SZBIW v Minister for Immigration
[2005] FMCA 630
•12 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBIW v MINISTER FOR IMMIGRATION | [2005] FMCA 630 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – asserted constructive failure to consider an element of the applicant’s claims – asserted procedural unfairness – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.36 |
| Avesta v Minister for Immigration [2002] FCAFC 121 Devries v Australian National Railways Commission (1993) 177 CLR 472 Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30 W148/00A v Minister for Immigration (2001) 85 ALR 703 |
| Applicant: | SZBIW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1758 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 12 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood |
| Counsel for the Respondent: | Mr C Mantziaris |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1758 of 2003
| SZBIW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 4 July 2003 and handed down on 5 August 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are adequately set out in written submissions prepared on behalf of the applicant in paragraphs 1-3 and in paragraphs 2-4 of the Minister’s written submissions. I adopt those paragraphs of those submissions as follows for the purposes of this judgment:
The applicant is a citizen of India born 15 July 1966. He is currently 38. He comes from the Punjab, his ethnic group is Jat Sikh and his religion is Sikhism.
On 15 April 1998 he left India on a passport issued in his own name on
10 November 1997. He arrived in New Zealand and stayed there for some four years. He arrived in Australia on a visitor’s visa on 30 April 2002.The applicant then lodged an application for a protection visa on 30 May 2002. The applicant claims that he fears persecution on the basis of his membership of the Sikh religion and his membership of the Kish Student Federation (the AISFF). This application was refused on 20 August 2002 by the Minister’s delegate and a review sought to the RRT on 19 September 2002. The RRT on 4 July 2003 (RRT reference number N02/44393 handed down 5 August 2003) affirmed the delegate’s decision. It is this decision for which the applicant seeks review in these proceedings.
Additional relevant background facts are also set out in a chronology, attached to the Minister’s submissions and in paragraphs 8-15 of those submissions. I adopt those paragraphs of those submissions by way of additional background for the purposes of this judgment:
A chronology of significant events cross–referenced to the court book (CB) is annexed to these submissions.
DATE
EVENT
REFERENCE
1998-2002
Applicant living in New Zealand
CB132–134
Jan 2002
Applicant returns to Punjab for two months
CB 129
30 Apr 2002
Applicant arrives in Australia
CB 54
30 May 2002
Applicant applies for a Protection Visa
CB 2
20 Aug 2002
Decision of the Minister’s delegate refusing the application for a Protection Visa.
CB 41
11 Sep 2002
Application for RRT review of the delegate’s decision
CB 52
11 Apr 2003
RRT letter inviting applicant to a hearing
CB 55
22 May 2003
RRT hearing
CB 11
3 July 2003
RRT interview
CB 109
4 July 2003
RRT decision handed down
CB 119
28 Aug 2003
Application for judicial review
28 Oct 2003
Amended application for judicial review
The RRT had before it the Department’s file, written submissions and documents forwarded by the applicant: CB 126–7, 130, 131A. The applicant appeared before the RRT on 22 May 2003 and again at an interview on 3 July 2003 which was called to allow the applicant an opportunity to respond to observed inconsistencies between his Australian and New Zealand visa applications. The applicant gave oral evidence on both occasions.
Credibility: The RRT made strong findings that the applicant was not a credible witness (CB 145.10–146.1):
Many of the key aspects of his testimony and his claims were simply not plausible. There were many material contradictions and inconsistencies, particularly between the statement he gave to the New Zealand Immigration Service and the claims he pursued before the Department and the Tribunal. Some of his testimony and some of his claims were vague or not sufficiently detailed to be believable. There were a number of recent inventions. Some of his key claims were at odds with the independent evidence.
In making its credibility findings, the RRT had regard to the “special considerations” which attend the assessment of credibility issues in refugee matters: CB 146.2–4. The RRT’s adverse findings on credibility in respect of contradictory claims made to Australian and New Zealand authorities were specifically addressed at CB 153.5–154.1, 154.6.
Claims accepted:The RRT accepted the applicant’s basic claims concerning his birthplace, language group, ethnicity, education, and the dates of his travel movements between India, New Zealand and Australia, and the fact that “[h]is wife, son, daughter, father and mother live in India”. These claims were specifically listed: CB 146.5–147.2.
Claims not accepted:The RRT explicitly stated that it “[did] not accept any of the other claims presented by the applicant”. Specifically, the RRT did not accept the following claims –
a)That the applicant could leave India legally if the authorities were interested in him: CB 147.3 (see also CB 128.3).
b)The claims in the applicant’s protection visa application. The RRT found that these were “vague, general and not sufficiently detailed to be believable”: CB 147.
c)That the applicant was a member of the Sikh Student Federation. The RRT based its finding on the lack of adequate documentary proof and material contradictions in the applicant’s claims, which the applicant could not explain to the RRT’s satisfaction: CB 147.8–148.3 (see also CB 128.7).
d)That the applicant was arrested on a number of occasions. The RRT found a number of contradictions in the applicant’s claims as to the number of times and the dates of these arrests which the applicant could not explain to the RRT’s satisfaction: CB 148.4–148.9 (see also CB 129.1).
e)That the applicant was tortured when he was arrested at the site of a truck union office: CB 148.7 (see also CB 129.7).
f)That the applicant received information that he would be killed if he returned to India: CB 149.1.
g)That the police went to the applicant’s house in the Punjab on or about 5 or 6 January 2002: CB 149.4.
h)That the applicant returned to India in 2002 notwithstanding the fact that he feared death or imprisonment if he returned: CB 149.7.
i)The general claim that several persons, allegedly the applicant’s friends, were arrested or killed by the Punjabi police, as alleged in the 30 May 2002 letter from the applicant: CB 149.9.
j)That the applicant was a member of the International Sikh Student Federation: CB 150.4.
k)That the medical certificate dated 28 October 1996 and the ‘God is One’ letter were authentic documents: CB 150.4–7.
l)That the Punjabi police made threats to kill the applicant: CB 151.2.
Authenticity of document: The RRT found that the medical certificate dated 28 October 1996 was not an authentic document for the following reasons (CB 150.4):
a)Independent country evidence that it is very easy to obtain false documents in India;
b)The certificate was in English rather than Punjabi or Hindi;
c)Since it was apparently written in 1996 the applicant had ample opportunity to obtain and lodge it with his protection visa application, rather than wait more than two months after it was lodged to present it to the Department; and
d)The corroboration of the claims which the document purported to make was tainted by the central finding of the Tribunal that the applicant lacks credibility: Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30, [49], per McHugh & Gummow JJ (see CB 149.3).
Inconsistencies between the New Zealand and the Australian protection visa applications: The RRT engaged in a detailed study of the very different claims made by the applicant to New Zealand and Australian immigration authorities. These inconsistencies were discussed at the 3 July 2003 interview: CB 151.2–154.1. The RRT stated that
In the former, [the claims] essentially turn on claims that [the applicant’s] brother and father encountered serious problems, and only marginally that he did; in the latter the applicant only mentions that he had problems, he made no claims that his brother – who he did not even mention in Part B – or his father experienced any harm because of their political opinion or activities. When this issue was put to the applicant during the interview he stated that his whole problems related to his brother, which returns him to his New Zealand statement, and seemingly invalidates his claims in Australia. The Tribunal also finds significant the varied and sometimes contradictory explanations the applicant offered for the failure to mention the New Zealand claims in this country. [CB 153.5]
The RRT was unable to be satisfied from the evidence before it that the applicant has a well–founded fear of persecution. The RRT found that the applicant is not a person who satisfies the criterion set out in Migration Act 1958 (Cth) (“the Migration Act”) s.36(2): CB 154.8.
These proceedings commenced with an application for judicial review filed on 28 August 2003. At that stage the applicant was represented by solicitors Messrs Ward Maxwell & Co acting as agent for Mr Mark Clisby of Walkerville, South Australia. Mr Clisby has since withdrawn from the record and I have regard to his affidavit filed on 5 May 2005 and his notice of withdrawal filed on the same day. I am satisfied that Mr Clisby has withdrawn from the record in accordance with the rules of the Court.
The applicant was represented today by Mr Burwood on a direct brief. Mr Burwood came into these proceedings rather late, it appears at around the same time as the applicant's former solicitors withdrew from the record. Coming into the proceedings so late Mr Burwood has obviously faced some difficulties but he has done the best in the circumstances with the brief given to him. Today Mr Burwood sought, and I permitted him to make further amendments to an amended application filed by the applicant's former solicitors on 31 August 2003. The effect of the amendments made by leave was to delete all of the particulars of the grounds of review set out in that amended application and to delete grounds 5.4 and 5.5.
Grounds 5.1, 5.2 and 5.3 in the amended application are pressed. The first two grounds, namely an asserted breach of the rules of natural justice and asserted denial of procedural fairness are in my view the one claim expressed in different ways. The third ground, an asserted error of law, is of course a very general claim. I sought to explore with Mr Burwood in argument what that claim was.
In his written submissions filed on 29 April 2005 Mr Burwood explains the basis upon which the application is now agitated and he further elaborated on those written submissions in argument. In essence, the applicant's claim is that the essential elements of his claim to be a refugee, namely, his claim of detention and physical harm by the Indian authorities in 1988, 1992 and 1996 were not properly or adequately investigated by the RRT. Apart from the asserted claim of procedural unfairness (or a breach of natural justice), as the claim emerged during argument, it appeared to me to be a claim of constructive failure on the part of the RRT to exercise its jurisdiction in relation to those elements of the applicant's claim of persecution.
The immediate and most obvious difficulty confronting the applicant in relation to the procedural unfairness and breach of natural justice claim is that it depends upon me drawing inferences from the decision and reasons of the RRT. Mr Burwood invited me to draw inferences from the decision and reasons, commencing on page 122 of the court book, that the applicant was not questioned in any detail at the RRT hearing about his claims of detention and physical harm. As I indicated to Mr Burwood, I am unwilling to draw those inferences. I have no transcript of the proceedings conducted before the RRT. The record of the decision of the RRT does not purport to be a verbatim account of exchanges that took place between the presiding member and the applicant. In the circumstances, I decline to draw the inferences invited by Mr Burwood. In the absence of any persuasive evidence, the claim of procedural unfairness or a breach of natural justice must fail.
The claim of a constructive failure to exercise jurisdiction does not depend upon evidence in addition to that found in the book of relevant documents. It may be that in an appropriate case the record of a decision of the RRT will indicate that the consideration of a particular claim of importance made by an applicant was so inadequate as to be regarded in law as no consideration at all. In the course of argument Mr Burwood invited me to draw a conclusion along those lines in relation to the applicant's claims of detention and harm on the three occasions mentioned. Of particular relevance, in Mr Burwood's submission, was the lack of detail in the decision and reasons of the RRT of the factual elements of those claims.
However, the short answer to that assertion is that those elements of the applicant's claims together with most of the other claims made by the applicant were rejected upon credibility grounds. The basis upon which the applicant's, claims both in general and in particular, were rejected are set out in considerable detail in the presiding member's reasons. The elements of the applicant's claims in issue in these proceedings are dealt with by the presiding member on page 129 of the court book at which point several credibility concerns held by the presiding member are expressed.
Further, the claims are dealt with in some detail on page 148 of the court book where the presiding member draws an adverse credibility conclusion in relation to them. Finally, the presiding member draws a global adverse credibility conclusion on page 154 of the court book. The presiding member was clearly concerned about the lack of detail in the applicant's claims, internal consistencies in those claims, the fact that the applicant delayed his departure from India notwithstanding asserted persecution and returned to India following a period of asserted persecution, the manner of his departure from India, the basic implausibility of a number of his claims and the marked conflict between the claims made by the applicant in his protection visa claim in Australia and those earlier dealt with in New Zealand. These were all serious matters bearing upon the presiding member's consideration and in my view provided a more than adequate basis for the rejection of the applicant's claims in whole or part.
In the circumstances, I am unable to conclude that there was any constructive failure on the part of the RRT to consider the particular claims by the applicant in issue.
In large part, Mr Mantziaris' written submissions have been overtaken by the narrowing of the application in the proceedings today. That said, I agree with and adopt for the purposes of this judgment paragraphs 23 and 24 of Mr Mantziaris' written submissions:
Consideration of arrest claims: The RRT considered the applicant’s various arrest claims at both the 22 May and the 3 July 2003 hearings. The discussion and consideration of the claims on arrest is recorded at several points in the RRT’s decision: CB 129, 133–4 (inconsistency with New Zealand visa claims), 148.3–9 and 152.2. Having made strong credibility findings adverse to the applicant (see above …), the RRT was under no duty to make further enquiries and investigations of incidents which it was satisfied were fabricated: see above … The applicant himself concedes that the adverse credibility finding flowed from the inconsistencies in his claims: Applicant’s submissions par 10.
Findings on the applicant’s credibility: It was open to the RRT to make an adverse finding regarding the applicant’s credibility. The reasoning process and supporting evidence that formed the basis of the credibility finding was disclosed.[1] The adverse credibility finding must be allowed to stand – it was not “glaringly improbable”, “perverse” or based on a misuse of the primary decision–maker’s advantage to find facts.[2]
[1]W148/00A v Minister for Immigration (2001) 85 ALR 703, [67], and more generally, [64]–[72].
[2]Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; and Avesta v Minister for Immigration [2002] FCAFC 121, [15], [18]–[19].
There is in my view no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the application must be dismissed.
On the question of costs, the application having been dismissed, Mr Mantziaris seeks, on behalf of the Minister, an order for costs fixed in the sum of $4,500. Mr Burwood did not wish to be heard on costs.
I am satisfied that costs of not less than $4,500 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to these proceedings, which I fix in the sum of $4,500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 May 2005
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