MZWBO v Minister for Immigration
[2005] FMCA 268
•11 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWBO v MINISTER FOR IMMIGRATION | [2005] FMCA 268 |
| MIGRATION – Review of decision of Refugee Review Tribunal – refusal of application for protection visa – privative clause decision – findings as to credit – evidence considered and rejected by RRT – no jurisdictional error – application dismissed – costs. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454
Abebe v Commonwealth of Australia (1999) 162 ALR 1
W375/01A v Minister for Immigration for Immigration and Multicultural Affairs (2002) 67 ALD 757
Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1218
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2002] HCA 1
| Applicant: | MZWBO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1501 of 2003 |
| Delivered on: | 11 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 11 February 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the Respondent: | Ms Mcdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $5,600.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1501 of 2003
| MZWBO |
Applicant
and
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is an Indian national who arrived in Australia on a visitor visa on 13 December 2001. On 9 January 2002 he applied for a protection visa. In support of that application the applicant's agent submitted a statement by the applicant dated 6 March 2002 and a copy of a newspaper article. I note that the application itself was not contained in the court book, but the applicant took no issue with its contents as referred to in the reasons for decision of the Refugee Review Tribunal, nor likewise as to the accuracy of any references made to it in the contentions of fact and law of the respondent.
On 5 June 2002 the delegate refused the grant of a visa, and on 2 July 2002 the applicant lodged an application with the Refugee Review Tribunal (the Tribunal) for review of the decision to refuse the visa.
The applicant gave oral evidence to the Tribunal on 21 August 2003. The Tribunal had before it the Department's file which included the protection visa application, written submissions by the applicant's adviser dated 7 March 2002 and 12 April 2002 (with attachments) and the delegate's decision record. The Tribunal affirmed the delegate’s decision on 21 November 2003, that being the date upon which the decision was handed down
On 23 December 2003 the applicant commenced proceedings in this Court pursuant to section 39B of the Judiciary Act 1903 and section 475A of the Migration Act 1958 (Cth) (the Act). The applicant then filed an amended application on 21 April 2004. The applicant also relies on contentions of fact and law filed by him. The respondent filed contentions of fact and law on 3 June 2004 and relies on those contentions.
Legislation
The application for review was made after 2 October 2001, so the Tribunal's decision is a “privative clause decision” within the meaning of section 474 of the Act. Section 474 of the Act prevents the judicial review of all decisions under the Act except those vitiated by jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454).
The applicant's claim was that he was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The question of the Minister and on review, the Refugee Review Tribunal, was whether the applicant was a “refugee” as defined in the Convention being 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, is 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.
The Tribunal's reasons
The Tribunal looked to the protection visa application form of the applicant, together with a written statement dated 6 March 2002. Further, the Tribunal referred to the applicant's adviser’s submission dated 12 April 2002 and the information on the Indian Prevention of Terrorism Ordinance which was attached to that submission. The Tribunal noted the evidence given by the applicant at the Tribunal hearing which was as follows and is succinctly set out in the respondent's contentions of fact and law:
(i)The applicant could read and write English and was assisted by a lawyer to complete the visa application. He was satisfied that the information in it was correct.
(ii)The applicant was secretary of a Muslim welfare group in Muthupet which helped poor people and converted some very poor people to Islam.
(iii)The applicant joined Nadu Muslim Munnetra Kazhagam in 1996. It was a political group but also engaged in welfare activities. The leader of the group, Palini Baba, had been of adverse interest to authorities. The group was not involved in or suspected of involvement in criminal activities.
(iv)The Rashtriya Swayamsevak Sangh (RSS) destroyed the applicant's home because of his involvement in converting people to Islam.
(v)RRS supporters had attacked the applicant and destroyed his coconut estate and paddy field in 1996. They beat him but did not cause physical injuries. He had known all four assailants and had known the name of one of them. Three of his friends witnessed the assault and one was injured when he tried to help him. They complained to police who detained one of the assailants for two days but did not charge him. He did not lodge a complaint with more senior police because they could also have been bribed.
(vi)The applicant's complaint to police led to further attacks. He was attacked by four RSS supporters when he and two friends were travelling slowly to Najapatnum. They did not lodge a complaint with police because the police had not done anything about the earlier assault. Neither he nor his friends could identify the assailants on this occasion.
(vii)The RSS mistreated him by an attack on his shop in Tanjavur in or about September 1998. He lost his business but was able to rebuild it. He agreed that he had been continuously engaged in business between January 1994 and November 2001.
(viii)The RSS now wanted to kill the applicant because they had attacked him on three occasions.
(ix)The applicant did not travel to Australia until December 2001 because he went into hiding after his shop was attacked, and his brother looked after his shop. He would go home at night and not go out.
(x)When it was put to him the RSS could easily have found the applicant at home, he said that his brother would tell him when the RSS had meetings or were otherwise engaged and he would return home. He had been at home for a total of about one month.
Significantly it was put to the applicant and as contained in the reasons that the applicant had given inconsistent evidence to the Tribunal in significant respects. The applicant responded by saying that he had memory problems because of marriage difficulties. The Tribunal asked the applicant why he had claimed in his protection visa application that the police suspected him of being a terrorist. The applicant responded that he could not remember what he had said before. When asked why he had not mentioned this before, the applicant replied it was because he was confused.
The Tribunal put very clearly to the applicant that it was having difficulty accepting his claims. The applicant responded that the police and the RSS were one and the same and that he was afraid to return to India.
The Tribunal noted its finding that the applicant was not a credible witness. The Tribunal in its reasons said:
His evidence at the hearing was inconsistent and inherently unconvincing in significant respects. In assessing the applicant's credibility, the Tribunal has had particular regard to the comments of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 162 ALR 1 (at 191):
... the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an application for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
The Tribunal then went on to detail its findings in respect of integers of the applicant's claim, noting its reasoning for finding the applicant to be not a credible witness. The Tribunal said:
In his protection visa application, the applicant referred to his membership of the Tamil Nadu Muslim Munnetra Kazhagam and claimed that the police had sought to arrest and prosecute him because they suspected he was involved with Al-Ummah and the Kashmiri Separatist Organisation, both terrorist organisations. He did not refer to this claim at the hearing. When reminded of this claim at the end of the hearing he responded unconvincingly that he had memory problems. He then appeared to be making up evidence when he added that the police had suspected him of involvement with terrorists as a result of information given to them by RSS supporters.
In his protection visa application, the applicant had also claimed that the police had arrested him, assaulted him and detained him for two days after communal riots between Hindus and Muslims at an unspecified time after 12 December 1991. He did not refer to this at the hearing despite making several references to either his experience with the police, or his attitude towards them.
In his protection visa application, the applicant claimed that RSS supporters attacked him on 13 April 1992 when he was driving to Nagapatnam; and that his property was destroyed on the following day by arsonists. However, at the hearing he gave evidence that RSS supporters had destroyed that property in 1996 - and that it was also in 1996 that RSS supporters had attacked him when he was driving to Nagapatnam.
The Tribunal said further:
The applicant's evidence was inconsistent and inherently unconvincing in relation to an attack on him at his shop by the RSS in September 1998. Initially, he said that he lost his business as a result of the attack but had been able to rebuild it. However, he then said that he had been in hiding between September 1998 and December 2001. When asked to provide details of his experience of being in hiding over that period, he responded as though he were making up evidence as he was going along.
On the basis of the Tribunal's assessment of the applicant's credibility, it does not accept that the Indian authorities suspected he was associated with terrorists, or sought to persecute or prosecute him for that reason. It does not accept that the police arrested, detained or mistreated him following communal riots between Muslims and Hindus. It does not accept that RSS supporters assaulted him in 1992, 1996, or 1998; nor does it accept that he has been of adverse interest to the RSS for any reason.
Further, the Tribunal does not accept that the applicant genuinely fears he will be persecuted by the RSS or BJP militants, or by the Indian authorities, for reasons of religion or political opinion.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted by the RSS or BJP militants, or by the Indian authorities, for reasons of religion or political opinion.
Consideration
The amended application for review dated 21 April 2004 sought review of the Tribunal's decision on the following unparticularised grounds:
(i)The RRT misconstrued and misapplied section 36(2) and section 65 of the Act.
(ii)There was a failure to comply with section 418 of the Act.
(iii)The RRT failed to comply with sections 424, 424A, 424B and 424C of the Act.
(iv)The RRT failed to comply with section 430 of the Act.
(v)The RRT denied the applicant procedural fairness.
(vi)The RRT was biased.
In the applicant's contentions of fact and law and on the hearing which proceeded before the Court this day, the applicant sought to rely on the grounds as set out in paragraph 11(a), (b) and (c) of the applicant's contentions. In essence the applicant argued that the Tribunal erred jurisdictionally in disbelieving the applicant in the absence of probative grounds and evidence. The applicant argued that the Tribunal committed jurisdictional error where it did not have before it evidence that would refute the claims made by the applicant. The applicant went on to submit that the Tribunal, in relying on four instances wherein it found the applicant to not be a credible witness, failed otherwise to look at the substantial claims the applicant had made in his application and evidence. The applicant further argued that there was no country information to inform the decision of the Tribunal. The applicant otherwise did not pursue other grounds as set out in its amended application which had included an allegation of bias on the part of the Tribunal.
The applicant sought to rely upon a decision in W375/01A v Minister for Immigration for Immigration and Multicultural Affairs (2002) 67 ALD 757 which involved a factual scenario which I find distinguishable from the present. The Full Court of the Federal Court comprising Lee, Carr and Finklestein JJ was considering whether in that instance the Tribunal had refused to receive relevant and probative evidence then available to it. The Full Court found that the Tribunal had failed to perform the duty imposed on it by the Act to decide the appellant's case on the material put to it and by conducting an appropriate inquiry thereon. In the present proceedings the Tribunal has considered the evidence placed before it by the applicant but rejected that evidence on the basis that it did not establish what it was the applicant asserted.
In its reasons the Tribunal refers to the delegate's decision record being before it. This indicated the secretary's compliance with section 418(2) of the Act. The Tribunal has not taken into account any adverse country information as is clear from its reasons, let alone done so without giving the applicant an opportunity to respond to such information.
It is clear the decision of the Tribunal is founded on the adverse conclusion it draws as to the applicant's credibility. Although the Tribunal did raise very squarely with the applicant the inconsistencies in his evidence and informed the applicant that it was having difficulty accepting his claims, the Tribunal is not required to raise with the applicant its assessment of his credibility. As was stated by Emmett J in Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1218 at [19]:
However, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. That is to say, the Tribunal is not required to give an applicant particulars of its thought processes prior to the making of an adverse decision. It is for the applicant to advance whatever evidence or argument he wishes to advance and it is for the Tribunal to decide whether his or her claim has been made out, Abebe v Commonwealth (1999) 197 CLR 510 [187]
A finding as to whether the applicant should be believed in his claims is the function of the Tribunal and not of this Court. As stated by McHugh J in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2002] HCA 1 at [67]:
…a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
In conclusion, I find the Tribunal has fulfilled its task in that it did state in its reasons its failure to accept evidence going to the material issues in the proceedings and set out its reasons for the finding that the applicant was not a credible witness. The Tribunal made findings of fact on each of the integers of the applicant's claim and then ultimately on whether the applicant had a well-founded fear of persecution for reasons of religion or political opinion.
The application must be dismissed and the applicant pay the respondent's costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 11 February 2005
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