SZBJH v Minister for Immigration
[2005] FMCA 669
•25 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJH v MINISTER FOR IMMIGRATION | [2005] FMCA 669 |
| MIGRATION – Review of decision of RRT – where the applicant claims to have a well-founded fear of persecution for convention reasons – where the Tribunal determined that none of the applicant’s claims about persecution were true – whether the Tribunal committed a jurisdictional error by taking into account irrelevant material to make a finding upon the general credibility of the applicant – whether the Tribunal fell into jurisdictional error by too readily coming to a conclusion that certain matters constituted recent inventions which impugned on the credibility of the applicant – whether the Tribunal made a jurisdictional error by rejecting a claim that the applicant was persecuted on reasoning not supported by evidence – whether a matter should be remitted to the Tribunal where jurisdictional error affects only one part of the Tribunal’s findings. |
| Federal Magistrates Court Rules 2001 |
| Minister for Immigration& Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZDFO v Minister for Immigration& Multicultural Affairs [2004] FCA 1192 SZAQF v Minister for Immigration& Multicultural Affairs [2004] FCA 1586 VJAD v Minister for Immigration& Multicultural Affairs [2004] FCA 468 NAQS v Minister for Immigration & Multicultural Affairs [2003] FCA 1137 Wu v Minister for Immigration& Multicultural Affairs [2003] FCA 1249 Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 Applicant A101/2003 v Minister for Immigration& Multicultural Affairs [2004] FCA 556 Dranichnikov v Minister for Immigration& Multicultural Affairs [2003] 197 ALR 389 NABE v Minister for Immigration& Multicultural Affairs (No 2) [2004] FCAFC 263 Guden v MinisterImmigration & Multicultural Affairs [2000] FCA 236 Dabarera v Minister for Immigration& Multicultural Affairs [2001] FCA 1390 NACB v Minister & Multicultural & Indigenous Affairs [2003] FCA 165 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 183 ALR 58 |
Applicant: | SZBJH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1781 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 May 2005 |
| Date of Last Submission: | 5 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court:
declares that the decision of the Refugee Review Tribunal made on
7 July 2003 is void and of no effect.
refers the matter back to the Tribunal differently constituted to be heard and determined in accordance with law.
orders that the respondent pay the applicant’s costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
that the Refugee Review Tribunal be made the second respondent to these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1781 of 2003
| SZBJH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 3 July 2001. On 10 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 28 June 2002 a delegate of the Minister refused to grant a protection visa and on 26 July 2002 the applicant applied for review of that decision. The applicant gave oral evidence to the Tribunal on 20 May 2003. On 7 July 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 5 August 2003.
The applicant’s claim to have a well founded fear of persecution for the convention reasons of religion and political opinion arise out of his Sikh ethnicity. The claim is articulated in his protection visa application and found at [CB 17-18]. The claim is, relevantly that;
“My family and I had a very large farm which caused supporters of the Shiv Sena and Bajrong Dal to be jealous of us. The supporters of the Shiv Sena and Bajrong Dal abused and assaulted my family and me and demanded the return of our farm to the Hindu people. I complained to the police but the police would not act on the complaints. The property next to mine was owned by a Hindu person who had bought the police and local ministers. Police and people would come to him daily. On one occasion when I complained to the police they said to me that they would not act on complaints because me any (sic) family are Sikh terrorists and don’t want anything to do with us. The police also demanded money from my family and me and physically mistreated me when I did not give money.
In September 1999 people from the Bajrang Dal and Shiv Sena came to my home. We had an argument and I closed the front door. Then they fired shots into my house and randomly. Luckily no one was injured. When I went to the police to report the incident they never investigated but they put me inside the cell and attacked me, kicked, punched and beat me with steel bars, hockey sticks. I was told you are a Sikh terrorist and you have no right to be here.
I feel same will happen to me as before, I fear repetitive or worse.
At this time I am very distraught and confused but I will provide a full comprehensive statement.”
No such full comprehensive statement was ever provided. In response to the question
“Who do you think may harm/mistreat you if you go back?”
the applicant responded
“Police will harm and mistreat me. Supporters of Shiv Sena and Bajrang Dal will harm and mistreat me, as they are quite notorious.”
in answer to the question
“Why do you think this will happen to you if you go back?
the applicant answered
“I claim this will happen as they are jealous and envious of my wealth.
In response to the question
“Do you think the authorities of that country can and will protect you if you go back? If not, why not?”
The applicant responded
“No I do not think the authorities of India can or will protect me as on previous occasions they are the ones who have been the perpetrators of such vicious beatings and torture of myself. I am very fearful of India. The authorities namely police are often implicated in human right abuses and corruption.”
On 23 May 2002 the department sent to the applicant a natural justice letter which included extracts from country information and noted that there were no dates or locations regarding his claims and that no supporting documents and submissions had been lodged. The letter invited the applicant to comment on the material contained. No response was received to that letter prior to the primary decision which was handed down on 28 June. The applicant in his review application before the Tribunal indicated that he would provide the Tribunal with more documents and evidence to support his claim but no further documents or submissions were forthcoming.
At [CB 75] the Tribunal suggested to the applicant that it was hard to accept that he would have been able to leave India legally if the authorities were interested in him and if they thought he was a Sikh terrorist. The applicant responded that he did not have any connection with terrorist groups and that he had paid some money to an agent to arrange his visa. The Tribunal again refers to the question of him being considered a Sikh terrorist at [CB 76] where it notes:
“The applicant stated that he was detained for three or four days in September 1999. It was suggested that it was hard to accept that he was detained for such a short period of time if the police thought he was a Sikh terrorist. In response the applicant stated: “I’m elderly. The police knew I was not a militant or terrorist. They just wanted an excuse to beat me.” It was suggested to the applicant that it was hard to accept that the police would have labelled him a Sikh terrorist if he was not a member or militant of any Sikh organisation. In response he stated: “I was an ordinary citizen doing my job, and not a terrorist at all”
At [CB 89] the Tribunal sets out eight matters which were claimed by the applicant and which it believed were plausible. None of the accepted claims were claims relating to alleged persecution in India. At [CB 90] the Tribunal states:
“However, for the following reasons the Tribunal does not accept any of the other claims presented by the applicant.”
The first matter referred to by the Tribunal is expressed in the following form:
“As noted above, in the protection visa application the applicant stated that he left India legally on 2 July 2001. The Tribunal does not accept as plausible that he would be able to either leave India legally if the authorities were interested in him, if they thought he was a Sikh terrorist, if he had been detained by the police and since according to the above-cited independent evidence security checks at India airports are thorough and computerised lists are up to date. … That he was able to leave India legally is consistent with the view that at the time of his departure he was not of any adverse interest to the authorities and the Tribunal so finds. … But even assuming that a bribe was paid, the Tribunal does not accept that he had to pay money to ensure his departure since it is at odds with the above cited independent evidence that since the early 1990s the authorities have by and large not been interested in the AISSF or Sikh militants.”
The applicant argues that the finding set out above is a finding as to the credit of the applicant. It is one of a number of findings as to credit which led the Tribunal to determine that none of the applicant’s claims about persecution were true. The applicant argues that the essence of the Tribunal’s finding above is that he was not a Sikh terrorist or terrorist sympathiser. But, he says, he never made that claim. What he told the Tribunal was that the police had used that as an excuse to beat him up at the request of his political opponents. He told the Tribunal that the police did not believe he was a Sikh terrorist either. Thus, to make a finding about his general credibility on the basis that he did not fit the profile of a Sikh terrorist, who would have been detained at the airport, the Tribunal committed a jurisdictional error by taking into account irrelevant material; Minister for Immigration& Multicultural Affairs v Yusuf (2001) 206 CLR 323. The applicant argues that the identification of the applicant as a Sikh terrorist continues in the Tribunal’s reasons for decision at [CB 92] where it says:
“In the protection visa application the applicant claimed that once the police, after he complained to them, denounced him as a Sikh terrorist. During the hearing the applicant stated that this was in September 1999. If the police labelled him as a Sikh terrorist, the Tribunal does not accept as plausible that the applicant would have waited until July 2001 before leaving India, if he had a fear of persecution during that period of time.… During the hearing the applicant stated that he was detained for only three or four days in September 1999. The Tribunal does not accept as plausible that if the police regarded him as a Sikh terrorist they would only have detained him for such a short period of time. Therefore, the Tribunal does not accept the claims with respect to the alleged September 1999 detention.”
The applicant argues that these findings are similarly affected by jurisdictional error because they are similarly based upon the Tribunal assuming that the applicant was the subject of persecution for an imputed political opinion, that of a Sikh terrorist, when the applicant made no such claim at all. He had told the Tribunal that the police did not believe he was a Sikh terrorist. He did not claim in his response to the question as to who he thought might harm or mistreat him if he returned to India that the police would harm or mistreat him because he was a Sikh terrorist or even because they thought he was a Sikh terrorist. He merely said
“Police will harm and mistreat me. Supporters of Shiv Sena and Bajrong Dal will harm and mistreat me as they are quite notorious.”
It is to be remembered that the applicant’s claim is not that the police sought him out as an alleged terrorist, took him into custody and beat him but that he approached the police to complain about conduct of his political enemies and they then took him into custody and beat him using the Sikh terrorist accusation as an excuse.
Another reason why the Tribunal found that the applicant’s claims lacked credibility was related to its findings that certain particulars of those claims constituted recent inventions. The first of these findings is contained as [CB 92]:
“During the hearing the applicant stated that following this incident [the beating up by the police] he moved around for a little while. This was the first time that the applicant raised the claim that he relocated, although he had ample opportunity to do so in his protection visa application or in some other document prior to the hearing. Therefore, the Tribunal finds this is a recent invention, fabricated by the applicant in order to create a refugee profile, and does not accept it.”
The context in which this comment was made is found at [CB 75] which sets out a series of questions and answers put by the Tribunal and responded to by the applicant.
“It was suggested to him that if his problems began in 1995 or 1996 it was hard to accept that he waited until July 2001 before leaving India especially since he had a passport as of April 1998. In response he stated “before there were little problems, but the real problem started in 1999. They attacked my home and tried to kill my children and after that I started to move around.””
This questioning is repeated at [CB 76]:
“On that occasion some seven or eight people from the Shiv Sena and Bajrong Dal appeared at his front door. It was suggested to the applicant that it was hard to accept that he did not relocate after this incident. In response he stated: “I did move around for a little while. But it was suggested to me to leave the country.” It was pointed out that the claim that he was in hiding after the incident had never been raised by the applicant prior to the hearing, and therefore it appeared to be a recent invention. In response the applicant stated: “It’s my mistake, and I do apologise.””
The applicant states that the purpose of a hearing before the Tribunal is to obtain details of a person’s claim and that this involves questioning by the Tribunal. The responses elicited from the question may well involve new information but this is not necessarily the same as recent invention. He argues that the type of response he made to the question as to what he did after the incidents with the police and the attack on his home, that in respect of both matters he “moved around a bit” is quite consistent with his claims. It does not constitute a recent invention such as an entirely new claim or new incident. It is the Tribunal’s colouring of “moving around a bit” as relocation which raises the response to the level of a recent invention.
The second allegation of recent invention is also found at [CB 76]:
“If he was assaulted, kicked and beaten with steel bars and hockey sticks, it was suggested that it was hard to accept that he was not hospitalised or did not require medical attention. In response the applicant stated: “I got medical treatment but most injuries were internal.” It was pointed out that this claim had never been previously raised and therefore it appeared to be a recent invention. In response the applicant stated: “Nobody. I didn’t get guidance from anyone that I should mention such things. I did not know I had to submit all these details.”
In regard to this matter the Tribunal finds at [CB 92]:
“During the hearing the applicant stated for the first time that he received medical treatment following his detention. The Tribunal finds that this is a recent invention fabricated by the applicant in order to create a refugee profile, and does not accept it.”
The applicant claims that the Tribunal fell into jurisdictional error by too readily coming to a conclusion that these two matters constituted recent inventions which impugned his credibility. He argues that the fact that he received medical attention was not a matter of recent invention but a response to a question put by the Tribunal. He argues that, given the minimal nature of the medical attention he claimed to have received, a finding of this nature was perverse.
The applicant’s final claim is that the Tribunal made a jurisdictional error when it rejected the claim that he was persecuted by Shiv Sena and Bajrong Dal supporters on reasoning not supported by evidence. The Tribunal’s reasons for not accepting the fact of this persecution are found at [CB 91-92]. They are that if, as the applicant claimed, the persecution had been going on since about 1995 to 1996 it was not plausible that he would have waited until July 2001 to leave India, that his testimony in relation to any incident before 1999 was vague and general and that if such incidents had occurred then it was not plausible that he would not have sold up his farm and moved to another part of India. These findings allow the Tribunal to conclude that it did not accept the claim that the applicant’s family was abused and assaulted by supporters of the political movements and that therefore he did not complain to the police with respect to those matters. The applicant argues that he never claimed that the incidents before 1999 were so serious that he felt he was being persecuted but this response is a response as to a matter of fact with which this court cannot become enmeshed: SZDFO v Minister for Immigration& Multicultural Affairs [2004] FCA 1192, SZAQF v Minister for Immigration& Multicultural Affairs [2004] FCA 1586, VJAD v Minister for Immigration& Multicultural Affairs [2004] FCA 468, NAQS v Minister for Immigration& Multicultural Affairs [2003] FCA 1137, Wu v Minister for Immigration& Multicultural Affairs [2003] FCA 1249.
The respondent argues that notwithstanding the applicant’s claims relating to the findings of credibility, the decision is not open to review because the Tribunal has made a number of independent findings on the basis of acceptance of the applicant’s claims as credible and that the history of past events was accurate. These start at [CB 93] with a finding that the chance the applicant will be persecuted for reasons of his political opinion, religion or race or for any other convention reason is remote at best. The difficulty I have with this paragraph is that it seems to be based upon the suggestion that the applicant was a Sikh militant or a Sikh activist, which he never claimed to be. However, that fact is acknowledged by the Tribunal at [CB 94] where it says:
“However, the applicant, on his own evidence, does not have any of these profiles. Without more, merely being related to family members of the AISSF could not be perceived as being a Sikh militant. The Tribunal also finds that the applicant would not face a real chance of being subject to persecution at the hands of the authorities for merely being a Sikh or a Sikh who has been detained by the authorities. This finding is strengthened by the above cited October 2002 UK Home Office report.”
This is a finding which is independent of the findings upon credibility but it does not seem to me to go to the issue of whether or not the applicant is likely to be persecuted by members of Shiv Sena and Bajrong Dal assisted by the police which was the essence of his claim. At [CB 93] the Tribunal says:
“If the Indian authorities were not sufficiently interested in him in 2001, when he was able to leave India legally, it is even less likely that they would be interested in him now, three years later. Therefore, the Tribunal is not satisfied that the applicant was or is of sufficient interest to the Indian authorities, Shiv Shena or Bajrang Dal for political or other reasons, and is not satisfied that he has a well-founded fear of persecution for reasons or actual or imputed political opinion or any other Convention reason.”
This finding seems to be based once again upon the applicant’s lack of political profile as a Sikh militant. But he never claimed to be a Sikh militant. He claimed to be the subject of politically or racially inspired hatred from his neighbours who utilised their connections with the police to have him beaten up in the local jail. It is the fear of this reoccurring that caused him to seek asylum. The finding made by the Tribunal and recited above cannot possibly arise from an acceptance of those facts, which is the basis upon which the findings are predicated, unless there is some other evidence that would indicate that this type of violence has greatly diminished. The country evidence to which the Tribunal appears to be referring is country evidence of human rights abuses by the Punjab security forces. Even if this could extent to the local police it does not respond to the allegation by the applicant that local members of the opposing political groups came to his house and shot at him through the door. I am of the view that this aspect of the applicant’s claims was not considered by the Tribunal on the basis that findings of credibility were to be made in his favour. To that extent the Tribunal did not complete the task upon which it embarked. I do not consider that the Tribunal’s attempt to make its decision impermeable in this way has succeeded.
Although findings as to credibility are matters for the Tribunal par excellence Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407, where the Tribunal gives reasons for coming to certain views as to credibility then those reasons can be examined to see whether they were arrived at in jurisdictional error. In this case the reasons seem to me to include what Finn J described in Applicant A101/2003 v Minister for Immigration& Multicultural Affairs [2004] FCA 556 at [30] as “a basic misunderstanding of the case brought by the applicant”. That phraseology was used by the High Court in Dranichnikov v Minister for Immigration& Multicultural Affairs [2003] 197 ALR 389 at [88]. The Tribunal is obliged to consider claims arising on material before it. In NABE v Minister for Immigration& Multicultural Affairs (No 2) [2004] FCAFC 263 the Full Bench considered the type of erroneous findings of fact that might constitute jurisdictional error with reference to Yusuf:
“It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant materia, so as affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decisions is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact: ‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’ Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 AT 481 [35] per McHugh J.”
I am of the view that the factual error in this case, that the applicant was claiming to fear persecution because of an actual or imputed opinion of him as a Sikh activist, constituted a misapprehension of the question to be asked and the consideration of irrelevant material. To make a finding that the applicant lacked credibility because claims which he did not make were controverted by independent country information in my view distinguishes this case from those relating to pure findings of credibility.
In regard to the applicant’s arguments concerning the Tribunal’s finding of recent invention he would appear to be relying on an analysis of the type discussed by the Full Bench in Guden v Ministerfor Immigration & Multicultural Affairs [2000] FCA 236 that the Tribunal had found a fact which did not exist namely that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution [17]. The court in Guden found that this constituted a reviewable fact under the old section 476(1)(g) Migration Act but that section is no longer relevant. Guden was distinguished by Gray J in Dabarera v Minister for Immigration& Multicultural Affairs [2001] FCA 1390 at [80] where his honour said:
“First, the Tribunal in some instances rejected the evidence of the applications as recent invention, saying that it would have expected the particular allegations to have been raised at an earlier stage if they had been true. Counsel for the applicants argued that this process amounted to a finding of fact that the applicants were required to articulate the whole of their cases prior to the hearing. That fact did not exist, because the whole point of a hearing is to enable an applicant for review to expand upon the material provided in his or her case which bore upon the issue of his persecution. That case can be distinguished from the present on the basis of fact. In the present case, the Tribunal made no such finding. Nothing that it said gave any indication that it expected that the applicants would have set out their whole case earlier. All it did was to evaluate some specific aspects of each applicant’s evidence, taking into account its view that the nature of the evidence suggested that, if true, it would have seen the light of day earlier. It was open to the Tribunal to adopt this course.”
Most of the authorities on the question of recent invention refer to what the Tribunals class as “important new claims” eg NACB v Minister for Immigration& Multicultural Affairs [2003] FCA 165 [35]. My reading of the authorities is that a finding of recent invention is a logical ground on which the RRT is entitled to disbelieve an applicant and that it is not open to the court to delve into the nature of the alleged recent invention in the way suggested by the applicant. This would mean that the court is delving into the merits of the case in order to decide whether or not the recent invention was serious or otherwise. That the court cannot do. It would be different if the alleged recent invention was not such a thing at all because it had never been raised. This is what occurred in Guden supra at [19].
I am left in the situation where I have made a finding that jurisdictional error occurred in relation to one part of the Tribunal’s findings as to the applicant’s credibility but did not do so on the other. Should I grant the applicant the relief he seeks? I believe I should. I do not believe that the findings relating to recent invention are findings of such seriousness concerning the applicant’s credibility that they poison the well of his evidence: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 183 ALR 58 at [49]. It is possible that if the Tribunal had come to a more favourable view of the applicant’s credibility on the Sikh activist question, based upon his real claims, that it might have taken a different view as to recent invention. It should always be borne in mind that the applicant is seeking the protection of Australia because he has a subjective belief that if he returns to his country of origin he will be the subject of persecution. Where there exists some possibility that a different decision might be made if circumstances, which a court has found amount to jurisdictional error, are omitted from the equation then the application should be referred back to the Tribunal to be considered in accordance with law.
For the reasons given above I am prepared to grant review of this application to the applicant. I would declare that the decision of the Refugee Review Tribunal made on 7 July 2003 is void and of no effect. I refer the matter back to the Tribunal differently constituted to be heard and determined in accordance with law. I order that the respondent pay the applicant’s costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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