NAYZ v Minister for Immigration
[2005] FMCA 1623
•4 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAYZ v MINISTER FOR IMMIGRATION | [2005] FMCA 1623 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958, s.424A |
| Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 SAAP v Ministerfor Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Minister for Immigration & Multicultural Affairsv Al Shamry [2001] FCA 919 M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 |
| Applicant: | NAYZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 465 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the amount of $4,050.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG465 of 2004
| NAYZ |
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 10 December 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia in February 2003. He applied for a protection visa and claimed to have a well-founded fear of persecution because of political opinion. He made a number of claims in a statutory declaration attached to his protection visa application, in particular that he was an active member of the Kerala Democracy Movement (the KDM) which was said to be a part of the Communist Party.
He claimed that he was involved in political activities as a member of the party and was very much involved in politics and that such activities gave him both friends and foes. He made particular reference to events in 1995 when the Kerala Government offered a road tender contract. All the political parties were involved, but the leader of the BJP offered the road tender work to the BJP. There was a protest and the BJP leader came to the applicant’s house and asked him to stop the protest. He claimed that he was not stopped and that a week later the sub-collector involved with the road tender contract was murdered.
He claimed that the next day the police came to arrest him, took him to the police station, held him in gaol for three days and tortured him and that he was taken before a local court and sentenced to gaol without bail. Politicians visited him and told him that they would assist him. He did not believe this and in fact claimed that witnesses were set against him. He was released after three months. He claimed he lost his business, his family was deprived and he spent lots of money for court fees and lawyers. He also claimed local rowdies obtained money from local politicians and created problems for him attending his shop every day and smashing items in the shop.
The applicant claimed that the police did not assist with a complaint he made. He claimed “that if they have any problem from the politicians they came to arrest me and put me in gaol for three or four days”. He also claimed not to get a response to a telex to the Prime Minister and President. He claimed that subsequently, on 3 February 2002, rowdies came to his shop and attempted to kill him. When he complained the police did not help him but instead arrested him and put him in gaol. He claimed they filed false cases against him (that he was trying to kill political leaders), held him in custody for three days and tortured him. He was then sent to the local court and sentenced to two months prison after which he was released on conditional bail requiring him to report to the police station. He claimed that if he returned to India he would be tortured and killed by the police and Congress people.
The application was refused and the applicant sought review by the Tribunal. In his application for review he foreshadowed that he would send reasons for making the application. A three page handwritten document was submitted, dated 18 September 2003. It commences by stating “I ..stress my statutory declaration points in view with my forthcoming Tribunal [hearing].” It reiterates and elaborates on points made in the original protection visa application. The applicant attended a hearing before the Tribunal.
In its reasons for decision the Tribunal set out the claims made by the applicant to the Department, the Tribunal and the oral evidence given at the hearing. It accepted that the applicant had travelled to Australia on an Indian passport and that he was a national of India. However it found the applicant was not a credible witness. It noted that many of the key aspects of his testimony were simply not plausible, that some of his key claims were vague, general or not sufficiently detailed to be believable and that some of his evidence was evasive or exaggerated. There were said to be a number of material contradictions not explained to the Tribunal's satisfaction. Some of the applicant’s claims were at odds with independent country information and some of his demeanour cast doubt on his credibility. The Tribunal found that his claims were not credible and did not accept most of them. It set out reasons for this finding.
The Tribunal first listed the claims that it accepted as plausible, including the applicant's birth and departure from India on a valid passport issued in 1999 his own name which he had no difficulties in obtaining, and that he had been issued with a prior Indian passport in 1989. It also accepted some other family details and that the applicant had travelled outside India in March 2002 and that from 1993 until 2002 he worked at a TV shop in Calicut. It did not accept any of the other claims made by the applicant. The Tribunal observed that at the heart of the matter was the applicant’s claim in his statutory declaration that he was a member of the Kerala Democracy Movement and that, because of his affiliation with this organisation and his activities in support thereof, he faced the risk of Convention related persecution. However, for reasons which it gave, the Tribunal did not accept the applicant's core claim of membership of the KDM and found that it followed that it did not accept the rest of his claims in relation to his alleged involvement with the KDM.
The Tribunal had regard to the fact that (despite claiming active involvement in a Maoist organisation for some 10 years) at the hearing the applicant had demonstrated a very poor knowledge of matters such as Maoism, Marxism and Socialism and that particular aspects of his evidence about his involvement in the KDM and activities were vague. The Tribunal also had regard to the absence of any corroborative documentation as to membership of the KDM despite the time that the applicant had to provide such documentation.
It found that overall the kind of knowledge the applicant had of Maoism, Marxism and Socialism and the KDM was not consistent with an individual who purported to have been regularly involved in the organisation for a decade, to have regularly attended KDM meetings and to have been arrested and detained in connection with KDM activities. The Tribunal’s finding that it did not accept that the applicant was in fact a member of the KDM was strengthened by its inability to locate any information about the KDM in independent information including information from the Communist Party of India (Marxist), the organisation of which the KDM was said to be part.
It followed from this conclusion that the Tribunal did not accept the rest of the applicant's claims about involvement in the KDM. However the Tribunal went on to detail other difficulties with aspects of the applicant's claims about his activities. It did not accept as plausible that the applicant was able to leave India legally if the authorities were interested in him and if he had been arrested a number of times as claimed, fingerprinted, photographed and released on condition of signing in at a police station every day. It noted that he travelled on a passport issued in his own name with his own photograph and that there was independent information as to thorough checks at Indian airports. The applicant had not commented on this issue. The Tribunal found the fact that the applicant was able to leave India legally was consistent with the view that at that time he was not of interest to the authorities. Similarly, based on independent information it did not accept as plausible that the applicant would have been issued with a valid passport in 1999 if his claims were true.
The Tribunal found the applicant’s statutory declaration to be vague, general and implausibly lacking in detail. It did not accept as plausible that if a Calicut sub-collector was murdered, this matter would not be reported in newspapers or documented, given that political murders are usually reported in the Indian media. It did not accept this claim.
The Tribunal also had regard to vagueness of the applicant’s evidence in relation to his claimed arrest in 1995 and the consequences thereafter. It noted that the applicant raised fresh claims in the Tribunal hearing (in particular, a claim of hospitalisation). The Tribunal found this to be a recent invention and did not accept it. It did not accept that if the applicant was detained in 1995 it was plausible that he would wait until February 2003 before leaving India if he had a fear of persecution especially as he had held a passport in 1989. The Tribunal found that the fact that the applicant had waited so long before leaving India was consistent with the view that at the time of departure he did not have a subjective fear of persecution.
The Tribunal also found that it was not plausible that the applicant did not obtain copies of court documents to support his claims given that he had the assistance of lawyers representing him. It did not accept his claims with respect to an alleged arrest. The Tribunal found his claims in relation to local rowdies to be an exaggeration and that there were contradictions in those claims not satisfactorily explained. The Tribunal found the claims in relation to his subsequent arrest and gaoling in 2002 to be vague. It did not accept such claims. It also found that there was not a satisfactory explanation for inconsistencies in relation to the timing of the claimed arrest. The Tribunal detailed other concerns about the plausibility and vagueness of the applicant's claims about what had occurred. It noted that the applicant had travelled to Malaysia and Singapore in March 2002. It did not accept it as plausible that he would have returned to India if he had a fear of persecution. Nor did it accept new claims raised by the applicant for the first time at the hearing. It also noted that on a number of occasions during the Tribunal hearing there were issues in the manner in which the applicant gave evidence which raised concerns in relation to his evasiveness and demeanour. Although the Tribunal acknowledged this was only one part of the assessment of credibility some doubt was cast on the applicant’s credibility by his demeanour, delays and evasiveness.
The Tribunal concluded that, in the light of the implausibility of a number of key aspects of the claims, the material contradictions in the testimony and lack of adequate explanation, the contrary independent evidence, evasiveness, exaggeration, vagueness, generality and lack of sufficient detail and the applicant's demeanour, key aspects of the claims and testimony were not credible. It found that the applicant was not a credible witness. On this basis it was not satisfied that the applicant had a well-founded fear of persecution due to his political opinion or for any other Convention reason.
The applicant sought review by application filed on 5 January 2004. In that application he raised five generally expressed grounds: that there was no reason why the Tribunal rejected the applicant's claim to be a KDM member; that the airport checks are not thorough in India as stated by the Tribunal and there are many instances where many people have slipped from the country like the applicant; that a passport could be obtained in India without any problem and this cannot be a reason to say the applicant is not in the list of the police; that the applicant wanted to stay in India for his family, so he waited a long time after getting a passport and when the situation went out of control, he fled the country; and that the applicant was mentally blocked at the time of the hearing in the Tribunal because of nervousness, so he took time to answer questions and that may not be the reason to say that the applicant was not truthful.
In essence, these grounds take issue with the merits of the Tribunal decision. Merits review is not available in this Court. Moreover, credibility is a matter for the Tribunal par excellence (see Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407, and the Tribunal's findings in that respect were open to it on the material before it for the reasons that it gave.
Insofar as the applicant takes issue with the conduct of the Tribunal hearing, there is nothing in the material before the Court to establish any jurisdictional error by the Tribunal in the manner in which it conducted the hearing. The evidentiary basis for such claim is not established in the absence of a transcript of the hearing.
On 4 June 2004 the applicant filed a document headed ‘Additional Grounds’. The first ground in that document is that the Tribunal had not seen that the definition ‘refugee’ was applicable to the applicant. It sets out the four elements required in the definition. However this ground does not establish jurisdictional error. It has not been established that there was any error in the manner in which the Tribunal understood or applied the law in relation to the definition of ‘refugee’.
The second ground is that the applicant should have been given the ‘benefit to doubt’. Insofar as this appears to be a contention that the Tribunal should have given the applicant the benefit of the doubt in assessing his claims, it is for the applicant to establish his case and to put material before the Tribunal. As was stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510, proceedings before the Tribunal are inquisitorial. It is for the applicant to advance whatever evidence or arguments he wishes to advance in support of the contention that he or she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. As Hely J stated in SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 [36]:
The Tribunal is not required to engage in an uncritical acceptance of any and all allegations made by an applicant, and is not required to accept a claim merely because positive evidence to the contrary is absent.
The applicant's next contention is that the Tribunal, having accepted eight points as stated in its decision, could also have accepted the other facts. Again, this does not establish jurisdictional error. As indicated, the Tribunal's findings in relation to credibility of aspects of the applicant's claims were open to it on the material before it, for the reasons that it gave. The fact that it accepted some of the applicant's claims in relation to his background and personal circumstances did not compel it to accept the other claims that the applicant made.
The fourth ground is that the applicant was nervous and in a very much worried condition, therefore he could not answer the questions properly. However, there is nothing in the material before the Court to establish that the Tribunal erred in any way in relation to its obligation to invite the applicant to a hearing, or in the conduct of that hearing.
The fifth ground is that the Tribunal was not correct in stating that the claims were recent inventions. There is no elaboration of this contention. It has not been established that the Tribunal erred in the manner in which it considered that some aspects of the applicant's claims were raised at a late stage in the review process, and in that sense were recent inventions.
The final ground, that the Tribunal was not correct in concluding that the claims were not credible, takes issue with the merits of the Tribunal decision and the fact-finding process and does not establish jurisdictional error.
Quite properly, the legal representative for the respondent raised the possible application of the decision of the High Court in SAAP v Ministerfor Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, in conjunction with section 424A of the Migration Act 1958 and the Full Court of the Federal Court decision in Minister for Immigration & Multicultural Affairsv Al Shamry [2001] FCA 919. However in this instance there is a short answer to the possible application of section 424A insofar as the Tribunal relied on aspects of the protection visa application.
In the handwritten submission provided to the Tribunal dated 18 September 2003, the applicant stressed the points made in the statutory declaration annexed to his protection visa application. In that sense the information in the statutory declaration was information provided by the applicant to the Tribunal. Hence it is within the exception in section 424A(3)(a) to the obligation under section 424A(1). See M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131.
A separate issue arises in relation to the Tribunal's reliance on the fact that the applicant was first issued a passport in 1989. The applicant provided a copy of his passport to the Department. However I accept on the basis of the material annexed to the affidavit of 4 November 2005 by Kathleen Mary Crawley, the solicitor with carriage of the matter for the respondent, that a copy of that passport was also provided by the applicant to the Tribunal on 30 October 2003. The passport issued in 1999 is marked with a stamp that the applicant had previously held a passport issued in 1989. Hence, insofar as there was reliance placed by the Tribunal on the applicant's holding of such passports, again that is information provided by the applicant to the Tribunal.
Moreover, the essential finding by the Tribunal, which provides the basis for the decision, is that it did not accept the applicant's core claim of membership of the KDM based on his lack of knowledge of the applicant of the underlying philosophies of Maoism, Marxism and Socialism and the KDM and the absence of any independent information about the KDM in the sources consulted by the Tribunal. It followed from the finding that the Tribunal did not accept the core claim of membership of the KDM, that it did not accept the rest of the applicant's claims in relation to his alleged involvement in and activities with the KDM and the claimed consequences.
In these circumstances no jurisdictional error has been established. The decision of the Tribunal is a privative clause decision and the application for review must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks that he pay costs in the sum of $4,050. The applicant indicates that this is a bit too much. This is a matter in which there have been a number of previous appearances because the matter was transferred from the Federal Court and the applicant did not attend on the first directions hearing in this court. The solicitors for the respondent filed further evidence in anticipation of there being an issue in relation to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. In those circumstances I consider that the amount sought is appropriate. I also consider that consistent with SAAP the Tribunal should be joined as the second respondent to the proceedings.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 15 November 2005
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