SZQDU & Anor v Minister for Immigration & Anor [2011] FMCA 749 (7 September 2011)

Last Updated: 1 March 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQDU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 749

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 427

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 SZEQH v Minister for Immigration and Citizenship (2008) 172 FCR 127; [2008] FCA 1474

First Applicant:

SZQDU

Second Applicant

SZQDV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 737 of 2011

Judgment of:

Barnes FM

Hearing date:

7 September 2011

Delivered at:

Sydney

Delivered on:

7 September 2011

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

(1) The application is dismissed.
(2) The applicants pay the costs of the first respondent fixed in the sum of $4,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 737 of 2011

SZQDU

First Applicant

SZQDV

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 14 March 2011 affirming a decision of a delegate of the first respondent not to grant the applicants’ protection visas. The applicants, citizens of India, arrived last in Australia in July 2010 and applied for protection visas in August 2010.
2. In a statement attached to the protection visa application the first applicant, the applicant husband (who for convenience is referred to hereafter as “the applicant”) attached a statement in which he claimed to be a member of a Shia Imami Ismali Muslim sect family. This was said to be a minority Muslim sect in India. The applicant claimed that his father, who had been involved in the Ismali movement in Mumbai, was attacked by Sunni Muslims and warned to leave and had moved to the United States of America.
3. The applicant claimed that he was involved in “helping the poor and other disadvantaged people regardless of their religious background” and that they were very successful in their area where several Sunni Muslims and Schedule caste people had converted en masse to his faith.
4. He claimed that he and others in the area were threatened by Sunni Muslims and Hindu RSS extremists and that RSS members came to his house and beat him, stole their valuables, assaulted his wife and warned him to leave the area. He claimed that Sunni Muslims had erected a signboard that mentioned his name and his father’s name at the main gate of the Jamatkhanas, which bore slogans provoking the people against them. He claimed the police took no action against these people.
5. The delegate conducted an interview which the applicant attended. The delegate refused the application and the applicants sought review by the Tribunal by application filed on 24 November 2010. The Tribunal acknowledged receipt of that application by letter of 25 November 2010 advising the applicants that if they wished to provide material or written arguments they should do so as soon as possible. By letter of 10 January 2011 the Tribunal invited the applicants to attend a hearing. In that letter the Tribunal advised that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited both applicants to appear to give evidence and present arguments relating to the issues arising in their case at a hearing scheduled for 25 February 2011. The Tribunal explained that if they did not attend the hearing the Tribunal may make a decision without taking further action to allow or enable them to appear before it.
6. The court book contains a response to hearing invitation form received by the Tribunal on 21 January 2011 in which it is indicated that both the applicant husband and the applicant wife would take part in the Tribunal hearing scheduled for 25 February 2011.
7. The applicants attended the Tribunal hearing on 25 February 2011 with the assistance of a Hindi interpreter. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
8. It is apparent from the Tribunal reasons for decision that at the conclusion of the hearing the Tribunal reminded the applicant husband that he was “entitled to seek additional time to provide further information”. He stated he wished to submit evidence and proof, particularly in relation to his “wife’s defective memory”. The Tribunal recorded that it noted that he had “ample opportunity to provide additional evidence in support of his case since the lodgement of his application” and that it was “reasonable to assume he would be able to obtain documentation from India reasonably quickly by relying on electronic and telephone communication”. The applicant was given until 4 March 2011 to submit further evidence and he agreed to provide his supporting evidence by that date.
9. On 4 March 2011 the applicants wrote to the Tribunal by facsimile letter advising that they were “unable to receive” additional documents for their benefit from India and claiming they were “trust worthy & loyal” and that the wife was “really depressed from a years & she don’t remember many incidents, we are innoccent please beleive & cooperate us, we request you to consider us refugee” (sic).
10. The Tribunal made its decision on 14 March 2011. In its findings and reasons the Tribunal accepted that the applicants were citizens of India. It summarised their claims as follows:
    • It was put to the applicant that he had stated at the interview that his father’s problems were caused by personal reasons. At the hearing, however, he claimed that these problems were purely of a religious nature. The Tribunal explained that his evidence to the Department was relevant because on the basis of the inconsistencies between the information he had provided to the Department and his evidence to the Tribunal, the Tribunal may disbelieve his claims and find that he has not been truthful and or credible. He was asked if he wished to comment or respond. He said he did not know the nature of his father’s problems when he was interviewed. When subsequently he spoke to his father, his father told him that his problems were caused by the debates he was involved in.
11. However for reasons which it gave the Tribunal did not find the applicants to be truthful and credible witnesses. It stated that in reaching that view it had regard to the inconsistencies in the applicant husband’s evidence, inconsistencies between his evidence and that of his wife and other reasons which it detailed. The Tribunal set out a number of matters that it had taken into account, including the fact that at the hearing the applicant husband was “unable to satisfactorily explain why his father’s activities prior to 1999 or his continued contact with Jamatkhanas and the payment of ‘dasond’ from afar had created problems for the applicant at the level he has claimed for so many years after his father’s departure from India”.
12. It referred to inconsistencies in the applicant’s claims in this respect, in particular the fact that the applicant told the delegate that his father was being harassed for some “personal reasons”, but at the Tribunal hearing “attributed his father’s problems entirely to his religious profile and activities”. The Tribunal did not accept that the applicant did not know the nature of his father’s problems at the time of the Departmental interview. It was of the view that “If the applicant’s father’s problems were due to his religious debates, it is difficult to see why the applicant had initially described these problems as personal or as claimed by the applicant at the interview, he had refused to explain their nature to the applicant when he had enquired”, but did so prior to the Tribunal hearing. The Tribunal found the applicant’s evidence in this respect to be “unconvincing and improvised”.
13. The Tribunal also had regard to inconsistencies in the applicants’ evidence regarding the extent and nature of the husband’s involvement in religious activities, which it found rendered the evidence given by them to be unreliable.
14. In particular, the Tribunal had regard to the fact that at the hearing the applicant had said that he was involved in “normal” religious activities, “providing financial assistance to the poor” but not “proselytizing” or “converting others or providing information about the religion to people within his community”. He claimed he was blamed because a Hindu had converted, despite the fact that he had no involvement, other than providing financial assistance to the converted person’s family in the past. The Tribunal found the wife’s evidence at the hearing contradicted the husband’s in that she claimed his religious activities included “assisting people who needed help, preaching to people and trying to convert them”.
15. The Tribunal found that the applicant and his wife also provided markedly divergent accounts of their experiences in India, in particular about the date of the claimed assault and ransacking of their house, the time of day, number of people involved, whether the husband was present and whether the wife was assaulted.
16. The Tribunal recorded that when these inconsistencies were put to the applicants, the husband stated his wife was “fearful and does not remember things” and that he had “taken her to the doctor many times in India”. The Tribunal recorded that no medical evidence was provided in support of this contention. It stated that having “carefully observed the applicant wife at the hearing, the Tribunal failed to detect any sign or indication in the manner in which she gave her evidence to suggest that she was suffering from memory deficiencies or any form of mental or physical illness”.
17. The Tribunal did not accept that the discrepancies in the applicant’s evidence were due to the “wife’s alleged faulty memory”. In addition to the fact that it found that no satisfactory explanation had been provided for inconsistencies in the accounts of the husband and wife, it found “no satisfactory explanation for the inconsistencies within the applicants’ own evidence throughout the process in describing details of the home invasion”. The Tribunal found that these inconsistencies cast “significant doubt on the applicants’ credibility and the truth of their evidence”.
18. The Tribunal also had regard to the applicants’ delay in leaving India after they obtained visas to come to Australia. It found that if they had suffered the harm that they claimed they “would not have delayed their departure from India for more than a month”. For the same reason it did not accept their explanations for not applying for protection when they first arrived in Australia (for two days in early June 2010) for not seeking asylum in New Zealand which they visited for six weeks in June/July 2010 and then for waiting another month after returning to Australia to lodge a protection visa application.
19. The Tribunal did not find the applicant husband to be a credible, truthful and reliable witness. It found his evidence showed a “propensity to shift” and that he “tailor[ed] evidence in a manner which achieves his own purpose”. In analysing inconsistencies, the Tribunal stated that it was “cognisant of the disadvantage to the applicant of having to repeat a detailed account of his past experiences”. However it was of the view that the inconsistencies in his claims were such that could not be explained by reference to the fact that he had to repeat his claims over time.
20. The Tribunal did not accept that the applicant husband was involved in the activities in his locality he claimed to have been involved in.
21. In particular it did not accept that his father was a prominent Ismaili who was involved in speaking out about Ismaili Islam, or engaging in religious debates with followers of other faiths in the local area. Nor did it accept that the applicant and his father were targeted by local Hindus, including the local RSS group, and Sunnis for reason of their religion, or for any other Convention reason. It did not accept the applicant was blamed for the conversion of a Hindu to Ismaili Islam, or that he was subject to a home invasion, or that Sunni Muslims had erected a signboard as claimed. The Tribunal did not accept the applicant was abused, threatened and assaulted, or that he faced any problems because of his sister’s marriage to a Hindu. Nor did the Tribunal accept that the applicant’s wife was assaulted or harmed in any way.
22. The Tribunal was prepared to accept that the applicants were Shia Imami Ismailis, but found no information in any of the sources consulted to suggest that such persons were being subjected to harm and/or persecution in India. It recorded that it had put this information to the applicants at the hearing. It was of the view that if such persons, “regardless of the small size of their community, were being subjected to persecution, this would have been reported by governmental, non-governmental or media organisations”.
23. On the evidence before it the Tribunal was not satisfied there was a real chance the applicants would face persecution for reason of their religion if they returned to India now or in the reasonably foreseeable future. It was not satisfied that the applicants’ fear of persecution was well-founded. As it was not satisfied that either of the applicants was a person to whom Australia had protection obligations under the Refugees Convention or that they met the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act) it followed that they were unable to satisfy the criterion for members of a family unit in s.36(2)(b) of the Migration Act. The Tribunal affirmed the decision not to grant the applicants protection visas.
24. The applicants sought review by application filed in this court on 15 April 2011. The application states that the grounds of the application are as follows (although the numbering of the grounds is not entirely clear):

1. Cross-examine me and my wife without any awareness me and my wife took an oath from religious faith.

2. Didn’t allow me to interrupt between when interviewing my wife.

25. The applicant also raised some other issues in oral submissions today. It is convenient to deal first with the ground (or grounds) as expressed in the application. The first aspect: “Cross-examine me and my wife without any awareness”, is not entirely clear as expressed. Insofar as it appears to take issue with the fact that the Tribunal asked questions of the applicant and his wife at the hearing, I note that as stated above the only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision in which it summarised what occurred at the Tribunal hearing.
26. It is, as submitted for the first respondent, well-established that proceedings before the Tribunal are inquisitorial in nature (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [18]). In exercising its inquisitorial function the Tribunal is entitled to ask applicants questions in order to satisfy itself of the merits of the application. Indeed as was noted by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [30]:
    • Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
27. The Tribunal’s account of what occurred at the hearing indicates that the Tribunal asked each of the applicants a number of questions about aspects of their claims. Their credibility was clearly in issue. It asked the applicant husband a number of questions and it also took evidence from the applicant wife and asked her a number of questions.
28. As set out above, the Tribunal did have regard to inconsistencies in the evidence of the applicant husband and the applicant wife. Relevantly, however, the Tribunal also recorded that it put such inconsistencies to the applicant for comment. It is apparent from the Tribunal account of the hearing that it purported to do so in accordance with s.424AA of the Act. It explained that the applicants would be entitled to seek additional time to comment on or to respond to the information put to them. The Tribunal put the inconsistencies and explained the relevance of those inconsistencies: in particular that the Tribunal may find that both the applicant husband and wife had not been truthful and may disbelieve their claims. The Tribunal recorded that in response the applicant husband stated that his wife was “fearful and did not remember things” and that he had “taken her to the doctor many times in India”.
29. The Tribunal put to the applicant the specific inconsistencies in their evidence that were of concern to it, and reiterated the relevance of the inconsistencies, to which the applicant stated that what he had said was genuine. Insofar as issue is taken with the fact that the applicant now appears to see what occurred at the Tribunal as involving cross-examination by the Tribunal, and seeks to assert that he was not aware that there would be such questioning, the Tribunal clearly informed the applicant in the hearing invitation that the hearing was an opportunity for him to give evidence and present arguments to the Tribunal relating to the issues arising in relation to the decision under review.
30. The information provided to the applicants advised that the Tribunal may take evidence from other persons. Both applicants responded to the response to hearing invitation, indicating that they would attend the Tribunal hearing. In these circumstances it was open to the Tribunal, being inquisitorial, to conduct the hearing in the manner in which it appears that it did, including questioning the applicant husband and the applicant wife about aspects of their claims that were the basis for the application for a protection visa. The claim that the applicant now makes that he was not aware that he would be questioned, or more particularly, that his wife would be questioned, is not such as to establish jurisdictional error in the circumstances of this case. This first aspect of the application is not made out.
31. It was also claimed that the applicant and his wife took an oath from religious faith. The solicitor for the first respondent understood this claim as relating to taking an oath from religious “fear”. However it is interpreted, it was not addressed in oral submissions and does not in any event disclose any arguable jurisdictional error. Insofar as it may be taken as an assertion that the applicants gave evidence before the Tribunal under oath and that therefore should be believed, credibility is a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). Findings of fact are a function of the primary decision-maker and to the extent that this may be an attempt to cavil with the factual findings of the Tribunal, this does not establish jurisdictional error.
32. I also note that the Tribunal accepted that the applicants were of the faith to which they claimed to belong and considered that aspect of their claims as well as the claims based on events which they said had occurred to them in India. This aspect of the application is not made out.
33. The third ground or aspect of the ground is “didn’t allow me to interrupt between when interviewing my wife.” Again, the only evidence of the Tribunal hearing is the Tribunal reasons for decision. There is nothing in the Tribunal reasons for decision to support any claim that the applicant husband sought to interrupt while the Tribunal was taking evidence from his wife.
34. Section 427(6)(b) of the Act provides that a person appearing before the Tribunal to give evidence is not entitled to examine or cross-examine any other person appearing before the Tribunal to give evidence. While the Tribunal has a discretion to permit cross-examination (SZEQH v Minister for Immigration and Citizenship (2008) 172 FCR 127; [2008] FCA 1474) in this case there is no evidence that the applicant sought to cross-examine or to interrupt while his wife was being questioned by the Tribunal such as to give rise to any obligation on the Tribunal to consider whether it was appropriate to allow such a course of conduct. This ground is not made out.
35. In oral submissions today the applicant husband, who also spoke for his wife, stated that he tried to get proof from India and was not able to get it. It emerged that his concern in this respect was that he claimed he needed more time to provide supporting documentation to the Tribunal. He took issue with the fact that at the Tribunal hearing he had been given only until 4 March 2011 to submit further evidence.
    He appeared to complain, in effect, that he should have been given more than a week to provide further information.
36. As set out above, it is apparent that in the Tribunal hearing, the Tribunal put matters to the applicants pursuant to s.424AA of the Migration Act and in the course of doing so indicated that they were entitled to seek additional time to comment on or respond to the information. It is not clear from the Tribunal’s account of the hearing whether the applicants sought additional time to comment on what was put to them (because in fact they responded at the hearing to the issues that were raised). The Tribunal reminded the applicant that he was entitled to seek additional time to provide further information. This appears to be a suggestion that he was entitled to seek additional time to comment or respond to the information put under s.424AA of the Act. By so advising the applicants, the Tribunal met its obligations under s.424AA(b)(iii) of the Act. If the applicant seeks additional time to comment on or respond to the information, the Tribunal must adjourn the review if it considers that the applicant reasonably needs additional time to comment on or respond to the information (s.424AA(b)(iv)). The applicant is recorded as having stated that he wished to “submit evidence and ‘proof’ particularly in relation to his wife’s defective memory”.
37. It is notable that the Tribunal also recorded that in the course of the hearing the applicant had claimed that his wife had seen a doctor on a number of occasions in India, when he addressed inconsistencies between his evidence and that of his wife. The Tribunal considered the applicant’s request for additional time to obtain documents from India. It had regard to the fact that it was of the view that since the lodgement of his application for a protection visa (in July 2010) the applicant had had ample opportunity to provide additional evidence in support of his case. Nonetheless, the Tribunal allowed the applicant until 4 March 2011 on the basis that even if the foreshadowed information was to come from India, this was sufficient time as it was “reasonable to assume that the applicant would be able to obtain documentation from India reasonably quickly by relying on electronic and telephone communication”. The Tribunal recorded that the applicant agreed to provide his supporting evidence by 4 March 2011.
38. Insofar as the applicants today purported to take issue with this account of what occurred at the Tribunal hearing, the applicants had the opportunity to put evidence before the court by way of a transcript of the Tribunal hearing. The applicants attended the directions hearing on 12 May 2011 at which they agreed to orders that they file and serve any affidavit containing additional evidence, including any transcript of the Tribunal hearing, by a stated date. No such transcript was filed. The contentions which the applicant today makes about what occurred at the Tribunal hearing do not establish his claims.
39. In any event, it is clear that the Tribunal considered and allowed the applicants time to provide further evidence until 4 March 2011. Moreover, while the applicants wrote to the Tribunal on 4 March 2011, they did not at that stage seek further time, or provide an explanation for their inability to provide the evidence, particularly in relation to the wife’s condition. Rather, the applicants simply stated that they were unable to receive additional documents for their benefit from India, and the wife was “really depressed from a years” (sic).
40. Insofar as the applicant husband appeared to contend at the hearing that his wife’s problems may have only arisen at the time of the Tribunal hearing, that is contrary to what he is recorded as having told the Tribunal and contrary to the information he provided to the Tribunal on 4 March 2011.
41. The applicants did not seek any further time to provide information and their letter of 4 March 2011 cannot be taken as an implicit request for further time. No explanation was provided for any inability to provide documentation within the time allowed. It cannot be said that the Tribunal failed to meet its obligations pursuant to s.424AA of the Act or that it otherwise failed to accord the applicants procedural fairness, or fell into jurisdictional error in the manner in which it considered his request at the hearing for additional time to provide further information (whether that is seen as a request for additional time to respond to the s.424AA information or an opportunity to provide other supporting documentation to the Tribunal). No jurisdictional error is established on this basis.
42. The applicant also claimed he was not aware that the Tribunal would ask his wife questions. As set out above, the Tribunal invitation to the hearing was clearly given to both the husband and the wife. Both the applicant husband and the applicant wife accepted that invitation and attended the hearing. The applicant husband’s submission that his wife would not have given evidence had he known what would have occurred is not such as to establish jurisdictional error on the part of the Tribunal.
43. I note for the sake of completeness that while the applicant did not suggest that there was any failure by the Tribunal to comply with its procedural obligations under the Migration Act, in oral submissions the solicitor for the Minister addressed the Tribunal’s compliance with s.424AA of the Migration Act by way of meeting its obligations under s.424A of the Act. It is apparent that the Tribunal put to the applicant for comment both information in his visitor visa application and also more pertinently, as it clearly was relied upon, information consisting of aspects of the applicant wife’s evidence given at the hearing (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24). It has not been established that there was any failure by the Tribunal to comply with s.424A of the Migration Act.
44. The solicitor for the Minister also addressed the possibility that the applicant intended (by the claims that he raised) to contend that his wife was not fit to attend or participate in the Tribunal hearing. Insofar as he may have intended to make such a claim, there is no evidentiary basis to support it. This is not a case where there is medical evidence before the Tribunal or the court in relation to the mental or physical fitness of the wife to give evidence.
45. Such an issue was only raised by the applicant in response to the Tribunal putting to him inconsistencies between his evidence and that of his wife. The Tribunal gave him the opportunity to put further evidence before it after the hearing when he claimed that he wished to submit evidence and proof particularly in relation to his wife’s defective memory. The applicants did not provide such further information within the time given by the Tribunal. There is no basis in the material before the court for any claim that the wife was not afforded the hearing required under s.425 of the Act by virtue of her mental condition.
46. The Tribunal specifically considered this possibility in response to the applicant’s claim that his wife was fearful and did not remember things and had been taken to the doctor many times in India. It referred to the absence of medical evidence and also to its observations of the wife at the hearing and the absence of any sign or indication in the manner in which she gave evidence to suggest that she was suffering from memory deficiencies or any form of mental or physical illness. The Tribunal did not accept that the discrepancies in the applicants’ evidence were due to the wife’s alleged faulty memory. It is clear from the Tribunal reasons for decision that no concern was otherwise raised in relation to the wife’s ability to participate effectively in the Tribunal hearing. Insofar as any claim is intended to be raised in these proceedings that the wife was not fit to appear, it is not established on the evidence before the court.
47. As no jurisdictional error has been established on any of the bases contended for by the applicants, the application must be dismissed.
48. The applicants have been unsuccessful, and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicants should meet the costs of the first respondent. The applicant husband told the court that he could not afford the costs. However his lack of funds or impecuniosity is not a reason for departing from the normal principle, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Date: 28 September 2011