SZQDR v Minister for Immigration & Anor [2011] FMCA 699 (14 September 2011)

Last Updated: 14 September 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQDR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 699

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal engaged in an active intellectual process with regard to two medical documents – Tribunal’s findings were reasonably open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.430, 476

Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (1995) 133 ALR 226 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 223 ALR 171; (2005) 80 ALJR 367 Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165 Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138

Applicant:

SZQDR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 711 of 2011

Judgment of:

Nicholls FM

Hearing date:

6 September 2011

Date of Last Submission:

6 September 2011

Delivered at:

Sydney

Delivered on:

14 September 2011

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Ms L Weston

Solicitors for the Respondents:

Minter Ellison

ORDERS

(1) The application made on 13 April 2011 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 711 of 2011

SZQDR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 13 April 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 March 2011, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

2. The applicant is a citizen of India. He arrived in Australia on 28 July 2010 on a Business (Short Stay) Subclass 456 visa. He applied for a protection visa on 7 September 2010 (Court Book – “CB” – CB 1 to CB 43). He was assisted by a registered migration agent (CB 1 and CB 25 to CB 28).

Claims to Protection

3. The applicant’s claims to protection were initially set out in a statement attached to his protection visa application (CB 41 to CB 43).
4. The applicant claimed to be a member of the Indian National Congress Party (CB 41.1). He claimed that while he was working in the United Arab Emirates in 2003 he received an anonymous telephone call warning that he and his friend (his future brother-in-law) would be killed if the marriage between his sister and that friend went ahead (CB 41.3). The applicant claimed that a few days after the marriage occurred, on 9 January 2006, “... a mob of around 15 CPI [Communist Party of India] activists carrying weapons trespassed into [his] house asking for [the applicant] and [his] brother-in-law... warning that they would return to kill [them]...” (CB 41.5). Consequently on 15 September 2007 the applicant left India to go to Dubai (CB 41.6).
5. The applicant claimed that when the CPI activists learnt of the applicant’s departure to Dubai they physically assaulted the applicant’s mother causing her to be hospitalised. This caused the applicant to immediately return to India. He claimed that on return from a visit to the hospital to see his mother, he was attacked by a group of unidentified people causing him to be admitted to a nursing home (CB 41.9 to CB 42.2).
6. The applicant claimed he was attacked a third time on 4 January 2010 by a group on “four motor bikes”. The incident was reported to the police, but the applicant claimed that when the police became aware “... about the party background, they didn’t file FIR [First Information Report] and instead asked me to leave the matter.” (CB 42.6.) As a result the applicant claimed that as “... this was the first time the matter was taken to Police, the CPI activists got infuriated and started torturing me with the help of Police.” (CB 42.7.)
7. The applicant also claimed that during 2009 his marriage to a woman was arranged, but that it was later called off due to the woman’s parents being blackmailed by “the activists”, who said she would become a widow if she married the applicant (CB 42.5).

The Delegate

8. The applicant was invited to attend an interview before the delegate on 15 November 2010 (CB 44 to CB 47), however neither the applicant, nor his representative, attended the interview. No reason was provided for this non-attendance. Consequently, the delegate found the applicant’s claims to be unsubstantiated and lacking in sufficient detail. The delegate was willing to give the applicant the benefit of the doubt and accepted his statement of claims, but found that he could access effective state protection in India, and that internal relocation was a reasonable and practical option (CB 61).

The Tribunal

9. The applicant applied to the Tribunal for review of the delegate’s decision on 20 December 2010 (CB 70 to CB 74). The applicant was invited to attend a hearing before the Tribunal on 1 March 2011. This correspondence was sent to the applicant’s migration agent (CB 85 to CB 87).
10. On 24 February 2011 the Tribunal received a letter from the applicant’s migration agent which, amongst other matters, informed it that she had not received a letter from the delegate inviting the applicant to an interview and that she had been advised that the delegate had been unable to locate the relevant registered mail with the post office.
    The migration agent also addressed certain country information, indicating why internal relocation was not a possibility for the applicant, and why state protection was not effective (CB 93 to CB 95).
11. At the hearing the applicant made further factual claims. The Tribunal also received a copy of the applicant’s passport, two medical certificates from two physicians and a “certificate” from a local councillor (in India) to say that the applicant had been a member of the Congress Party for the past three years (CB 103 to CB 111).
12. The Tribunal was: “... not satisfied as to the credibility of the Applicant’s claims to have suffered harm in India because of his political involvement or because of his sister’s marriage.” ([68] at CB 129.) This was based on the Tribunal’s various findings that the applicant’s claims and evidence contained inconsistencies, were vague in critical matters, and certain aspects were implausible. The Tribunal rejected the applicant’s factual basis to fear persecutory harm. It affirmed the delegate’s decision.

Application to the Court

13. The applicant put forward one ground before the Court:
    • “1. The Tribunal constructively failed to exercise its jurisdiction:
      • Particulars:
      • The applicant provided documents to the Tribunal to corroborate his claims. In particular the applicant provided a copy of translated medical certificate (page no.17 of RRT decision). The Tribunal failed to engage in an active intellectual process in respect of this document. The Tribunal ultimately failed to gave the document no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substances of the documents corroborated his claim.”
    • [Errors in the original.]

Before the Court

14. The applicant appeared in person before the Court. He was assisted by an interpreter in the Malayalam language. Ms L Weston appeared for the first respondent.
15. The applicant clarified that a friend had drafted the ground in the application to the Court. He could not assist in explaining the ground, nor in making submissions before the Court. He had nothing further to say other than that he could not go back to India. The applicant confirmed that he had consulted a lawyer in relation to his application to the Court.

Consideration

16. The ground as stated is that the Tribunal constructively failed to exercise its jurisdiction. There are a number of elements to this under the heading of “Particulars”.
17. The central complaint appears to be that the Tribunal failed to properly consider (“engage in an active intellectual exercise”), in particular, a medical certificate which he had provided as part of a set of documents to corroborate his claims. Further, that the Tribunal placed no weight on this document.
18. The applicant appears to have provided a number of documents to the Tribunal, which the Tribunal acknowledged ([29] at CB 128). Two of the documents could be classed as “medical certificates” (CB 109 and CB 110). The applicant’s complaint appears to be directed to the Tribunal’s claimed treatment of “a copy of translated medical certificate...” yet both certificates are in English and appear to be copies of the originals.
19. Whichever document was the subject of the complaint, no error on the part of the Tribunal is revealed.
20. First, the author of the applicant’s ground was probably seeking to evoke references in some cases to the idea of an “active intellectual process” in assessing evidence and material before a decision-maker as being necessary to the task of administrative decision-making (Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (1995) 133 ALR 226 and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140).
21. In many ways this is a restatement of an older and established requirement that a decision-maker give “proper, genuine and realistic consideration” to such material (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 223 ALR 171; (2005) 80 ALJR 367 per Gummow J at [37]).
22. Whatever iteration of this complaint is meant by the applicant’s ground, it fails at the factual level. The Tribunal did not fail to properly engage with either of the two medical documents submitted by the applicant.
23. The “first” medical document (copy at CB 109) was described by the Tribunal as containing an illegible signature and date and importantly: “... the complaint which the Applicant is said to be suffering is also illegible...” ([29] at CB 122). In these circumstances it is difficult to see what further consideration or “engagement”, intellectual or otherwise, the Tribunal could have had with this document.
24. The contents of the “second” medical document (CB 110) were referred to by the Tribunal in its decision record ([29] at CB 122).
    The Tribunal noted that the certificate from a doctor stated that the applicant had been under treatment for dislocation of his shoulders in May 2008 and had received treatment in hospital.
25. The certificate was plainly given to the Tribunal in support of the applicant’s claim that he had been “brutally attacked” by a “group of people” in May 2008 (CB 41.9), and the claim that he had received treatment (CB 42.3). The Tribunal raised this matter and the medical certificate with the applicant at the hearing ([56] at CB 127).
26. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of the hearing. That account shows that the Tribunal squarely raised with the applicant the inconsistency between his oral evidence (a “severe ache” in his shoulders the day after the claimed attack) and what was asserted in the certificate (he was treated for dislocation in both shoulders). The Tribunal’s concern was that such injuries would have induced “immediate and significant pain”, not just an ache the next day.
27. It is the case that the Tribunal did not make specific mention of the medical certificate in its “Findings and Reasons”, but no error is revealed. The Tribunal’s decision record is meant to be read holistically and in context. In its plain from, the Tribunal’s consideration at the hearing was that, in the absence of any satisfactory explanation from the applicant as to the inconsistency in his oral evidence and the documentary evidence, the medical certificate was of no assistance to the applicant.
28. Section 430 of the Act, which compels the Tribunal to prepare a written statement on its decision, requires the Tribunal, amongst other things, to refer to the evidence on which its findings of fact were based.
    The Tribunal’s reference in its report of the hearing is such a reference.
29. In any event, and further, the fact that the Tribunal based its findings more specifically on other evidence before it in its “Findings and Reasons” does not reveal error. As it analysis demonstrated, there was more than enough evidence before it to support its findings that the applicant’s account of past harm was not credible.
30. In any event, and still further, even if some error were to arise in its implementation of the obligation in s.430, it does not reveal jurisdictional error (Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [68]).
31. Even further, it is the case, as the Minister submits, that the Tribunal did not expressly reject the authenticity of these medical certificates. What the Tribunal rejected, for reasons that it gave, was the relevant factual basis for the applicant’s claim to fear harm. That is, in particular, and based on the applicant’s own evidence, the factual assertions made by him relating to the claimed attacks. That the Tribunal was not persuaded by the medical documents in the face of its adverse view of the applicant’s own evidence does not reveal error in circumstances where the Tribunal’s findings were reasonably open to it.
32. This is not a situation where the Tribunal failed to deal with an aspect of an applicant’s claim (see for example as in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, or as discussed in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184). But even in that situation, it is the case, as the Minister submits, that a distinction can be drawn between such a failure (which in my view has not occurred here) and where there is a failure to take into account evidence that may lead to a different factual finding (Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 (“MZYHS”)).
33. But this case does not fall into any of these categories. As set out above, the Tribunal did not fail to have proper regard to the two medical documents. It saw them as having been put in corroboration of the applicant’s claim to have been attacked. The first document did not assist because it was illegible in critical aspects. The second was inconsistent on its face with the applicant’s own evidence. No error is revealed in this regard.
34. The applicant also complains that the Tribunal gave the medical documents no weight because of its adverse findings as to the applicant’s credit.
35. First, as the Minister submits, in the circumstances it was reasonably open to the Tribunal to give no weight to the “first” document (as it was illegible), and to give greater weight to its view of the applicant’s own evidence. What the applicant appears not to have understood is that in relation to the “second” medical document, his own evidence contradicted what was on the certificate’s face. It was open to the Tribunal to give lesser weight to what was on the face of the certificate (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165 and MZYHS).
36. Nor does any attack of the Tribunal’s relevant reasoning in this regard succeed to reveal error on the part of the Tribunal. On a holistic and certainly a fair reading of its decision record the Tribunal did have regard to both certificates.
37. The applicant also complains that the Tribunal was in error in first assessing his credit without reference to the substance of the documents. In relation to the “first” document, it is difficult to see what further regard the Tribunal could have had to it, given its illegible characteristics (a finding open to the Tribunal). In relation to the “second” it was, on a holistic view of its analysis, a part of the Tribunal’s consideration of the adverse view of the applicant’s own evidence.
38. But as the Minister submits, even if the Tribunal had reached a conclusion on credibility prior to any consideration of the corroborative material, no error is revealed (see Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [35]). In any event, having regard to the totality of the Tribunal’s record, this is not the case in the current matter.
39. In written submissions, the Minister seeks to address the question of bias. It is not clear why this was done. Even if it could be said that some inference of bias on the part of the Tribunal can be said to arise from the ground as pleaded, the lack of clarity alone in the pleading is sufficient to dispose of any such concern.
40. Given the seriousness of any such allegation, it must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679 (“Jia Legeng”) per Gleeson CJ and Gummow J at [69] and Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982 (“Ex parte H”)).
41. In any event, there is nothing in what is before the Court to say that the tests for either bias (Jia Legeng per Gleeson CJ and Gummow J at [71] - [72]) or the apprehension of bias (Ex parte H per Gleeson CJ, Gaudron and Gummow JJ at [27] - [28] and [30] - [31], and Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 per Branson, Finn and Bennett JJ at [14]) can be made out.

Conclusion

42. For the applicant to succeed before the Court, jurisdictional error must be found in the Tribunal’s decision. As no such error can be discerned, the application is to be dismissed.

I certify that the preceding 42Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-twoforty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 14 September 2011