SZCQT v Minister for Immigration - [2006] FMCA 521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCQT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 521

MIGRATION – RRT decision – Indian Sikh farmer claiming discriminatory evictions – claims rejected by Tribunal – general adverse finding on credibility – whether part of reason for affirming decision – reference to inconsistency as to date of birth and birthplace in visa application – failure to serve s.424A(1) invitation – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZFHF v Minister for Immigration [2006] FMCA 257
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231

Applicant:

SZCQT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG313 of 2004

Judgment of:

Smith FM

Hearing date:

5 April 2006

Delivered at:

Sydney

Delivered on:

5 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 16 December 2003 and handed down on 13 January 2004 in matter N03/46697.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 30 May 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG313 of 2004

SZCQT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 9 February 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 December 2003 and handed down on 13 January 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The applicant’s application and amended application filed in the Court follow precedents which provide little assistance in identifying any jurisdictional errors. However, it is unnecessary for me to address them. This is because counsel for the Minister in her written outline of submissions identified an issue arising following the Full Court decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) which deserves the attention of the Court.
I consider that this was a proper course for the Minister to take, and have explored the issue fully with counsel for the Minister. The applicant was understandably unable to assist the argument. I have concluded that the Tribunal’s decision is affected by jurisdictional error and that the applicant is entitled to relief, by reason of a failure by the Tribunal to follow the mandatory procedure required by s.424A(1) of the Migration Act. Such errors were found in the various appeals comprising SZEEU, and it is unnecessary for me to explain the basis upon which such an error amounts to jurisdictional error justifying orders by way of certiorari and mandamus.
The relevant circumstances in the present case are as follows. The applicant arrived in Australia in December 2002, and on 30 January 2003 he lodged an application for a protection visa. The application form contained references at two points to the applicant having a date of birth “10/07/48”, and at one point to his place of birth being Jalandhar in India. Attached to the form was a document headed “Statement” which stated:
I [the applicant] belong to village [name], District Kurekshetra. …
I am settled at the above mentioned village along with my parents since my birth.
The statement explained how his family and a number of other Sikh families had migrated to the area of his village from Pakistan. In 1956 they were allotted jungle land adjacent to their village on 20 year leases, which became renewable annually. The applicant’s parents “worked hard on this land and made it arable”. He said:
Our area is all Punjabi speaking area is adjoining to our lands. At the time of division of Punjab our lands were intentionally put under Haryana though majority of population of this area was of Sikhs and was Punjabi speaking.
From the late 1990s Hindu Jats in the area sought to force his family and other Sikh residents from their land. He claimed to have suffered physical attacks, and that the police and authorities in Haryana State refused to give assistance and protection, despite various steps taken to invoke protection. He said his two brothers, who had been in the Indian army, left the army and that this brought further harassment of the family by state authorities. After being refused a passport he obtained one by paying a bribe. He said: “I had to change my date of birth. My actual date of birth 6.4.1961”. His statement concluded:
Throughout my life I have done farming. We are now discriminated by the Haryana Government because we are Sikhs. We are being expelled from our lands by the local people who are Hindus.
These Hindus are supported by the Government authorities.
There are some Hindu Jats who also lease lands in similar way as we are doing. They do not face such problem at all.
Secondly I belong to a family in which two brothers have left army. One of them has been charged by Military police and he is still under their custody.
Our family is being targeted as Anti India and we are humiliated [as] terrorists.
I belong to such a social group which do not have any support of the local authorities or Indian authorities.
My life is in danger if I go back to India. I seek your protection.
A delegate refused the application on 30 May 2003, and the applicant appealed to the Tribunal on 22 June 2003. As with his original visa application, he disclosed no assistance from a migration agent or any other person.
On 8 December 2003 the applicant attended a hearing to which he was invited by the Tribunal. A transcript of what was said is not in evidence, but the Tribunal gave a description of its questioning. Its description commenced:
Claims at the hearing
The Tribunal attempted to clarify basic discrepancies in information provided by the applicant. As regards his date of birth: entered as 10 July 1948 in his passport and on his PV application, the applicant claimed his date of birth was 6 June 1961. Again, he said that he was born and lived Kurushestra district in Haryana state though his PV application indicates that he was born in Jalandahar (in Punjab state). The applicant gave no coherent explanation for these basic discrepancies despite being asked to do so.
The Tribunal questioned him about his claims, and at various points said that his explanations and statements were “vague and evasive”, “confused” and “not coherent”. At the end of its description of the hearing, the Tribunal said:
Asked what might happen to him if he returned, he said he would be beaten, even killed. Asked to explain this claim in the light of his family’s continuous residence on their land and as their land claims are accepted by the courts, he said he was a leader of 4‑5 movements; he corrected this to say he was perceived as a leader.
It was put to him that the delegate found, and I am inclined to agree, that relocation was open to him. He said he lacked the money and he would not have his land. When it was pointed out that these factors did not inhibit his desire to live in Australia, he said it would be unsafe for him anywhere in India; the villagers could find him anywhere in that country.
The Tribunal’s reasons for affirming the delegate’s decision occupy some four pages. At the commencement of its “Findings and Reasons”, the Tribunal said:
I find that the applicant is a citizen of India who arrived in Australia on 29 December 2002 and that he remains here as non‑citizen.
The applicant claims to have been harmed by militant Hindus because he is a Sikh. He also claims to be from low caste Lubhana but made no claims in relation to his caste.
I find the applicant to be an unreliable witness. He has provided inconsistent information about his biographic details such as the date and place of his birth and has given no satisfactory explanation for the inconsistencies when these were put to him. At several instances he narrated his claims in an inconsistent and confused way and without the defining detail expected from one who claims to have experienced serious harm. In all, I am not satisfied that the applicant has dealt truthfully with the Tribunal; rather he seems to have fabricated some of his claims to strengthen his chances of a favourable outcome. (emphasis added)
The Tribunal then addressed elements in the factual claims of the applicant in separate paragraphs, making adverse findings as to each:
The applicant claims to have been in a protracted land dispute with some six members of his village and with unnamed others. The applicant submitted evidence to support his claim that he is involved in a land dispute. I note the claim that the applicant’s family remains in the village of [name] and retain half of the land made available to them by the authorities in 1956. I accept the claim that the applicant has been in a land dispute and that the rival claimants, or at least some of them, might be Hindus as he claims. However, on the evidence before me I am not satisfied that the essential reason why claims have been made against the land of the applicant and his family is because they are Sikhs or for any other Convention reason.
He claims that Hindu Jats attempted to evict his family from the land in 1998. At the hearing he gave a confused account of who tried to evict him; what the eviction entailed; and, the reason for the attempted eviction – which he says did not succeed. The Tribunal has found no information to support the claim that the Jats were actively trying to evict Sikh farmers in Haryana state. On the evidence I am not satisfied that Hindu Jats attempted to evict the applicant and his family from their land as he claims. As I do not accept the harm by the Jats, it follows that I do not accept that the police refused, some years after the claimed incidents, to accept a report of the incidents. I note the applicant did not produce a copy of the claimed report and that he gave no satisfactory explanation as to why the report was made some time after the claimed incidents took place.
The applicant claims that various Hindu activists, belonging to the BJP, Indian Lok Dal and supporters of the Chatula government, tried to evict his family from their land and are attempting to take the land from them by litigation. These claims have been made with little detail and often in a confusing manner. The claimed Hindu affiliations of the rival claimants was made in such vague terms as to lead me to believe that the applicant was speculating or surmising that those who seek to take his land are affiliated to Hindu organisations. These claims were also made without supporting material though the applicant states that the land dispute and the attempts to evict his family were known by locals and reported locally. I note that the Tribunal found no information about Hindu activists dispossessing Sikh farmers from their land in Haryana. I have accepted that the claim that some six individuals have challenged the applicant’s claim to land in the courts. However I am not satisfied that those who attempt to dispossess the applicant have done so by violent means or that they are Hindu activists who have targeted the applicant and his family because they are Sikhs.
The applicant claims, in ambiguous terms, that the police did not respond to his several reports about the Hindu activists, known to him, who violently attempted to evict him and his family from their land. I note that the applicant claims to have presented reports to the police but has not produced a single example of these reports. I note that the applicant gave a vague and unsatisfactory explanation as to why the police refused to accept formal complaints and why they sided with the rival claimants. As I have not accepted that the claimants used violent means to dispossess the applicant it follows that I do not accept that the police refused to act against the claimed evictions. I also note that the applicant’s family continues to hold at least half the land at issue and so the claimed eviction attempts were unsuccessful.
The Tribunal then dealt with further aspects of the applicant’s claims, including those relating to his brothers, and the circumstances when a petition was sought to be presented to the district Deputy Commissioner. As with the findings extracted above, the Tribunal framed its conclusions in terms of “I am not satisfied” as to these claims.
The Tribunal then discussed what it said was a claim by the applicant “that he belongs to a particular social group, one that is denied the protection of the authorities”. It referred to Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”), and did not regard the social group in the claim identified by it as satisfying the tests approved in Applicant A. It concluded:
Therefore, I do not accept that the applicant belongs to a particular social group which is set aside because it is denied state protection.
The Tribunal’s reasoning in that respect is probably correct, but I am concerned whether the Tribunal misstated the particular social group which lay at the heart of the applicant’s claims for protection. This was, or included, a particular group of Sikh farmers in Haryana who were subject to persecution for which state protection was denied, by reason of objectively apparent characteristics including their race, religion, location and land tenure. The applicant’s claimed social group was not defined merely by the fact of persecution, and appears to me to have been plainly within the Convention reference to “membership of a particular social group”, but it was not so identified by the Tribunal. However, in view of my conclusions about the Tribunal’s failure to follow s.424A(1), I do not need to explore this issue further.
The Tribunal’s concluding paragraphs were:
As I have accepted that the applicant was involved in a protracted land dispute that might have been socially divisive, I accept that he might have a subjective fear of returning to his community. However, the independent information I have cited above indicates that relocation is a reasonable option for Sikhs in India. I find the applicant’s claim that the villagers would find him anywhere in India implausible. To locate a person who can live anywhere on the sub‑continent is surely beyond the capabilities of most people, especially villagers from a poor country. The capability to inflict harm outside the immediate village environment also seems implausible. The applicant also claims that he would not have his land and would not have the money for relocation. I do not accept these claims as the loss of land did not deter the applicant to seek to live in Australia and as money has not deterred the applicant from coming to this country. On the evidence before me I find that relocation is reasonable in the applicant’s circumstances.
I find that the applicant did [not] suffer persecution at the hands of Hindu activists or the police because he is a Sikh as he claims or, that he suffered Convention harm for any other reason. I also find that his fear of returning to India is not well‑founded and that there is no real chance that he will meet with Convention related harm if he returns now or in the foreseeable future.
I had a concern arising from this discussion, as to whether the Tribunal properly addressed the reasonableness of relocation for this applicant and his family within India, noting that they were rural villagers being forced off their land, and noting other aspects of the applicant’s personal and family background. However, due to the error I explain below, I have not needed to address whether the Tribunal made a further error in relation to its consideration of the issue of relocation.
Section 424A(1) requires the Tribunal to serve a written invitation for written comments concerning information “that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The issue as to compliance with this obligation in the present case, concerns the sentence at the commencement of the Tribunal reasoning, which I have emphasised in the passage extracted above at [12]:
He has provided inconsistent information about his biographic details such as the date and place of his birth and has given no satisfactory explanation for the inconsistencies when these were put to him.
Counsel for the Minister accepted that it was appropriate to read the reference to inconsistent information being provided, as being or encompassing a reference to information which the Tribunal took from the applicant’s protection visa application in relation to his date of birth and place of birth. There is therefore no issue that the Tribunal has relied upon “prior” information in this sentence, so that the exclusion in s.424A(3)(b) cannot be invoked by the Minister.
The issue which was raised by counsel for the Minister was whether that information provided “a part of the reason” for the Tribunal affirming the delegate’s decision.
Looking at the immediate context of the sentence, she submitted that it could be read in isolation from the surrounding sentences in the paragraph, so as to be a mere obiter observation by the Tribunal. However, I am unable to give it that reading. In my opinion, the Tribunal has provided the sentence as its first reason for its dominant finding which opens the paragraph: “I find the applicant to be an unreliable witness”.
I also consider that the Tribunal has provided the sentence as a reason explaining its subsequent sentences in the paragraph. That is, as a reason for making general adverse findings that the applicant had not “dealt truthfully with the Tribunal” and that he had “fabricated some of his claims to strengthen his chances of a favourable outcome”.
Counsel for the Minister then submitted, alternatively, that the paragraph containing the general findings on credibility could be isolated from the subsequent reasoning of the Tribunal. She argued that it was not provided by the Tribunal as explaining its reasons for arriving at its series of adverse findings found in the paragraphs I have set out above. These adverse findings could, therefore, provide an independent basis for the Tribunal’s decision.

However, I do not accept this submission. In my opinion, where the Tribunal has opened its reasoning with general adverse credibility findings, and then has arrived at reasons for rejecting specific elements which are framed in terms of “I am not satisfied”, it is clear that the Tribunal has drawn from the general adverse credibility findings in arriving at its inability to be satisfied about particular elements in the applicant’s claims. It is true that the Tribunal provided additional reasons explaining its various particular conclusions, but I consider that its general opinion of the applicant’s credibility affected its reasoning throughout, and that its general findings on credibility explain in part its adverse conclusions. This, in my opinion, becomes clear from the repeated reference by the Tribunal to the absence of corroborative documents as informing its inability to be satisfied. Clearly, the Tribunal has felt there was a need for corroboration because of its generally adverse opinion of the applicant’s credibility.
I therefore consider that the Tribunal’s reason for rejecting the central claims of the applicant to have suffered persecution in India by reason of the failure of state authorities to afford protection to him and his fellow Sikh leaseholders was, in part, its general credibility finding. A part of the reason for that finding was, in my opinion, the information taken from the protection visa application which the Tribunal regarded as showing inconsistency.
It is now clear from the judgments in SZEEU that such a reason based on inconsistency will relevantly show the use of information requiring the service of a s.424A(1) notice, even where the Tribunal does not positively adopt or prefer the “prior” information. I have recently discussed the relevant passages in SZEEU in a reserved judgment in SZFHF v Minister for Immigration [2006] FMCA 257, and it is unnecessary for me to extract them again. There is also clear authority in SZEEU that the Court should not engage in an exercise of assessing the relative strengths of various reasons given by a Tribunal for affirming a delegate’s decision, and that it is enough that the prior information was a reason or a part of the reason, even if it was only subsidiary or minor. See, for example, Allsop J at [215] and [227], and Weinberg J at [158] and [164] in SZEEU. See also the opinion of Young J in VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [50] where his Honour said:
It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal’s decision.
Counsel for the Minister’s third argument was that the failure to serve a s.424A(1) notice should not give rise to an entitlement to relief because the Tribunal’s reasoning in relation to relocation provided “a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A” (see Allsop J in SZEEU at [233], approving the reasoning previously suggested by North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33]).
I have set out above at [17] the Tribunal’s reasoning about relocation. However, like Allsop J in SZEEU, I am not persuaded that this finding by the Tribunal was unaffected by the Tribunal’s general adverse view of the applicant’s credibility, and its earlier rejection of central claims in his history of persecution. In particular, I am unable to read that paragraph as proceeding upon reasoning in which the Tribunal accepted or assumed the truth of all of the applicant’s claims to have been denied state protection at various levels of government in India. The opening sentence of the Tribunal’s reasoning about relocation, in my opinion, indicates the contrary. It states that the Tribunal was only prepared to accept that the applicant had been “involved in a protracted land dispute that might have been socially divisive”, and shows that the assessment of relocation proceeded upon that finding. I consider that the relocation finding was infected by the Tribunal’s previous reasoning which itself was affected by jurisdictional error. In the language of Allsop J at in SZEEU at [234]: “The influence of credit appears to me to pervade the whole of the reasons of the Tribunal” (see also Moore J at [14] and Weinberg J at [165]).
For the above reasons, I consider that the Tribunal’s decision was affected by jurisdictional error, and the applicant is entitled to relief by way of writs of certiorari and mandamus. No discretionary reason arises for refusing that relief to the applicant on a proper understanding of the Court’s discretion as explained in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 19 April 2006