SZBPK v Minister for Immigration

[2005] FMCA 856

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPK v MINISTER FOR IMMIGRATION [2005] FMCA 856

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958

ReMinisterfor Immigration & Multicultural & Indigenous Affairs;Ex parte Applicant S20/2002 [2003] HCA 30
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairsv SCAR (2003) 198 ALR 293
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZBPK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2092 of 2003

Judgment of: Barnes FM

Hearing date: 7 June 2005

Delivered at: Sydney

Delivered on: 7 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms T Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed. 

2. That the applicant pay the respondent's costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2092 of 2003

SZBPK

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 10 September 2003 affirming a decision of the delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of India who arrived in Australia on 25 November 2001.  He applied for a protection visa and was given an opportunity, which he took, to comment on the country information the delegate considered to be adverse to his claims.  His application was refused.  He sought review by the Tribunal.  He was invited to attend a Tribunal hearing.  The Tribunal also sent the applicant a letter giving him an opportunity to comment on adverse information, being an Immigration Inspector's Report and country information, in an interview during the hearing.  The applicant attended the Tribunal hearing. 

2. In support of his application he had filed a number of documents.  The applicant claimed initially to have suffered and to fear persecution as a result of his Sikh faith and also his role as a witness against a Sikh activist, Kulvir Singh.  He claimed that he had been a witness against Kulvir Singh who had been convicted in a court case which received much publicity. 

3. He claimed that he had received threats, had asked the police for protection and received limited protection which was then not extended and that due to the threats from Kulvir Singh's followers he had to leave his village and go to New Delhi.  He claimed that the police then started to suspect him for having contact with other people related to Kulvir Singh's activities, detained him and started to question him about other people and that he had to pay a large sum of money to get released.  He then decided to leave India.  He left India in 1995 and travelled to Dubai.  He came to Australia in 2001 travelling on his own passport. 

4. The applicant submitted two affidavits in support of his protection visa application.  One was said to be by his father and attested to facts similar to those claimed by the applicant.  The second was said to be provided by the chief of the applicant’s village.  It stated that the applicant was a witness in the case against Kulvir Singh and was being looked for by police and that his family was being harassed by the police as well as by Kulvir Singh supporters.  

5. In its reasons for decision the Tribunal outlined the applicant’s claims and evidence, noted the contrary claims he had made about his reasons for travelling to Australia in the course of an airport interview conducted by an immigration inspector and outlined relevant country information in relation to conditions in India. 

6. The Tribunal addressed difficulties which it had with elements of the applicant’s evidence.  While it accepted some basic underlying claims about the identification of the applicant and his travel details, it rejected the other claims he made.  In particular it did not accept that the applicant would have been able to leave India legally if the authorities were interested in him, as according to independent evidence security checks at Indian airports were thorough.  It found this claim was not plausible and that the fact that he was able to leave India legally was consistent with the view that at that time he was of no interest to the authorities.  It so found. 

7. The Tribunal also found the initial statement of claims lodged with the protection visa application to be vague and general.  It did not accept as plausible that it would contain so few details.  Nor did it accept as plausible that the applicant failed to produce medical and corroborative police records he had flagged in his application as he had had ample opportunity to do so.  During the hearing the applicant claimed that he had never mentioned anything about medical reports in his application.  The Tribunal found this to be a material contradiction which had not been explained to its satisfaction. 

8. The Tribunal had regard to the limited knowledge that the applicant exhibited in the hearing in relation to Kulvir Singh despite the fact that he claimed to have been a witness at his trial.  The Tribunal found this aspect of his claims not to be plausible and his evidence not to be sufficiently detailed to be believable.  It did not accept his claim that he testified against Kulvir Singh as claimed.  Nor did it accept his vague claims to have received threats in connection with this matter. 

9. The Tribunal noted that during the hearing the applicant raised a fresh claim that at some point the police had arrested his father.  It did not accept as plausible that such a significant claim would not have been mentioned earlier in the process.  It did not accept the applicant's explanation for failing to do so given the invitations and opportunities he had had to elaborate on his claims.  It found this claim to be a recent invention, fabricated in order to create a refugee profile.  Nor did the Tribunal accept as plausible that the applicant would have returned to visit his family in Punjab while living in Delhi if in fact he had the fears which he claimed. 

10. Further, the Tribunal did not accept that if the applicant had been detained and questioned by the police as claimed in September or October 1993 it was plausible that he would have waited until July 1995 before leaving India if he had a fear of persecution during that time, had been threatened by Kulvir Singh's friends and detained by the police and since he had held a passport as at August 1992.  It did not accept as plausible that he had to wait because of lack of funds.  

    
    

    It considered that if he had really feared persecution as claimed he could have borrowed the funds.  The Tribunal found the fact that the applicant had waited so long before leaving India consistent with the view that he did not have a subjective fear of persecution and the Tribunal so found.  It did not accept the claim that he was detained by the police as claimed. 

11. The Tribunal found material contradictions which had not been satisfactorily explained in his claims about going into hiding.  It did not accept these claims or a new claim about the police going to his house again in 2000 (which it found to be a recent invention). 

12. The Tribunal also found a contradiction in the claims by the applicant's adviser that the applicant would be recognised as a political supporter and the applicant's claim that he was not a political supporter.  It did not accept that he was a political supporter. 

13. Finally, the Tribunal had regard to the two affidavits which had been submitted.  It did not accept that either was an authentic document. 

    
    

    It gave reasons for that finding.  In relation to both documents it had regard to the fact that it was easy to obtain false documents in India according to independent information, that the statements were vague and general without details, that no envelopes from India had been produced and (on the basis of the High Court decision In ReMinisterfor Immigration & Multicultural & Indigenous Affairs;Ex parte Applicant S20/2002 [2003] HCA 30) to its conclusion that the applicant had been totally untruthful in making his claims.

14. In relation to the affidavit purportedly sworn by the applicant's father it also had regard to the fact that it included a claim that the family was harassed which had never been raised by the applicant prior to the hearing.  In relation to the other affidavit it also had regard to the fact that it did not indicate how long the deponent had known the applicant. 

15. The Tribunal concluded that, taken as a whole, in light of the implausibility of key aspects of the claims, the fact that some were recent inventions, and some not sufficiently detailed to be believable, or were vague, that there were material or important contradictions, that some of the claims were at odds with independent evidence and some of the documents not authenticated, key aspects of the applicant's testimony were not credible.  It found that he was not a credible witness.  It was not satisfied he had a well-founded fear of persecution for a Convention reason. 

16. The applicant sought review of the Tribunal decision by application filed in this court on 8 October 2003.  He relies on an amended application filed on 9 February 2005.  The first ground of that application is as follows:

    1.   On page 43 of the Court Book:

    The statutory evidence of the applicant's father suggested that the applicant was subject to police harassment and had a fear of persecution from Kulvir Singh's followers.  This evidence was also confirmed in an affidavit of Sarpanch (head of village) on page 45 of the Court Book.  The Tribunal's findings on page 123 of the court Book are unreasonable and based on assumptions that the documents are easily obtained from India.  The Tribunal failed to take reasonable steps to investigate authenticity of these documents and accordingly fell into error. 

17. There are two aspects to this ground.  Dealing first with the claim that the Tribunal erred in failing to take reasonable steps to investigate the authenticity of the documents, in the circumstances of this case it has not been established that the Tribunal was under any duty to investigate the evidence provided by the applicant in support of his claims.  It was for the applicant to put material in support of his claims before the Tribunal.  There is nothing in the material before the court to suggest that the Tribunal undertook, or that this was otherwise a case in which the circumstances were such as to oblige the Tribunal, to carry out any investigation as contended.  Moreover, it is apparent from the Tribunal reasons for decision that the Tribunal did in fact conduct a thorough review of the applicant's evidence. 

18. As to the contention that the Tribunal findings in relation to the authenticity of the supporting affidavits were unreasonable and based on assumptions, first, these findings are not based merely on an assumption that documents are easily obtained from India, albeit independent evidence to this effect was part of the reasons relied on by the Tribunal.  Further, there is no basis for a complaint that the Tribunal reached a decision so unreasonable that no sensible person could ever dream that it lay within the powers of the Tribunal.  See Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 229 and Re Minister for Immigration & Multicultural & Indigenous Affairs (2003) 201 ALR 327. Moreover, one of the reasons given by the Tribunal for rejecting each of the affidavits was its reliance on the decision of the High Court in ReMinisterfor Immigration & Multicultural & Indigenous Affairs;Ex parte Applicant S20/2002 [2003] HCA 30. In that case McHugh and Gummow JJ stated at [49]:

    It cannot be irrational for a decision maker enjoined by statute to apply inquisitorial processes (as here) to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.

19. It was this paragraph to which the Tribunal referred in its reasons for decision.  It had already made significant adverse findings as to the applicant's credibility based on his evidence and independent evidence and found that he was not a credible witness.  The Tribunal reasons cannot be said to be unreasonable in a manner constituting jurisdictional error as contended.  Moreover the Tribunal did not rely solely upon the reasoning in Applicant S20 to reach its conclusion about rejecting the authenticity of the documents.  No error is established by ground one of the amended applications. 

20. The second ground of the amended application is:

    The Tribunal failed to apply the key element of the Convention which is “Persecution implies an element of motivation on the part of those who persecute for the infliction of harm” the element is present and is evidenced by reason of the motivation on the part of Kulvir Singh's followers. 

    By ignoring the evidence or at the very least misapply the Convention improperly, the Tribunal commit jurisdictional error. 

21. Such ground does not establish jurisdictional error.  The amended application refers to an “element” of the Refugees Convention being motivation of the persecutors (although this is a matter of interpretation not itself part of the Refugees Convention definition of refugee in Article 1A(2)).  Critically, the Tribunal rejected the applicant's claims to have been persecuted because of his role as a witness against Kulvir Singh.  In those circumstances, it cannot be said that the Tribunal ignored the applicant's claims or failed to apply the Convention definition.  It dealt with those claims but rejected them.  The applicant's claims in relation to motivation on the part of Kulvir Singh's followers did not have to be addressed as contended, given that the underlying basis for the claimed fear of Kulvir Singh's followers was not accepted by the Tribunal. 

22. Ground three is as follows:

    On page 115 of the court Book: 

    The Tribunal took into account irrelevant considerations in relation to determine the applicant's fear of persecution that:

    Because the applicant stayed in India for long time after his arrest and release before he left for Dubai therefore, he had no fear of persecution. 

    The Tribunal ignored that the applicant wished to leave the country but could not because of his financial circumstances.  His father paid all his savings, Rs 300,000 to the Police for his release.  The Tribunal erred by ignoring the fact that the applicant could not leave the country because of his financial circumstances. 

23. Such a claim is contrary to the Tribunal reasons for decision which set out the applicant's explanation for his failure to leave India and dealt specifically with the claim of lack of funds.  It found that it did not accept this claim as plausible and that if he had really feared persecution and had been threatened and detained as claimed, he could have borrowed money.  It found the fact that the applicant waited so long was consistent with its view that at the time of his departure he did not have a subjective fear of persecution.  In other words the Tribunal expressly had regard to the applicant's explanation for his failure to leave India at an earlier time and gave reasons for rejecting that explanation as implausible. 

24. Ground four claims generally that the Tribunal fell into jurisdictional error.  In oral submissions the applicant took issue with the fact-finding of the Tribunal and the merits of the Tribunal decision.  However, this is not a rehearing and merits review is not available in this court.  The applicant claimed that the Tribunal fell into error because it ignored his evidence and said that he was not a credible witness.  It has not been established that the Tribunal ignored the applicant's claims or failed to take into account relevant considerations.  Findings as to credibility are a matter for the Tribunal par excellence:Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J. The Tribunal's findings were open to it for the reasons that it gave on the material before it and the applicant's disagreement with its findings does not establish jurisdictional error.

25. The applicant also claimed that he had not been able to provide further corroborative evidence in the form of a police report.  However this claimed inability on the part of the applicant does not establish a jurisdictional error on the part of the Tribunal.  It was for the applicant to present information to the Tribunal to advance his argument that he had a well-founded fear of persecution for a Convention reason and for the Tribunal to determine whether the claim was made out on the basis of the information before it; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Haine JJ. (Also see Minister for Immigration & Multicultural & Indigenous Affairsv SCAR (2003) 198 ALR 293 at [36]).

26. As no jurisdictional error has been established the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The amount of $4,000 which is sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  21 June 2005.