NANM v Minister for Immigration - [2004] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANM v MINISTER FOR IMMIGRATION

[2004] FMCA 392

MIGRATION – Application for review of Refugee Review Tribunal decision – whether credibility findings open to Tribunal – whether lack of procedural fairness – no jurisdictional error.

Migration Act 1958

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407

Jia Le Geng v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556

Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425
Kioa v West (1985) 159 CLR 550

Applicant:

NANM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ876 of 2003

Delivered on:

20 May 2004

Delivered at:

Sydney

Hearing date:

20 May 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ876 of 2003

NANM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 March 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia on 3 February 2002. On 28 February 2002 he applied for a protection visa. He attended an interview with the Department on 11 April 2002 and on

23 April 2002 a delegate of the respondent refused to grant the protection visa. He sought review by the Tribunal on 27 May 2002. On 12 February 2003 the Tribunal provided country information to the applicant upon which he would be given an opportunity to comment at his hearing. A hearing was held on 18 February 2003.
The applicant claimed to fear persecution in India essentially on the basis that he was an active member of the Communist Party of India (Marxist Leninist) (the CPI(ML) and the People's War Group (PWG) and that because of his affiliation with such organisations and his activities in support of them, he faced a risk of Refugees Convention related persecution.
The applicant claimed, among other things, that from mid-1998 to early 2002 he was an active member of the CPI(ML) and that he was imprisoned and charged on three occasions - in 1999, 2000 and 2001 - and that outstanding cases were pending. He claimed to fear that the authorities would arrest him for his association with the CPI(ML) and that he would be tortured and killed. He claimed that a total of four false charges had been filed against him to make him disassociate himself from the CPI(ML) (the last in December 2001 being associated with the murder of a landlord). He said that he had hidden to avoid arrest and then decided to leave India.
In his protection visa application he indicated that he would try to provide legal documentation to establish his imprisonment in India. He claimed that he had been able to leave India because a friend had arranged safe passage through airport clearance.
The Tribunal reasons for decision indicate that the Tribunal member raised a number of issues and the substance of independent country information with the applicant in the hearing. It questioned him in relation to his knowledge of the organisations to which he claimed to belong and the underlying philosophies. According to the Tribunal reasons for decision it put Tribunal concerns in relation to aspects of his evidence and inconsistencies to the applicant for comment.
The Tribunal affirmed the decision not to grant the applicant a protection visa. The decision turned on its adverse credibility findings. In essence, the Tribunal found that in light of the implausibility of many key aspects of the applicant's claims, the fact that there were many material or important contradictions between his testimony and his claims which were not explained to its satisfaction and since some of his key claims were at odds with independent evidence, key aspects of the applicant's claims were not credible. It found that he was not a credible witness.
The Tribunal accepted plausible claims not contradicted by previous statements but did not accept any of the other claims presented. It was not satisfied that the applicant had a well founded fear of persecution due to political opinion or for any other Convention reason.
In particular the Tribunal rejected his claims to be a member of the CPI(ML) and the PWG and about his activities in that organisation. The Tribunal had a regard to a number of factors, including the poor knowledge demonstrated by the applicant of the underlying philosophies and of the activities of the organisations and his inconsistent attitude to central aspects of the programme and practice of such organisations. It accepted that the applicant displayed a certain degree of knowledge of the workings of the organisations but there were a number of unexplained material contradictions and a lack of knowledge of certain basic facts not explained to the Tribunal’s satisfaction. These concerns were raised with the applicant. The Tribunal considered and rejected the applicant’s explanations for the lack of knowledge he displayed as illogical, inconsistent or unsatisfactory.
It found the level of knowledge demonstrated by the applicant of Maoism, Marxism, socialism, the CPI(ML) and the PWG not to be consistent with an individual who purported to have been actively involved in both organisations for more than three years. It also had regard to the applicant's background and found him to be an unlikely candidate to be a Maoist. In those circumstances, the Tribunal did not accept that the applicant was a member of the CPI(ML) or the PWG, as claimed. It went on to say that that finding was strengthened by the absence of any supporting documentation, despite the fact that the applicant had had ample opportunity to provide such material since arriving in Australia in February 2002, and despite the fact that he had claimed during the hearing that he had obtained a membership card for the CPI(ML) but left it in India.
Having rejected the applicant's core claim of membership of the CPI-ML and PWG the Tribunal did not accept any of the other claims made by the applicant. It did not accept it as plausible that he was able to leave India legally in February 2002 if the authorities were interested in him as claimed. In relation to this finding, it had regard to the applicant's explanation for his ability to depart and also to independent information. It did not find his explanation plausible, nor did it find it plausible that he would have waited until February 2002 if he had been detained on three occasions, as claimed, before finally leaving India. It also had regard to material contradictions in the evidence that he gave in relation to the circumstances and length of time in which he was detained, and the absence of satisfactory explanations for such contradictions and implausibilities and to the absence of supporting documentation in relation to the claimed charges. It did not accept as plausible the applicant’s explanation for the failure to obtain such documents from one of the lawyers in India. Nor did the Tribunal accept an earlier claim in relation to a threat to the applicant by a government Minister in charge of cooperatives, because of the absence of any subsequent relocation by himself or his family.
Nor did the Tribunal accept as plausible the applicant's claims in relation to being tortured in police custody, have regard to the fact that he was not hospitalised and did not require medical attention. It did not accept that, even if there were no external symptoms, he would have seen no one in response to such alleged torture or have taken some action in that respect, such as relocation or going into hiding. The Tribunal also had regard to the fact that the applicant remained at the same address through the period during which he claimed that he had been arrested and tortured on more than one occasion.
The application for review filed on 9 April 2003 raises five general grounds, none of which are particularised. The applicant filed written submissions and also addressed a number of issues in the hearing today. Parts of the written submissions seek merits review of the Tribunal's credibility findings. Merits review is not available in the Court. Credibility findings are a matter for the Tribunal par excellence:Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407. The Tribunal's credibility findings were premised on factors explained in detail in its reasons. While, as Counsel for the respondent conceded, not every matter taken into account in the credibility assessment would necessarily be a matter that everyone would think was important, such issues were matters for the Tribunal. As was said in Kamal v MIMA [2002] FCA 618 at [36] it is not for the Court “on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal”. Overall there is a coherent basis for the Tribunal credibility findings. There were significant inconsistencies and unexplained implausibilities in the applicant's evidence and the Tribunal findings were open to it on the material before it.
The applicant submitted that his claims had been rejected by the Tribunal because he had not provided supporting documentation and that this was not fair. I have considered this claim and also whether any of the material before me suggests any lack of procedural fairness in the Tribunal reasons or procedures.
In relation to his supporting documentation, as noted earlier, the applicant indicated in his protection visa application that he would try to provide documentation to establish his imprisonment and charges. He also told the Tribunal that he had a membership card for the CPI-ML but had left it in India. The Tribunal reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicate that there was some questioning in relation to the possible provision of documentation and that the Tribunal put to the applicant its concerns about the absence of legal documentation to establish the claimed detention. He explained that lawyers employed, it seems, or instructed by the PWG, were dealing with the case in India and that he could not obtain the papers without being present in person. There was a further discussion about the possibility of him contacting the PWG or a lawyer. He explained that he might have problems from the PWG if he did contact them. At the end of the hearing the applicant was given the opportunity to provide further information before the decision was made.
The Tribunal findings in relation to the applicant's membership, or lack of membership, of the CPI-ML and the PWG did not turn solely on the absence of documentation, but also on his level of knowledge as well as implausibilities and inconsistencies in the applicant's evidence. The findings in this respect were, however, strengthened by the fact that, despite ample opportunity, the applicant had failed to provide any documents to support his claims that he was a member of those organisations. Similarly in considering the claimed charges and detention the Tribunal had regard to implausibilities and inconsistencies in his evidence as well as to the lack of a plausible explanation as to why he did not have documents in relation to the charges.
Further, the absence of supporting evidence or documentation of medical treatment in relation to the mistreatment and torture that the applicant said he had suffered was taken into account by the Tribunal consistent with its assessment that if the applicant had been tortured for two weeks as claimed then it would seem likely that there would be a need for medical attention.
No lack of fairness is apparent in the manner in which the Tribunal considered the issue of supporting documentation; either in relation to the charges, the membership of the organisations or the absence of medical treatment. The inferences that the Tribunal drew in this respect were open to it to support the findings that it made.
The applicant claimed that the Tribunal was biased against him or had prejudged his application. It was contended that this was apparent in the method in which the Tribunal member questioned him in the course of the Tribunal hearing. In particular the applicant contended that the Tribunal member asked him questions and continued to ask him questions until he was unable to provide the right answer, and that if he did provide the answer, the Tribunal went on to ask for further clarification. The applicant claimed that it was apparent that the Tribunal member was unhappy with many of his answers and had noted where the applicant did not provide an answer. An applicant who alleges actual bias has a heavy onus. In this case, the only evidence before the court of the conduct of the hearing is the Tribunal reasons for decision. Such claims do not establish that the Tribunal had prejudged the applicant's application, or, indeed that there was apprehended bias (see Jia Le Geng v MIMA (1999) 93 FCR 556 and RRT, Re; Ex parte H (2001) 179 ALR 425).
The Tribunal has an inquisitorial role. It is appropriate for the Tribunal to put to the applicant its concerns in relation to critical matters (Kioa v West (1985) 159 CLR 550), to raise its concerns with the applicant and to test, as it did, the applicant's knowledge of the organisations to which he claimed to have belonged and the underlying philosophies. On the evidence before me the procedure adopted by the Tribunal as described in the reasons for decision does not establish that there was any actual or apprehended bias or lack of procedural fairness.
The written submissions also challenge the factual findings and the inferences drawn by the Tribunal. The applicant provided a further explanation for variations in his replies on the basis of his mental worries and other circumstances which, he submitted, could not be taken for quashing his credibility. These claims do not establish jurisdictional error. It is apparent from the Tribunal reasons for decision that the extent and nature of matters (such as inconsistencies and implausibilities) taken into account by the Tribunal go beyond matters which might be explained by the understandable concern and nervousness of an applicant in a Tribunal hearing.
The applicant took issue with the Tribunal consideration of the fact that he had obtained a passport, pointing out that that was before his problems began. However it appears from the Tribunal reasons that while this was raised with the applicant in the hearing, the Tribunal findings are not based on the fact that he held a passport. His explanation in relation to the holding of a passport was accepted by the Tribunal. However it expressed concern about, and to some extent based its findings on the fact that the applicant had been able to leave India without a problem. It did not accepting his explanations in that respect.
The applicant also took issue with the Tribunal finding that he was an unlikely candidate to be a Communist. As I have already indicated, not every matter taken into account in the credibility assessment would necessarily be one that everyone would consider important, but the findings overall were open to the Tribunal on the material before it. Illogicality or a lack of reasonableness is not established reading the Tribunal decision as a whole.
The applicant took issue with the Tribunal findings in relation to his ability to leave India legally. His submissions challenge the fact finding of the Tribunal and purport to put further evidence before the Court. However the Tribunal findings were open to it on the material before it, consisting of the evidence of the applicant and also independent information in relation to the situation in India (which was raised with the applicant).
The applicant suggested generally in his written submissions and also in his oral submissions that the Tribunal member did not have the necessary knowledge to consider the position in India, it being different from the situation in Australia. He submitted that only those who had been in India for at least a year could understand Indian social life, government administration and the judiciary, and that the Court should issue a general direction to the Tribunal that members dealing with cases relating to Indian applicants for refugee status should have lived in India for at least a year. However the Court's role is to consider whether there is a jurisdictional error in the Tribunal reasons or procedure. The applicant's complaints in this respect do not establish jurisdictional error.
The applicant had an opportunity to comment on Tribunal concerns, and the Tribunal took those comments into account. The applicant's disagreement with the Tribunal findings of fact do not establish a jurisdictional error, nor do the claims about the Tribunal's lack of knowledge about the true situation in India. The applicant refers to a statement in the Tribunal reasons for decision in which it is stated that the member understood his reply about Maoism and Marxism incorrectly as ‘the theory of organised persons’ revolution instead of ‘the theory of organised peasants’ revolution’. There is no evidence as to what occurred in the hearing other than the Tribunal reasons for decision to establish whether or not this was an interpretation error or a typographical error in the reasons for decision. Even if it was indicative of one interpreting error in the hearing, the one claimed mis-translation is not of the magnitude or significance to the reasons of the Tribunal to establish inadequate interpretation such as to establish either any breach of section 425 of the Migration Act 1958 or any lack of procedural fairness.
The applicant contended that procedures required by the Migration Act1958 to be observed were not observed. There is no particularisation of this claim. It is not apparent that there is any such failure on the material before the Court constituting jurisdictional error, nor is any incorrect interpretation or application of the law established as claimed or that the Tribunal failed to act in a bona fide manner.
Finally, contrary to the applicant's contention, there was evidence before the Tribunal to justify it in making its decision. The evidence consisted of the evidence of the applicant, the difficulties that the Tribunal referred to in relation to that evidence as well as the independent evidence before it.
Having considered all of the material before me and the claims made by the applicant, it has not been established that there is a jurisdictional error. Accordingly, the application should be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The respondent seeks that the applicant, having been unsuccessful, pay the costs of these proceedings. The applicant seeks that the costs be reduced from the actual amount incurred, being $5,500. It is appropriate that the applicant, having been unsuccessful, should meet the costs of the respondent. It is also appropriate that costs should be fixed by the Court in an amount comparable with other matters of a similar nature and complexity.

I consider that an appropriate amount is $4,500 and that costs should be fixed in that amount under the Federal Magistrates Court Rules.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 June 2004