November 2009; the concerns put by the first Tribunal member to the Applicant about his evidence; the further medical documents provided to the Tribunal on
    3 December 2010; the further evidence given by the Applicant on
    3 December 2010; and, the matters of concern put by the Tribunal to the Applicant about his evidence and the Applicant’s responses.
35. At the conclusion of the hearing on 3 December 2010, the Tribunal put to the Applicant that it had difficulty believing his claims and that it would write to him to provide him with a further opportunity to respond to some of the information put to him at the hearing.
36. On 6 December 2010, the Tribunal duly wrote to the Applicant giving him information that may be the reason or part of the reason for affirming the decision under review and inviting the Applicant to comment. The information largely consisted of inconsistencies in information and evidence given by the Applicant over the course of his protection visa application, his interview with the Delegate and his hearings before the Tribunal.
37. The Tribunal noted the Applicant’s response, dated 20 December 2010, which was largely a restatement of some of his evidence. The Applicant did assert in the letter that during the interview he was really tired because he worked at night and had no sleep that day. However, the Tribunal noted that the Applicant did not raise that issue at the hearing and that there was nothing in his evidence or manner in which he presented at the Tribunal hearing to indicate that he was experiencing difficulties in comprehending or responding to the Tribunal’s questions. The Tribunal rejected the Applicant’s explanation as satisfactory to explain the concerns it had with regard to his credibility.
38. The Tribunal identified with particularity the various inconsistencies in the Applicant’s evidence that caused it particular concern and ultimately caused it to find that the Applicant was not a truthful or reliable witness. The Tribunal further commented that it was not satisfied that the inconsistencies in the Applicant’s claims were satisfactorily explained by reference to the Applicant having to repeat his claims over time. The Tribunal provided particular detail about the inconsistent evidence given by the Applicant in relation to his claims of past harm, his membership of the CPI and the positions he had occupied at other affiliated political organisations and his various residential addresses and movements in India.
39. In the circumstances, the Tribunal’s decision record makes clear that the Applicant was provided with a fair and reasonable opportunity to explain his case and to answer the Tribunal’s concerns.
40. To the extent that Applicant complained that the Tribunal did not give him notice in advance of what would be in its decision, there is no such obligation on the Tribunal to do so.
41. To the extent that ground 1 alleges a failure by the Tribunal to comply with s.424A of the Act, there was no information relied upon by the Tribunal that was a rejection, denial or undermining of the Applicant’s claims to be a person to whom Australia owes protection obligations (SZBYR v Minister for Immigration (2007) 81 ALJR 1190 [2007]; HCA 26 at [17]).
42. It is well established that inconsistencies found to exist in an applicant’s evidence do not enliven any obligation under s.424A of the Act (SZBYR v Minister for Immigration (2007) 81 ALJR 1190 [2007]; HCA 26; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [9] and [77]).
43. In any event, the Tribunal’s decision record makes clear that the inconsistencies in the Applicant’s evidence which caused it concern were put by the Tribunal to the Applicant both at the hearing and in writing and his responses noted.
44. At the heart of the Tribunal’s affirming the decision under review was its comprehensive adverse credibility findings in respect of the totality of the Applicant’s claims. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
45. Further, the Tribunal considered the documents submitted by the Applicant in support of his claims. However, the Tribunal found that “given the fundamental lack of credibility within his evidence” the Tribunal did not give any weight to the documents. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the relevance of the documents and had regard to those documents in considering whether or not the Applicant had a well founded fear of persecution for a Convention related reason.
46. Accordingly, ground 1 is not made out.

Ground 2

47. Ground 2 was unsupported by particulars, evidence or written submissions. In oral submissions, the Applicant said that his case had not been given sufficient time by the Tribunal and again repeated that he was not given enough time to comment on each of the matters and his documents were not dealt with seriously.
48. To a large extent, the reasons in ground 1 above deal with these complaints.
49. It was apparent from the Delegate’s decision that the Applicant’s credibility was in issue and that his credibility was affected in the Delegate’s mind by the inconsistencies in his evidence.
50. In the circumstances, the Applicant should have been aware that his credibility was an issue before the Tribunal arising from the various inconsistencies in his material and evidence (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [35], [37] and [47]).
51. As stated above, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave. I reject the Applicant’s assertion in ground 2 that the Tribunal’s conclusions “were not obviously open on the known material”. Further, for the reasons referred to in ground 1 above, it is clear that the Applicant was given an opportunity to be heard in respect of all matters of concern to the Tribunal.
52. Accordingly, ground 2 is not made out.

Conclusion

53. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
54. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
55. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
56. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:

Date: 5 April 2011