SZBGX v Minister for Immigration

[2004] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGX v MINISTER FOR IMMIGRATION [2004] FMCA 422

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether natural justice required Tribunal to put to applicant conclusions regarding weight to be given to supporting documentation.

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1992) 52 FCR 437
Minister for Immigration & Multicultural Affairs v Jia Le Geng [2001] HCA 17
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 188

Applicant: SZBGX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1674 of 2003

Delivered on: 20 May 2004

Delivered at: Sydney

Hearing date: 20 May 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Respondent: Mr G. Kennett

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1674 of 2003

SZBGX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 June 2002, affirming a decision of a delegate of the respondent refusing to grant the applicant a protection visa. 

2. The applicant is a national of India who arrived in Australia on

   
   

   31 March 2001 and applied for a protection visa on 19 April 2001.  The application was rejected on 4 May 2001 and he sought review by the Tribunal on 18 May 2001.  He claimed that he came from a Muslim family and had been active in the TMMK, a Muslim based political organisation.  He claimed that he had been harassed by Hindu militants as a result of that involvement and arrested several times, indeed yearly, from 1995 as a result of organising and participating in demonstrations. 

3. He also claimed that following bombings in 1998 he had been accused of involvement in Al-Umma, a militant organisation, sentenced and gaoled for three years and that court proceedings were still pending in relation to these matters.  He claimed to fear that if he returned to India he would be killed by Hindus and also because he had an outstanding court case. 

4. The applicant attended a Tribunal hearing.  The Tribunal reasons for decision indicate that a number of issues were raised with him and that the substance of information was put to him on particular issues as well as concerns that the Tribunal had with elements of his claims. 

5. The Tribunal accepted that the applicant may have been involved in the TMMK, but at a low level.  It had regard to his lack of knowledge at the time of establishment of the TMMK and his inability to describe his activities in any meaningful way.  The Tribunal found that the TMMK was a moderate party which operated legally and it did not accept that membership of it, as such, would give rise to any well-founded fear of persecution. 

6. The Tribunal did not find it plausible that the applicant had been suspected of involvement with Al-Umma and arrested on that basis or that he would be suspected of being involved in violence or rioting.  It found these claims and the claim that the applicant had been arrested, detained and imprisoned for two or three years to be far-fetched and lacking in credibility, given that he claimed to be a known member of a moderate and legal party.  It was implausible that such a person would be suspected of involvement with Al-Umma or violence or rioting.  The Tribunal also had regard to inconsistencies between the claimed time of arrest and independent evidence as to when Al-Umma members were arrested after bombing in February 1998. 

7. The Tribunal also rejected as implausible the applicant's claim to have been arrested on a yearly basis from 1995 as a result of his participation in the TMMK demonstrations, as inconsistent with independent evidence about the nature of the TMMK and the peaceful nature of the demonstrations.  It also rejected his claim that his father had been killed in religious riots soon after the bombing in Coimbatore in light of independent information undermining this claim and the absence of any official death certificate for his father indicating a cause of death.  It did not accept this claim as credible. 

8. The applicant claimed that he was the subject of an ongoing court case and investigation.  The Tribunal had regard to his evidence that he had left India on a passport issued in his own name and issued legally, but that he had paid bribes and to independent information in relation to the issue of passports in India and the thoroughness of airport checks.  It concluded on the basis of such information that if a person were of serious security concern to the India security forces, it was unlikely he would have been able to leave India as claimed.  Independent information was cited as to the difficulty for anyone for whom an arrest warrant was in force to leave the country undetected, even with the use of bribery.  In light of the independent evidence, the Tribunal found the applicant's claim that he had an arrest warrant outstanding when he left India was a fabrication made to bolster his application.  It found that the applicant was an unreliable witness and lacking in credibility.  The Tribunal also found that it could not give weight to supporting documents provided by the applicant, as discussed further below. 

9. Hence the Tribunal did not accept as credible the applicant's claims of annual arrests, that his father was killed as claimed, that he was arrested in October 1998 and held for two years or that there were any outstanding court proceedings or arrest warrant issued for him but found the claims fabricated and undermined by the independent evidence. 

10. The Tribunal also dealt with the claim that the applicant would face persecution as a result of his religion as a Muslim.  He had not claimed that he had ever been prevented from practising his religion in the past, and on the basis of independent evidence the Tribunal concluded that he would not be prevented from practising his religion.  It was not satisfied that Muslims as such, or the applicant in particular, would be targeted for harm. 

11. The Tribunal also dealt with the possibility that the applicant might relocate in India and concluded that the harm he feared from Hindu militants was local in nature and could be avoided by relocation.  Given his age and skills, relocation was a reasonable and feasible option for the applicant.  It considered the possibility of relocation in the context of the applicant's claims to fear harm by the RSS in his local area.  It had regard to the applicant's claims and the information he provided.  In light of his evidence and the independent evidence it was not satisfied that the applicant was a refugee within the meaning of the Convention. 

12. The applicant filed an application in this Court on 20 August 2003.  It raises nine grounds and states that more details will be provided.  No written submissions were filed by the applicant but he raised a number of matters in the hearing.  A number of the grounds raised in the application for review, which were unparticularised, seek merits review (such as the general claims that the Tribunal “denied the evidentiary proof” of his claim and “did not reflect the material facts” of his claim, “mixed up many facts with this decision which affected the decision”, and that it did not believe the applicant's “genuine Convention based refugee claim”).  Merits review is not available.

13. The applicant contended that the Tribunal failed to take into account relevant considerations.  He claimed that the Tribunal did not take into account the Court case against him in India and the fact that he claimed to have two warrants of arrest outstanding.  However the Tribunal did take into account these claims but did not accept them as credible, for reasons which it gave which were open to it on the material to which it referred.  It made its findings in the context of a consideration of the applicant's ability to leave India legally, a context which makes it clear that the Tribunal understood the elements or integers of the applicant's claims. 

14. A failure to accept the applicant's claims, as in this case, does not establish that there was a failure to take into consideration elements of the applicant's claim.  The Tribunal cannot be criticised for not considering the consequences of there being an outstanding Court case or warrants for arrest in circumstances where it has rejected as not credible the claims that there are any such outstanding Court proceedings or arrest warrants. 

15. The applicant is, in effect, taking issue with the factual conclusions of the Tribunal in relation to the credibility of his claims.  Credibility findings are a matter for the Tribunal par excellence (Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407) and were open to the Tribunal in this case on the material before it and for the reasons that it gives Kopalapillai v Minister for Immigration (1998) 86 FCR 547.

16. The applicant also claimed that the Tribunal concentrated on particular facts and ignored many other facts in its decision.  The applicant has not identified particular facts.  Nor is it apparent to the Court that the Tribunal failed to consider any relevant considerations or integers of his claims or that it took into account any irrelevant considerations in a manner constituting jurisdictional error.  

17. The applicant submitted that the Tribunal erred in its consideration of the issue of relocation because he had an outstanding arrest warrant that would be applicable throughout India.  However, as indicated, the Tribunal had rejected that claim as not credible.  It considered the reasonableness of relocation in accordance with Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1992) 52 FCR 437 in the context of the applicant's expressed concerns in relation to a fear of harm by the RSS in his local area. The Tribunal properly raised the issue of relocation with the applicant, considered independent information and the applicant’s concerns. No error is apparent in the Tribunal consideration of relocation.

18. The applicant also claimed that the Tribunal made its decision in bad faith and that it made a decision which was preset in the back of its mind.  This allegation seems to raise either actual or perhaps apprehended bias.  The only evidence before the Court of the conduct of the Tribunal hearing is the Tribunal reasons for decision.  There is nothing in the material before the Court to provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith.  Nor is apprehended bias in a sense considered in Minister for Immigration & Multicultural Affairs v Jia Le Geng [2001] HCA 17 apparent.

19. Associated with this claim is a general claim that the Tribunal deprived the applicant of natural justice.  There is nothing to suggest that the applicant was denied a proper opportunity to put his claims to the Tribunal in the hearing and by submission of documents.  The applicant claimed specifically that the genuineness of his documentation could have been verified.  Insofar as this is a suggestion that the Tribunal was under an obligation to make further inquiries, there is nothing in the material before me to suggest that the Tribunal undertook to make any such inquiries nor, given that it rejected the applicant's claims as not credible before going on to consider the supporting documentation, is this a case in which the Tribunal was under any obligation to make such further inquiries, as suggested by the applicant. 

20. The Tribunal did rely in its reasons for decisions on independent information in several respects, and there are circumstances in which a failure to bring relevant independent information to the attention of an applicant may be regarded as establishing a lack of procedural fairness or denial of natural justice.  However, in this case, the evidence does not establish that the gravamen of relevant independent information in relation to the situation in India was not discussed with the applicant during the hearing.  Indeed it is evident from the Tribunal's summary of the hearing that the substance of relevant information was put to the applicant at critical points where conclusions were later drawn from such information.  There is no suggestion by the applicant that particular information was not put to him.  No evidence of the conduct of the hearing other than the Tribunal reasons is before the Court.  No lack of natural justice is established in relation to the Tribunal treatment of independent information. 

21. The applicant also sought to put before the court information from an Indian newspaper, dated 2 October 2002 which he said was contrary to the view that the Tribunal had taken of the situation in India.  However the Tribunal was obliged to make the decision on the information available to it at the time of its decision (which pre-dated the information which the applicant sought to draw to the Court's attention).  The existence of such information does not establish either that relevant considerations were not taken into account or that there was any lack of procedural fairness in the manner in which the Tribunal proceeded on the information before it at the time. 

22. There is one particular issue which is necessary to consider in relation to natural justice and that is the Tribunal treatment of the supporting documentation provided by the applicant.  The applicant provided a number of documents to corroborate his claims consisting of copies of warrants of arrest from 8 and 12 February 2001; a letter from his wife, dated 30 March 2002; a certificate in relation to his father issued by the Muslim Jamith Committee on 1 January 2002; a TKKM membership card; a copy of legal documents regarding a case against the applicant and others dated 25 March 2001;  and translation of a newspaper article of March 2002 in which it was stated that, ‘A few involved in cases ran away to foreign countries as refugees and [a person bearing the name of the applicant] was a notable person among those people.’ 

23. Having found on the basis of the applicant's evidence and the independent information that his claims were not accepted as credible, the Tribunal set out nature of the documents submitted and stated:

    In light of the findings above that the Tribunal finds that the applicant to be unreliable witness and lacking in credibility, the Tribunal cannot give weight to these documents. 

    ……………

    There was no evidence to suggest that being a member of the TMMK was such as to give rise to a well founded fear of harm in India in the foreseeable future.

24. As to the death of the applicant’s father, the Tribunal had already found that although the applicant produced a ‘certificate’ from the ‘Muslim Jamath Committee’ he never produced an official death certificate.  It was the absence of such independent evidence and the existence of contrary country information suggesting that the Coimbatore bombing did not spark any communal violence that led the Tribunal to reject the credibility of the claim as to the circumstances of his father’s death.  No error is established in this respect. 

25. It is apparent that in the Tribunal hearing, questions were put to the applicant in relation to aspects of the documents that the Tribunal saw as potentially unlikely or unsatisfactory.  The Tribunal's reasons for decision outline the Tribunal discussion with the applicant of the circumstances of the letter from the wife and some inconsistencies between what was said in that letter and the fact that the applicant's address in Australia was, in fact, known and stated on the letter.  The Tribunal also asked the applicant about court documents he had submitted and to explain why another arrest warrant was claimed to have been issued in December 2001. 

26. In relation to the letter from the applicant's wife, the Tribunal considered that the timing of the letter (after the application was refused) gave rise to questions of its genuineness.  It went on to find, however, that it could not give weight to the letter because it would have been a relatively straightforward matter for the applicant to contrive the letter by giving his wife instructions in relation to what she should write, and because there was no definitive evidence to support a claim that his wife was actually the author of the letter.  It was not necessary for the Tribunal to put its thought-processes in relation to the weight to be given to the letter to the applicant for comment.  It did raise concerns about inconsistencies in the letter and in other respects the applicant. 

27. The Tribunal accepted that the applicant was a member of the TKKM (a matter in relation to which he had produced a membership card but as to which the Tribunal was, in any event, independently satisfied).  However the Tribunal found that there was no evidence to suggest that simply being such a member would give rise to a well-founded fear of harm in India.  It put independent information about the non-violent and moderate nature of the TMMK to the applicant.  No error is apparent in this respect. 

28. The applicant provided copies of arrest warrants and legal documents and a newspaper clipping.  However the Tribunal did not accept as credible the claims that the applicant was arrested yearly because of his participation in TMMK organised demonstrations or that he was detained, imprisoned and charged as claimed because of the implausibility of his claims, inconsistencies and in light of independent evidence.  In particular the Tribunal rejected as far fetched his claim of arrest, detention and imprisonment for suspected involvement in Al-Umma as contrary to independent evidence as set out above.  These conclusions were open to the Tribunal on the material before it. 

29. It was in that context and in light of the findings that the applicant was unreliable and lacking in credibility that the Tribunal concluded that it could not give weight to the documents.  There is authority to the effect that a Tribunal fails to provide natural justice if it concludes that a document is forged or concocted without having put that proposition to an applicant (WACO v MIMIA [2003] FCAFC 171 and WAJR v MIMIA [2004] FCA 106). However, in this instance the Tribunal found not the documents were fraudulent or not genuine, but that they could not be given any weight because the claims which they purported to corroborate were thoroughly discredited (see WAEJ v MIMIA (2003) FCAFC 188).

30. A distinction can be made between a finding (such as was made by the Tribunal in WACO), that an applicant has produced a fraudulent document and a finding such as was made in the present case, that documents were not to be given any or much weight.  In WACO two letters were provided as corroborative evidence of the appellant's claims.  The Tribunal in that case had concluded that several aspects of the claims were implausible and that the applicant was not a credible witness.  In relation to the letters provided, it concluded that in view of its firm findings against the applicant it was not prepared to accept either of the documents as genuine.  It went on to find that they had been prepared to seek to bolster his claims.  In that case the Tribunal had not at any time given any indication to the applicant that it doubted the genuineness of the letters.  Nor had it invited the applicant to comment on whether they were genuine.  In contrast, the Tribunal in this case did not find that the supporting documentation was fraudulent or that it had been prepared to bolster the applicant's claims.  The Tribunal did express doubts about the genuineness of the wife’s letter but these concerns were raised with the applicant during the hearing according to the Tribunal reasons for decision.  Moreover, while the Tribunal stated that there were questions as to the genuineness of the letter, its finding was that no weight should be given to the letter. 

1. The Court in WACO found that, on the facts before it, the Tribunal was under an obligation to give the party tendering a document which, on its face was genuine, an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness where it concluded that the document was forged or concocted. This was so even though the appellant had been put on notice that the Tribunal was not satisfied that his evidence was credible. In that case the question of whether the documents were genuine did not directly depend on the applicant’s evidence. The Court stated at [54]:

   ‘Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision matter that they are forgeries it is likewise inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.’ 

2. In WAEJ v MIMIA [2003] FCAFC 188 the Full Court considered a submission that there had been a breach of the rules of natural justice in the failure of the Tribunal to give the appellant the opportunity to deal with undisclosed concerns held by the Tribunal regarding the genuineness of a document submitted by him. The Tribunal had stated that it was not satisfied as to the genuineness of a document, having regard to the unsatisfactory nature of the appellant's evidence and the timing of the document. The Court noted that no dishonesty had been demonstrated on the part of the appellant and that there was no finding by the Tribunal ‘that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis’ (cf Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [12], McHugh, Gummow JJ at [49]). It considered whether the finding as to genuineness was such that the Tribunal was under an obligation to put its concerns to the applicant. It expressed the view that, if the Tribunal did not believe a document was authentic, it should have advised the applicant and allowed him to make any inquiries to produce further information to satisfy the Tribunal in respect of the document. However, importantly, it distinguished between a Tribunal finding as to a lack of genuineness in the loose sense of authenticity and use of the word ‘genuineness’ in a sense intended to convey not that the document was a forgery but “that the weight to be given to the content of the document provided no support for the ‘genuineness’ of an applicant's claim”. It suggested that if the word ‘genuineness’ was used by a Tribunal in that sense (which it accepted that it was in that case) then perhaps that was a conclusion available to the Tribunal. In WAJR v MIMIA [2004] FCA 106 French J referred to the decision in WACO in stating that where there was a clear implication in a Tribunal’s reasoning by reference to the appearance of documents that they were concocted for the purposes of the application, procedural fairness would require an opportunity to be given to the applicant to comment. However His Honour stated at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than it was not satisfied about the reliability or genuineness of particular documents.

3. Considering the present case in the light of these authorities, I am satisfied that procedural fairness did not require the Tribunal to invite the applicant to comment prior to its finding that it could not give weight to the documents.  This is a case where the evidence of the applicant was, for the reasons the Tribunal gave, so discredited that the purportedly corroborative material could be regarded as having no weight.  During the hearing the Tribunal raised with the applicant concerns about the aspects of implausibility of his claims and contrary independent information.  The Tribunal did not make a finding that the documentation was fraudulent or concocted for the purposes of advancing the applicant's case.  It did not make findings of forgery or a lack of genuineness in the sense of authenticity.  It did not base its findings on the appearance of documents.  Rather, the applicant gave an account of his claims which was comprehensively disbelieved and on that basis the Tribunal had regard to material which might have been corroborative but to which, accordingly, it did not give any weight.  The approach taken by the Tribunal in that respect is consistent with the approach suggested by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 in particular at [49] per McHugh and Gummow JJ (and also see Gleeson CJ at [12]). In the particular circumstances of this case I am not satisfied that the Tribunal treatment of the supporting documentation and its the conclusions in that respect constitute a lack of procedural fairness. The claims which the documents purported to corroborate were thoroughly discredited for other reasons. Natural justice did not require the Tribunal reasoning to be put to the applicant. Having considered all of the material before me, no jurisdictional error has been established. Accordingly, the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant pay costs in the sum of $4,000.  The applicant has been unsuccessful.  It is appropriate that he meet the Respondent’s costs.  I consider that the amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 July 2004