SZBCN v Minister for Immigration
[2004] FMCA 1037
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCN v MINISTER FOR IMMIGRATION | [2004] FMCA 1037 |
| MIGRATION – Review of decision of RRT – where applicant claimed to be a member of a particular social class – whether Tribunal properly considered all relevant matters – where Tribunal found inconsistencies in applicant’s evidence. |
Migration Act 1958 (Cth), s.424
NAMM v Minister for Immigration [2003] FCAFC 32
Kamal v Minister for Immigration [2002] FCA 818
NARE v Minister for Immigration [2003] FCA 554
| Applicant: | SZBCN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1522 of 2003 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 22 December 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | M Allars |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1522 of 2004
| SZBCN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 23 December 2001. On 18 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 26 June 2002 a delegate of the Minister refused to grant a protection visa and on 9 July 2002 the applicant applied for review of that decision.
Before the delegate made his decision he had written to the applicant on 17 May 2002 providing him with certain information which may be taken into account when a decision was made upon the protection visa. The letter indicated that the material contained might lead the decision maker to reject the application. The letter from the delegate is set out at [CB 71-72]. It invited comments from the applicant but the response received was only a request for further time.
On 6 August 2002 the Tribunal wrote to the applicant pursuant to s.424 of the Migration Act 1958 (Cth) inviting him to provide further information about his claims. The letter written to the applicant is set out at [CB 74]. The applicant responded to that letter on 15 April 2003. He provided advice that in relation to some of the matters he had no evidence. He corrected something within his statement about dates and advised that further information would be submitted later.
The Tribunal conducted a hearing in the presence of the applicant and an interpreter. On 18 June 2003 the Tribunal determined to affirm the decision not to grant the protection visa and it handed that decision down on 15 June 2003.
The applicant arrived in this country on a business visa in the application for which he had indicated that he was a managing partner of a company that was “a firm of professional consultants, commission agents, as well as reputed importers and dealers of hospital, medical, laboratory and related health care products and accessories”. He sought to come into Australia for a business meeting regarding the import of laser TENS therapy units from an Australian company. However, in his application for a protection visa he indicated that he had been employed for some years by a political party known as the DMK, his claim to have a well founded fear of persecution for the Convention reason of political opinion arose out of this association. The applicant also claimed to be a member of "the backward class." He alleged that members of his class were badly treated and discriminated against by members of the "forward class" for whom they were frequently required to work in a situation of almost indentured service.
The Tribunal's approach as indicated in its findings and reasons was to provide the applicant with a precis of his grounds for seeking asylum which he agreed to and then going through, in some detail, the claims and pointing out to him areas in which those claims were inconsistent either with known facts from independent country information that it had put to the applicant or between statements of the applicant that had previously been made in his application or in his submissions to the delegate or finally in his discussions with the Tribunal.
The inconsistencies and confusions are set out in detail in the grounds and reasons. At [CB 78] the Tribunal says:
“The Tribunal said that it had heard what the applicant was saying, but there still appeared to be a contradiction between his oral and written evidence. However, the most important problem it had related to the date of the alleged incident [a claim that the applicant had been beaten up at a political rally]. He was saying that the candidates were campaigning for election to the assembly on 18 October 2001, but the election in question had been held, and V had been elected as the MLA for Orathanad, five months previously. The applicant then said that it was on that particular date that V had come to thank voters for the election result. The Tribunal reminded him that that was not what he had said earlier regarding the purpose of the election. He said these clashes took place after the ADMK came to power. He then digressed and started describing discrimination he had experienced at school. The Tribunal said that was relevant to the discussion of the alleged incident in October 2001.”
The Tribunal's concern about the applicant's inconsistencies on the question of dates is seen throughout the grounds and reasons and it cannot be said that these concerns were not put to the applicant. The Tribunal also found contradictions and inconsistencies in other statements, in particular one relating to an alleged home invasion by his persecutors where the Tribunal says at [CB 82]:
There were a number of contradictions in the detailed claims made by the applicant. For example, in his initial application, the applicant said that his wife and mother were injured and the house was "torched" in the incident when he was attacked at home. This incident was not mentioned at all in the statement made to the Tribunal in February 2003. In his oral evidence the applicant said that he was the only one injured, and said there was no damage to the home.
These contradictions are set out in some detail between [CB 82] and [83] and the Tribunal at [CB 83] comes to the conclusion that:
In the above circumstances, the Tribunal finds that the applicant was not an employee of the DMK, and was not involved in making speeches on behalf of the party or soliciting funds for it in Malaysia and Singapore. It finds that he has not come the adverse attention of leading ADMK figures such as V or J and her adopted son, and that he has not had false charges levied against him. It therefore finds that he would not be a risk of persecution for reasons of his political opinion if he were to return to India in the reasonably foreseeable future.
The Tribunal also goes on to consider the claim of being a member of the backward class and states:
In his application for review, the applicant referred to being of a “backward class” and to being tortured and suffering other forms of discrimination by the “forward class people”. In the context in which these remarks were made, it appears this information was provided by way of background to explain why he allegedly joined the DMK, but the Tribunal has considered whether he would be at risk of future persecution for this reason. The applicant did not pursue this issue at the hearing, and explicitly denied one aspect of it when he said that he had never personally experienced any physical harm. The Tribunal finds, therefore, that he was never “tortured” because he was allegedly a backward class person. On the evidence before it, the Tribunal is not satisfied that the applicant is from a “backward class” and therefore would face any detriment in India for such a reason.
Before I turn to the applicant's grounds for alleging that the Tribunal fell into jurisdictional error I would indicate that the quote from the Tribunal's decision at [CB 84] that is made in the above paragraph may be considered by some people not to represent the strictest form of logical consistency. They may feel that the evidence does not go quite so far as to indicate that the applicant was not from "a backward class". I note that in NAMM v Minister for Immigration [2003] FCAFC 32 the Full Bench said at [46]:
However, as things presently stand, faulty logic in fact finding does not constitute jurisdictional error.
Ms Allars in her helpful written submissions has summarised the applicant's grounds for alleging a jurisdictional error by the Tribunal in its decision. There are four. The first is that:
“The Tribunal erred in law by failing to consider that the discrimination because of the social class of the applicant amounted to persecution for one of the Convention reasons.”
It is clear from the matters referred to above that the Tribunal did consider the applicant's claim that he was discriminated against because of his membership of a particular social class. The important finding in this regard is that the applicant had never experienced any physical harm as a result of being a member of that class. It would seem to me that this alone is sufficient to enable the Tribunal to have come to the conclusion that he would not be entitled to protection from this country on the grounds of membership of the class alone. This ground cannot be established.
The second ground is:
“The Tribunal failed to make findings on material questions of fact, namely whether there was an attack by ADMK and Mr V at the applicant's home, the injuries suffered by him and the damage done to his property as a result of that attack.”
The Tribunal most certainly raised with the applicant questions about his claims concerning the attack on his home. It noted that there were inconsistencies concerning the time of that attack. There were also inconsistencies about the date. First, it was suggested it took place on 18 October 2001 and then he told the Tribunal that he had become confused about dates. The Tribunal did make a finding of fact and that was that the attack never took place. That finding was based upon the Tribunal's view of the credibility of the applicant in relation to these claims. The Tribunal was entitled to come to that view based upon the evidence that was before it and as Mansfield J said in Kamal v Minister for Immigration [2002] FCA 818:
“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 that the applicant's claims should not have been made. Those evaluative processes are for the Tribunal.” [36].
This ground cannot be sustained either.
The third ground is that:
“The Tribunal erred in law by applying the wrong standard for determining the well founded fear of persecution.”
The applicant provides no particulars of this ground and the Tribunal has set out in some detail what it considers the law relating to the definition of a refugee is at [CB 68-70]. I see no reason to assume that the Tribunal disregarded the advice it gave itself as to what constituted a well founded fear of persecution for a Convention reason and therefore in the absence of any further submissions from the applicant this ground must be rejected.
The fourth ground of the application is that:
“There is no evidence that the applicant has received adequate state protection in the past or will receive such adequate state protection if he returns to India, to remove a real chance of him being persecuted in India by members of the ADMK and the Tamil Nadu Government.”
The difficulty which the applicant has in pursuing this ground is that the requirement for adequate state protection only exists if a finding of fact is made that certain activities occurred which were likely to harm the applicant. The Tribunal's findings of fact were that none of these activities occurred. Provided that the Tribunal was entitled to come to that conclusion from the evidence before it, and I believe it was, then there was no need for the Tribunal to consider the question of adequate state protection.
The final ground is:
“The Tribunal ignored considerations relevant to the applicant's credibility, ie his knowledge of the political situation in Tamil Nadu, his knowledge regarding a specific election campaign and stating the correct numbers of votes polled for each party.”
This is really a claim that the Tribunal should have preferred some part of the applicant's evidence over other parts. The consideration of the applicant's evidence as a whole is entirely a matter for the Tribunal and is not one which can be made the subject of review.
The applicant appeared before me in person. He told me that whatever he put to the Tribunal was true except for some inaccuracies relating to a date. He told me that he could not afford to return to India because he would be killed. He asked me to consider his appeal and to give him relief. These matters raised do not constitute grounds of alleged jurisdictional error on the part of the Tribunal and appear to misunderstand the role of the court in review. As Allsop J said in NARE v Minister for Immigration [2003] FCA 554 at [10]:
What the applicant may not well appreciate, not being a lawyer, is that the process and purpose of review to this court does not and cannot involve simple re-finding of facts found by the Tribunal. Rather the review is broadly speaking to ensure that the Tribunal has made the decision lawfully ... It is not the court's job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to portray a failure to undertake properly the required task.
I am unable to find that the Tribunal has failed to undertake properly its required task in this case. 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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