SZCVN v Minister for Immigration - [2005] FMCA 534

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVN v MINISTER FOR IMMIGRATION

[2005] FMCA 534

MIGRATION – RRT decision – Indian claiming persecution by political parties due to possession of evidence on corruption – disbelieved by Tribunal – claim of medical incapacity at Tribunal hearing – no jurisdictional error found.

Migration Act 1958 (Cth), ss.91R(1)(a), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121

Applicant:

SZCVN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 540 of 2004

Judgment of:

Smith FM

Hearing date:

14 April 2005

Delivered at:

Sydney

Delivered on:

14 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr M Allatt

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondents costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 540 of 2004

SZCVN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 9 January 2004 and handed down on 3 February 2004. The Tribunal affirmed a decision of a delegate refusing the applicant’s application for a protection visa.
Section 483A gives the Court, “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that unless I can be satisfied that the Tribunal's decision is affected by jurisdictional error I have no power to set aside the decision and send the matter back to the Tribunal.
I have no power myself to decide whether the applicant's claims to be a refugee should be believed or whether he should be granted a protection visa. I cannot send the case back merely because I might have sympathy for an applicant or think he deserves a second hearing, if I am not satisfied that there is jurisdictional error.
In the present case, the applicant arrived in Australian on a temporary business visa in June 2003. He applied for a protection visa on

11 August 2003. In the body of his application he claimed Australia's protection so that he did not have to go back to India. He said that he had left that country because, “threatened to kill, life disability.” He said he feared that he would be murdered by the ruling party and opposition party. He said:
I have more evidence against ruling party to dissolve the government. So that opposition and ruling party hunting get my all information and evidence.
His application attached a one page typewritten statement in which, as the delegate accurately described it, claims were made which are incoherent, confused and contradictory. He claimed to have been assisting his father in a boat rental business in Tamil Nadu. He claimed that his father and the business had become involved in helping the LTTE and he claimed that he had been: “used as a pen name of their assets by the son” of a chief minister and was “responsible for looking after his property”. He said that in late 1997: “I was being chased by DMK people to give all the documents to them”. He said:
Then they came to know I am one of the main pen name for ex-political party. In October 20, 1999 my father was tortured and they killed my father. At the time I was in Japan to import some boat machinery for our company, after I had news I came to my father's funeral.
Then the DMK people took me and ask further documents to produce at Court against (the chief minister). I refused to give them and they punish me several physical tortured and they broken my leg. While I was in their custody one of the police officer came to me and said that 'you will be charged in many cases, and your life will be spoil'. After that I continued to give some documents to them, then they released me and I took some treatment.
He referred to further dealings with agents of the chief minister in which he was threatened, and said that he was advised by a close friend that:
You've been found by DMK and some opponents parties, they know that I've been involved to hide (the chief minister) scandals.
When refusing the application, the delegate referred to the lack of detail and complete absence of evidence provided by the applicant. He concluded that none of the claimed adverse events were actually experienced by the applicant, and consequently that he would not have any reason to fear Convention related harm in his home country in the foreseeable future.
The applicant appealed to the Refugee Review Tribunal on

21 September 2003 assisted by a migration agent, but no further details were presented to the Tribunal in support of his claims. The applicant attended a hearing on 6 June 2004 and gave evidence to the Tribunal.
The Tribunal sets out some extensive questioning by it of the applicant. It seems to have questioned him closely in an attempt to elucidate his confusing claims. There is nothing in its description of the hearing that suggests at all that the applicant experienced any difficulties of a medical nature in answering its questions, and there is no record in the evidence before me of any complaint being made that the applicant was suffering from any incapacity in that respect. As I shall discuss below, the applicant now claims that he was unfit to participate properly in the hearing.
Under the heading ‘Findings and Reasons’ the Tribunal says:
the applicant is claiming to fear harm from the two major political parties in his state of Tamil Nadu because he is in possession of knowledge relating to corrupt activities by the chief minister and her associates.
I think that shows in a summary way a proper appreciation of the claims made by the applicant. It then described its principal conclusion:
The Tribunal did not find the applicant to be a credible witness and does not accept his claims that he was threatened and attacked by political forces in the state where he lives. The Tribunal has reached this conclusion in the light of the fact that the applicant claims he has been forced to be involved in activities where he became privy to such politically sensitive knowledge since 1988 and that he has been subjected to attacks since 1997 and that his father was murdered in 1997 in connection with his claims. However, the applicant has been able to enter and depart India throughout this period and to have continued to live for much of the time in Tamil Nadu. The Tribunal further notes, as stated in the independent evidence cited in the primary decision, that the chief minister was indeed convicted for corruption in 1999 and managed to overcome these charges to again rise to the position of chief minister. This being so, the role of any evidence the applicant may be privy to would not appear to have been relevant since 1999.
The Tribunal went onto provide three further reasons for affirming the delegate's decision on the hypothesis “if the Tribunal is in fact wrong” in its principle conclusion. They were, first, that, if the applicant was in danger of harm from those he claimed to fear, then such harm would not be for a Convention reason, since their essential and significant motivation was not Convention related but was “criminally motivated in trying to silence him or use him in their own affairs.” The Tribunal's reference to ‘essential and significant’ motivation is a reference to the gloss put upon the Convention definition by s.91R(1)(a) of the Migration Act.
The second additional reason given by the Tribunal was that:
It is reasonable in his particular personal circumstances to relocate to some other city in India as he has done in the past to elude those allegedly trying to harm him.
The third additional reason was that his actions after the events which he referred to showed that he was not: “a person in fear of his life from political forces in Tamil Nadu”. The Tribunal thereby found the absence of the necessary subjective fear.
I am unable to find jurisdictional error made by the Tribunal in relation to any one of its reasons for affirming the delegate's decision. I also note that they all, in my view, turned upon an assessment of the applicant's personal claims and not upon an application of country information adversely to his claims.
The applicant has filed a number of documents in this Court in the course of his proceedings. He has told me today that he received assistance when preparing each of them from different people, and indeed while they are in familiar terms, their authorship appears to differ.
The first document is an application filed on 2 March 2004, which contains a list of general heads of judicial review which is familiar to the Court, and which is devoid of any particulars allowing any meaningful application of the general allegations to the particular decision. I do not think any of them gives rise to a point deserving of attention which I have not already dealt with above.
The applicant attended a first Court hearing before a Registrar on 26 June 2004, where he was assisted by a Tamil interpreter. He signed short minutes of order which directed him to:
File and serve an amended application giving complete particulars of each ground of review being relied on and any additional affidavit evidence by 15 October 2004.
At no point subsequently did the applicant file an affidavit putting forward facts to support a claim of medical unfitness to attend or participate in the hearing he attended. Indeed, this allegation has only surfaced for the first time at today's hearing as I shall describe below. Nor has the applicant filed any affidavit or other document deposing to any other unfairness or procedural irregularity in the course of the Tribunal's proceedings, including at the hearing. Although he has been in possession of the tapes of the hearing he has not sought to put evidence before me by way of a transcript.
He filed an amended application on 13 October 2004 which appears to allege that the Tribunal did not take into account relevant considerations. The particulars given being:
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group and the involvement with the politics in India.
The Tribunal's satisfaction that the applicant is not a refugee was not based on reasoning which provided a rational or logical foundation for this belief.
The Tribunal did not observe Migration Act properly to making the decision.
No details of those three allegations are provided in the document. On my reading of the Tribunal's decision and the material which was before it, I can find no support for any of them, in so far as they may claim jurisdictional errors.
The respondent moved the Court for a summary dismissal on the basis of non compliance with the Court's directions, due to the lack of meaningful particulars of the applicant’s grounds of review. When this was listed before me on 14 March 2005, the applicant opposed the motion by passing up a document called, "Written argument", which is a six page document signed by the applicant. I decided that the most efficient way to deal with the case was to bring it on for a final hearing, allowing the applicant a further opportunity to prepare his case and arguments. The final hearing was listed for today.
The written argument which the applicant passed up on 14 March 2005 is on the court file. It contains a collection of arguments familiar to the Court, but, so far as I can tell, with no reference to the decision of the present Tribunal. For example, there is a complaint about the Tribunal's decision that it was “Overwhelmingly dependent on DFAT report”, which is manifestly incorrect. There is also a contention that “Muin and Lie's case is perfectly identical with my case” and an elaboration of that proposition which the Court has seen before. It has no substance because of the fact that the Tribunal did not rely on country information. There is also a complete absence of evidence by the applicant that could give any substance to that ground.
The applicant took advantage of the adjournment to file a further written submission on 24 March 2005. This is a four page document signed by the applicant which is also on the Court file. I consider that all of it except paragraph 2 makes points which amount to no more than arguments seeking to obtain the Court's findings on the merits of his refugee claims, and does not give rise to a ground of jurisdictional error. I specifically reject contentions in paragraphs 10 and 11 that the Tribunal failed to properly address any part of the applicant's claims, since I consider that its findings sufficiently addressed all the matters that were put to it.
Paragraph 2 says baldly: “the applicant has not been granted procedural fairness”, without giving any substance to that proposition. Today, the applicant sought to give substance to this for the first time, by claiming that due to an accident a week prior to the Tribunal hearing on 6 January 2004 he lacked “peace of mind” to properly answer the questions of the Tribunal. I took this to be a claim that he was suffering from an incapacity which rendered his participation in the hearing not a real opportunity to appear (c.f. NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]).
I accordingly offered him the opportunity to give oral evidence about his claimed incapacity from the witness box, notwithstanding that he had not previously foreshadowed this claim nor put his evidence on affidavit. Mr Allatt for the Minister sensibly did not object to the absence of notice, and dealt with the applicant’s contention capably notwithstanding the lack of notice.
In his evidence, the applicant said that seven days prior to the interview he had knocked his head against a ‘No Parking’ sign, fallen, and suffered four to five minutes of giddiness, but had been okay after 10 to 15 minutes. He said he had suffered no other symptoms and had not sought any medical treatment. However, he said afterwards he was forgetful and could not remember things. He said he did not tell the Tribunal about any problem at the hearing nor subsequently. He had no medical or other corroborative evidence to present to this Court.
Under cross-examination he gave inconsistent answers in relation to why he had not referred to this matter in any of the documents he had filed in the Court with assistance. His primary response was that he had only just remembered the incident, and had forgotten to tell any of his helpers.
I accept Mr Allatt's submissions in respect of this evidence. I do not believe that the applicant suffered any accident which would have or could have caused him not to be capable of adequately responding to the Tribunal's questions and of presenting his case to the Tribunal at the hearing. It may be that indeed he collided with a ‘No Parking’ sign at some point, even a week prior to the hearing, but I am unable to make any finding that such an incident gave rise to symptoms of such seriousness that would impact upon his attendance at a Tribunal hearing one week later.
On all the evidence before me I do not accept that the Tribunal hearing was attended by a failure of procedural fairness due to an incapacity, unknown to the Tribunal, of the applicant to properly participate in its hearing. In this respect I have given some weight to the lack of any possible confirmation of the applicant’s claims in the Tribunal's narrative of the proceedings, but principally rely upon my failure to be satisfied by the applicant’s evidence.
For all the above reasons I consider that the applicant has not made out a ground of jurisdictional error affecting the Tribunal decision, and I dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 5 May 2005