SZCKG v Minister for Immigration - [2008] FMCA 1366

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCKG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1366

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(a); 424A(3)(b); 474; pt.8 div.2

SZJBE v Minister for Immigration and Citizenship [2007] FCA 190
SZBEL v Minister for Immigrationand Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZCKG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1617 of 2008

Judgment of:

Emmett FM

Hearing date:

30 September 2008

Date of last submission:

30 September 2008

Delivered at:

Sydney

Delivered on:

30 September 2008

REPRESENTATION

Applicant appeared in person assisted by a Tamil interpreter

Counsel for the Respondent:

Mr J. Knacksredt

Solicitors for the Respondent:

Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1617 of 2008

SZCKG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 25 February 2008 and handed down on 18 March 2008.
The applicant claims to be a citizen of India and fear persecution from Naxalites and the police in India (“the Applicant”).
The Applicant arrived in Australia on 18 January 2003 having departed legally from Chennai on a passport issued in his own name and a Temporary Resident (Class TE) visa issued on 9 January 2003.
On 28 January 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 26 March 2003, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 3 April 2003, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 19 November 2003, the Refugee Review Tribunal (“the First Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of the First Tribunal decision and, on 22 May 2008, Branson J of the Federal Court of Australia remitted the matter to the Refugee Review Tribunal for determination according to law.
On 11 September 2006, the Refugee Review Tribunal, differently constituted, (“the Second Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of the Second Tribunal decision and, on 26 December 2006, Smith FM remitted the matter by consent to the Refugee Review Tribunal for determination according to law.
On 17 April 2007, the Refugee Review Tribunal, again differently constituted, (“the Third Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sough judicial review of the Third Tribunal decision and, on 3 October 2007, Cameron FM remitted the matter by consent to the Refugee Review Tribunal for determination according to law.
On 25 February 2008, the Refugee Review Tribunal, again differently constituted, (“The Tribunal”), affirmed the decision of the Delegate not to grant a protection visa (“the Tribunal Decision”). This is the Refugee Review Tribunal decision currently under review.
On 24 June 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal Decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statutory declaration in support of his protection visa application in which he stated that he feared persecution by police and Naxalite groups in India. The Applicant claimed his father had been “involved with Makkal Poor Padai Naxalite activities” but had refused to help Naxalite groups.
The Applicant claimed:
a)he and his mother were recipients of verbal and physical abuse from the police in India;
b)he was arrested and charged with “false cases” and kept in custody for 30 days;
c)the Naxalite groups “thought I made a decision to my family to couldn’t help them” and sought to kill him;
d)that every day the Naxalites and police created problems for his family;
e)he then fled to Madras where he was again arrested by police, charged and held in custody for three months after which he appeared in court and was sent to Hyderbad Central Jail;
f)he was then tried in a “special court” and sent to Vijayavada jail;
g)when released on bail he moved to Bombay where “Police gave more troubles to me”, following which his friends organised his travel to Australia; and,
h)he fears he will be tortured and killed by police or the Naxalites if he returns to India.

The Tribunal’s review and decision

The Applicant gave oral evidence to each of the First Tribunal, the Second Tribunal and the Third Tribunal in support of his review application.
On 25 October 2007, the Tribunal wrote to the Applicant requesting additional information and inviting him to comment on information that the Tribunal considered may be a part of the reason for affirming the decision under review.
On 19 November 2007, the Applicant responded to the Tribunal’s letter. The Applicant’s letter did not address the information identified by the Tribunal that it considered may be a part of the reason for affirming the decision under review. Rather, the Applicant’s letter annexed various documents, being copies of certain news reports. None of the reports provided by the Applicant identified or referred to the Applicant in particular.
On 23 January 2008 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 21 February 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence in which he expanded upon his claims. The Applicant’s room mate in Australia also gave evidence on behalf of the Applicant that he had visited two villages in India and was told the police were looking for the Applicant and his parents and he should not ask about them.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“13. The Tribunal summarised the claims made by the Applicant to the First Respondent’s delegate (CB 290 to 291) and the evidence given by him to the first, second and third Tribunals (CB 291 to 300). The Tribunal also referred to the Section 424A Letter and the Applicant’s response (CB 297 to 300). The Tribunal then set out, in some detail, the evidence given by the Applicant during the fourth hearing (CB 300 to 305).
14. The Tribunal:
a. accepted that the Applicant is a citizen of India (CB 305.8));
b. found that:
i. the Applicant’s evidence was vague, inconsistent and lacked details (CB 306.4 to 306.7) and in some places was inherently implausible (CB 306.6, CB 309.6 to 309.7);
ii. the Applicant was willing to alter his evidence to improve it when tested (CB 306.8); and
iii. the Applicant was an unimpressive witness (CB 306.10; which is a relevant consideration in the assessment of an applicant’s credibility: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [34]);
c. for the reasons contained in paragraph 14(b) above as well as the fact that the Applicant was able to leave India legally without any difficulty (CB 308.2 to 308.5), found that the Applicant was not a credible witness (CB 306.4, 307.1, 308.2 and 309.5); and
d. accordingly, was not satisfied that (CB 307.7 to 307.10, 308.2, 308.6 and 309. 8 to 309.10):
i. the Applicant was ever subjected to serious harm by the police in India;
ii. the Applicant was ever harassed, repeatedly brought in for questioning, arrested, detained, brought before a court on charges under the NSA or jailed;
iii. the Applicant was ever put into prison by the police for a short period in order to scare him;
iv. the Applicant was ever questioned by the police in connection with his father’s alleged Naxalite involvement or for any other reason;
v. the police were searching for the Applicant at the time he left India;
vi. the police or anyone else had ever imputed to the Applicant a political opinion in favour of the Naxalites;
vii. there is any reason to believe that the police are searching for the Applicant or would wish to question, arrest, charge, detain or jail him or in any other way harm him if he were to return to India;
viii. the Applicant’s father was a Naxalite or had any involvement with the Naxalites;
ix. the Applicant or members of his family were ever harmed by Naxalites or threatened by them; and
x. there is any reason to believe that the Applicant would be harmed by Naxalites if he were to return to India.”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in an application filed on 24 June 2008.
The grounds of the application are expressed to be as follows:
“1. Breached of natural Justice and procedural fairness
2. Jurisdictional error” [sic]
The grounds were not supported by particulars and the Applicant confirmed that he had filed no evidence or submissions in support of his application. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.
The Court explained to the Applicant that his grounds as framed did not disclose any error capable of review by this Court and that, unless the Court was satisfied that the Tribunal’s decision is affected by a legal mistake, the Court has no jurisdiction to interfere with the Tribunal’s decision.
The Applicant told the Court that the submissions made by him to the Tribunal were not taken seriously. When the Court asked the Applicant in what way did the Tribunal not take his submission seriously, the Applicant responded that he did not know the law and could not go back to India. The Applicant made no other submission in support of his application for judicial review.
A fair reading of the Tribunal’s decision makes clear that the Tribunal identified the relevant law in considering whether or not the Applicant had a well-founded fear of persecution for a Convention-related reason. The Tribunal identified the Applicant’s written claims and his oral evidence given at each of the First Tribunal hearing, the Second Tribunal hearing and the Third Tribunal hearing. The Tribunal also identified independent information considered by the various Tribunals and listened to the audio tapes of the hearings. The Tribunal was satisfied that the summary of the Applicant’s evidence by each of the First Tribunal, the Second Tribunal and the Third Tribunal was accurate.
A fair reading of the Tribunal’s hearing makes clear that the Tribunal explored with the Applicant his claims of alleged past persecution by Naxalites and the police in India and his alleged fear. A fair reading of the Tribunal’s decision makes clear that the Tribunal identified for the Applicant during the hearing matters in his evidence about which it had concerns. The Tribunal noted the Applicant’s various responses and explanations. At the heart of the Tribunal’s affirming of the decision under review was its adverse credibility findings in respect of the Applicant arising from the Applicant’s failure to satisfactorily explain inconsistencies in his evidence and the lack of substantiation in respect of his claims.
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims of past persecution and harm in India at the hands of the Naxalites or the Indian police. The Tribunal found the Applicant’s evidence in respect of his claims to be inconsistent, both with earlier evidence and with evidence given to the Tribunal. The Tribunal found the Applicant to be “an unimpressive witness” and found that the Applicant “gave the appearance of being prepared to improve on his claims when pressed”.
The Tribunal had regard to the fact that the Applicant had told the Tribunal that “he was scared, did not know what questions were going to be asked, could not remember dates and had become confused about his family”. However, the Tribunal found that those assertions by the Applicant did not “adequately explain the problems identified with his evidence”.
The Tribunal had regard to the evidence of the Applicant’s witness and also found him not to be credible. Accordingly, the Tribunal placed no weight on the witness’s evidence in support of the Applicant’s claims.
The Tribunal found the Applicant’s claims about his alleged difficulties with the Naxalites and the police to be unsubstantiated. The Tribunal also found there was no evidence to indicate any change in his family’s circumstances in India since he left five years ago.
The Tribunal rejected the Applicant’s claims of ever having suffered harm at the hands of the Indian police. The Tribunal was “not satisfied that [the Applicant] was ever harassed, repeatedly brought in for questioning, arrested, detained, brought before a court on charges under the NSA or jailed.”
In making its adverse findings, the Tribunal, in part, relied upon evidence given by the Applicant at previous Tribunal hearings. There is no error in the Tribunal adopting such a course (SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [17])
By its letter dated 25 October 2007, the Tribunal gave the Applicant every opportunity to provide further information to it in support of the Applicant’s claims and identified information that may be part of the reason for affirming the decision under review. In the circumstances, the Applicant had adequate notice that his credibility was in issue (SZBEL v Minister for Immigrationand Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35], [37] and [47]).
The Tribunal put to the Applicant in its letter inconsistencies in his written claims and his oral evidence to previous Tribunals and inconsistencies in the Applicant’s evidence with independent country information.
Further, I accept the submission of counsel for the First Respondent that the information provided by the Tribunal to the Applicant in its letter dated 25 October 2007 was not information that enlivened the obligations of s.424A(1) of the Act because it related to inconsistencies in the Applicant’s claims and independent country information. Such information is excluded from the obligations of s.424A(1) of the Act by reason of ss.424A(3)(a) and (b) (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [17][-18]). Therefore, the Tribunal was not required to send its letter dated 25 October 2007.
In any event, the Tribunal explored in detail at the hearing the Applicant’s evidence and comprehensively put to the Applicant matters of concern it had about his claims. The Tribunal noted in detail the Applicant’s responses and explanations.
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal did not take the Applicant’s submissions seriously. As stated above in these Reasons, prior to the hearing, the Tribunal requested further information from the Applicant which the Applicant failed to provide. It also identified with specificity those matters of concern arising from the Applicant’s claims and evidence that may be part of its reason for affirming the decision under review and invited the Applicant to comment. As stated above in these Reasons, the Applicant made no relevant response.
In the circumstances, all the adverse finings made by the Tribunal were open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

Conclusion

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 30 September 2008