SZBBV v Minister for Immigration
[2004] FMCA 959
•2 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBBV v MINISTER FOR IMMIGRATION | [2004] FMCA 959 |
| MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for the Convention reasons of religion and political opinion – where applicant changed his evidence at the Tribunal hearing – where applicant’s oral evidence contradicts his claims in his written application and country information before the Tribunal – where Tribunal did not consider the applicant to be a credible witness – whether Tribunal failed to consider the definition of “refugee” fully – whether the Tribunal failed to consider information provided by the applicant – whether the findings and reasons of the Tribunal decision evidence a lack of procedural fairness or jurisdictional error. |
Migration Act 1958 (Cth), ss.91R, 91S, 430
Federal Magistrates Court Rules 2001
1951 Convention relating to the Status of Refugees
Pollacks v MIMA (2001) 195 ALR 73
Selvadurai v MIMA [2002] FCA 34
| Applicant: | SZBBV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1497 of 2003 |
| Delivered on: | 2 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 December 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
CORRIGENDUM
The reference to SZBBV in the Judgment of Federal Magistrate Raphael dated 2 December 2004 should read SZBBV, SZBBW, SZBBX and SZBBY and the reference to Applicant in the orders of the Judgment of Federal Magistrate Raphael dated 2 December 2004 should read Applicants.
I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment of Raphael FM
Associate:
Date:
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1497 of 2003
| SZBBV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter there are four applicants who are a member of a family who are citizens of India. They arrived in Australia on 24 July 2002 and on 12 August 2002, they lodged an application for a protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 September 2002, a delegate of the Minister refused to grant them protection visas and on 25 September 2002 they applied for a review of that decision.
The Tribunal noted that no separate claims were made on behalf of any other member of the family apart from the senior male member who is referred to in the Tribunal's decision thereafter as the applicant. The Tribunal interviewed the applicant and on 16 June 2003 determined to affirm the decision not to grant a protection visa. It handed down that decision on 11 July 2003.
The factual background against which the applicant claimed to have a well founded fear of persecution for the Convention reasons of religion and political opinion were that he and his family were Muslims from Mumbai where he operated a construction business. He claimed that he was at risk of persecution because he was a wealthy Muslim involved with the Samajwadi Party. The applicant claimed that between 1992 and 2002 he became a target for Hindu extremists from the BJP, the RSS and Shiv Sena. He referred to incidents in 1992 after the Babri Mosque destruction. He referred to an incident in 1994 after the Bombay Stock Exchange bomb blast.
He referred to an attack upon his home in 2001 and he referred to threats upon his life received after the Gujarat train tragedy in February 2002. He claimed he had been harassed and tortured by the police in this period and that this was because he was a senior and active member of the Samajwadi party.
The Tribunal took the applicant through all these claims and during the course of the interview, it appeared that his story changed. The Tribunal noted that first he indicated he had only been a member of the Samajwadi party for a few months before he left for Australia but then he changed the story so that he had become a member in 1992. He told the Tribunal that he was an active leader of the party but then said that he only had a minor role. The Tribunal took up with the applicant and there is found at [CB 119] difficulties it had with his statements. These are further discussed at [CB 120] and [CB 121]. The Tribunal also discussed with the applicant the possibility of his relocation given that he was a successful contractor, that he was relatively well educated and had run a successful business.
At [CB 122] the Tribunal commences its findings and reasons with the following statement:
“For the following reasons, I did not find [the applicant] to be an entirely credible witness and I do not accept that he or anyone else in his family has a well-founded fear of persecution in India for reasons of political opinion or religion or any other reason contained in the Convention.”
The Tribunal then goes on to explain that some of the statements made by the applicant were simply not credible in the light of independent country information and previous information provided by the applicant. The Tribunal notes certain inconsistencies in his story and states at [CB 124]:
“Finally, even if I am wrong and [the applicant] was attacked on other occasions and is at risk of further harm because of his religion if he returns to Mumbai, as discussed above there are some 140,000 Muslims in India. Most have good relations with the Hindu majority and they are not generally at risk of serious harm amounting to persecution because of their religion. In the circumstances, I believe that the applicant and his family could avoid the possibility of further harm by relocating to another part of the country. Furthermore, given [the applicant's] education, his ability to speak Hindi, English and Urdu and his past success in business, I believe that it is not unreasonable to expect him to do so if necessary.”
On 17 September 2004 the applicant filed an amended application in this Court. The amended application contains four grounds upon which the applicant asserts that the Tribunal fell into jurisdictional error. The first ground is that the Tribunal did not consider the definition of refugee fully. I cannot accept this assertion. The Tribunal sets out at [CB 113] – [CB 115] the definition of refugee in some detail. Although this adumbration of the definition is in familiar form, it does not mean that the Tribunal does not understand it and I think I can be fairly confident that the Tribunal did so understand Article 1A(2) of the Convention. Indeed, the whole of the Tribunal's decision shows that it sought evidence from the applicant that would enable him to be brought within that definition. It was the applicant's failure to satisfy the Tribunal that he did so that was the cause of his application being refused. In any event, the Tribunal found that even if the applicant had been a refugee within the Convention definition, he was a person who could have relocated within his own country and avoided the problems he said that he met with.
The second ground was that the Tribunal did not consider certain evidence, being newspaper clippings the applicant argued had been submitted to the delegate but did not appear in the green book and he therefore inferred had not been considered by the Tribunal. The applicant does not provide me with any evidence to establish that there were such newspaper cuttings before the delegate. There is no affidavit about this and notwithstanding the very long period of time that has transpired since the matter was first before the delegate, there is not even a list of the alleged cuttings or an application under the Freedom of Information Act for the release of them.
Mr Smith, who appears on behalf of the Minister, has gone through the court book in some detail and notes that there are no references to any newspaper clippings on any of the relevant forms which are found at [CB 1], [CB 9] or [CB 10].Further, there is no reference to them in the delegate’s decision found at [CB 87]. When the applicant filled in his form requesting review found at [CB 98] he said that detailed submissions will be filed later but no submissions appeared and there was nothing to suggest that any relevant newspaper clippings would have been among them.
Mr Smith also submits that the authorities make it clear that the Tribunal is not required to refer to each and every piece of evidence that comes before it in making its decision. Its duties are clearly set out in s.430 of the Migration Act and that those provisions were complied with in the manner in which the Tribunal made its decision. I accept that submission and note that the Full Court in Pollacks v MIMA (2001) 195 ALR 73 at [39] said:
“It is not necessary that there should be an in-depth discussion or evaluation or indeed a detailed catalogue of every piece of evidence on the basis of which the findings or the material questions of fact were made.”
The third matter raised by the applicant was that the Tribunal had told him that it had believed his story. This statement is coupled with a complaint that the Tribunal did not provide any evidence to rebut his claims for a protection visa. In the light of the references which I have already made to parts of the decision in which it is clear that the Tribunal has told the applicant that it had some doubts about his story, I find the suggestion that the Tribunal had made this statement difficult to accept without any evidence from a transcript. I am also satisfied that the authorities have made it clear that it is not the Tribunal's role to provide contradicting evidence, its job is to assess whether or not it can be satisfied that the applicant is a refugee within the definition of the Convention as amended by s.91R of the Migration Act: see Selvadurai v MIEA (1994) 34 ALD 347 at 348.
Finally, the applicant claims there was a breach of natural justice occurring in relation to the making of a decision. He particularises this by setting out a section of Article 1A(2) of the Convention referring to a large number of well known cases advising the Court that ss. 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and regulations to a particular person and then advises that there are four key elements of the Convention definition and sets them out. He then argues that the applicants were able to satisfy all the four key elements of the Convention but a decision was taken against the applicant's claim. How that assertion constitutes evidence of a procedural unfairness I am unable to say. It seems to me to be no more than a complaint that the applicant was not believed, which is a matter that this Court is unable to adjudicate upon.
The applicant appeared before me, he told me in opening that he had not been able to provide all the proof yet and therefore his original case was all the proof he had. He told me that he did not have a lawyer because the lawyers he had consulted had told him that he did not have grounds to fight this case and that he nothing else to add but a request that he would be able to remain in the country. In response to Mr Smith's very full arguments, he said that if he had more time he could get more evidence as proof.
In all the circumstances, I am unable to see any grounds upon which this applicant can allege a jurisdictional error on the part of the Tribunal. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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