SZCZL v Minister for Immigration

[2005] FMCA 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCZL v MINISTER FOR IMMIGRATION [2005] FMCA 690

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

Migration Act 1958, s.424A

Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NAOO vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26
Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407

Applicant: SZCZL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 710 of 2004

Judgment of: Barnes FM

Hearing date: 19 May 2005

Delivered at: Sydney

Delivered on: 19 May 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 710 of 2004

SZCZL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) dated 20 October 1997 affirming a decision of a delegate of the respondent not to grant him a protection visa.  The applicant is a Sikh and a citizen of India.  He applied for a protection visa on 6 January 1996.  The application was refused and he sought review by the Tribunal. 

2. The applicant made a number of claims which included a fear based upon association with (and/or falling out from) a gang of young males, fears arising from alleged violence and extortion by the gang against his family including killing of his grandfather's brother, and also a claim that he was sought by the police as a result of his past experiences involving the gang. 

3. The claims made to the Department related primarily to feared extortion and fears arising out his actions in reporting criminal activity.  He claimed that death threats had been made to him and his family and demands for money made by the Commando Force Party. 

4. Prior to the Tribunal hearing, the Tribunal wrote to the applicant advising him that it was unable to make a favourable decision on the information before it, and inviting him to a hearing.  The applicant attended a Tribunal hearing with the assistance of an interpreter.  At the hearing he claimed to be a member of the Khalistan Commando Force who had been sought by the police. 

5. In its reasons for decision the Tribunal summarised the applicant's claims and evidence both prior to and at the time of the hearing. 

   
   

   It referred in some detail to inconsistencies in the applicant's claims and the evidence he had given at various times.  The Tribunal account of what had occurred in the hearing (which is the only evidence before the court of the Tribunal hearing) records that the Tribunal noted in the course of the hearing that the applicant's claims at the hearing were different to those made before the hearing, that the applicant was given an opportunity to address this inconsistency and that he stated that the evidence he gave at the hearing was the truth.  His witness is recorded as stating that the applicant said in his primary application what his employer told him to say.  When asked about the Departmental interview the applicant said the people he was staying with said ‘to say this and that’ and ‘whatever he was briefed’ he said.  He was nervous and not ‘very stable’. 

6. The Tribunal addressed inconsistencies between the applicant’s written and oral evidence and also in the oral evidence he had given to the Department compared to the oral evidence given to the Tribunal. 

   
   

   It considered a number of inconsistencies in relation to his personal and travel details, aspects of what he said had occurred in the past and aspects of the basis for his claimed fear of persecution.  It found aspects of his claims to be implausible and unconvincing.  The Tribunal noted various changes in his evidence.  Initially he had claimed to fear the ‘Commando Force Party’.  At the hearing he claimed his fear arose from membership of the ‘Commando Force’.  The Tribunal found elements of his claim implausible, including the claim that the one and only activity he had with a group such as the Khalistan Commando Force, would be a ‘shoot-out’ in 1989, where two trucks of police attacked and from which he escaped, given that independent information indicated that the group was one of the main Sikh terrorist groups.  The Tribunal also found it implausible that the police had been looking for the applicant since 1990, yet had not at any time detained or questioned him despite his frequent visits to his parents’ home and the closeness of the police camp to that home, and given that he had obtained a passport in his own name in 1990 (despite security checks being carried out before a passport issues in India).  The Tribunal also found his explanation for not making these claims at the departmental interview to be implausible, given their relevance to his protection visa application. Nor was there a satisfactory explanation for different accounts of the date his grandfather’s brother was killed, or for why he would stay with a group which killed his grandfather’s brother and threatened to kill him. 

7. The Tribunal found the applicant's evidence in the hearing unconvincing.  It did not accept the claims made at the hearing as genuine.  The Tribunal also rejected as implausible and lacking credibility the evidence of the applicant’s witness that when he visited the applicant's parents he was questioned by the police. 

8. The Tribunal found, in view of the applicant’s inconsistencies, that it was not possible to reach findings of fact as to the applicant's political views, his connection, if any, with the ‘Commando Force Party’, the political connection of the alleged ‘gang’ who extorted from his family and killed his grandfather's brother or the legality or otherwise of the applicant’s passport and exit from India.  It also found it impossible to reach findings of fact as to the circumstances of his relative's death (in light of the different accounts).  The Tribunal concluded that if the applicant returned to India, he would not face a real chance of persecution for a Convention reason.  It found on the basis of Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565, that even if extortion demands were made on the applicant’s family by rebels such demands were not for a Convention reason.

9. The Tribunal went on to provide an alternative basis for its conclusion that the applicant did not face a real chance of persecution and hence had no well-founded fear of persecution.  It found that even if the applicant had some connection with a militant group in 1989 and 1990, he had not been questioned or detained at any time before leaving India through the height of the government offensive against militant groups in the Punjab and surrounding areas including his home area, despite his visits home and the closeness of the police camp to his parent’s home.  It accepted on the basis of independent evidence to which it referred that the situation in Punjab and the surrounding areas, including the applicant's home area, had settled since 1993.  

10. The Tribunal commented that ‘in any case’ if the applicant was concerned about returning to his parents home, relocation ‘appears to be an option he could take to safeguard his security’.  It referred to matters such as the availability of employment for Sikhs, the secular nature of India, the fact that the applicant had stayed in Delhi in the past, his education and language skills, his maturity and family support.  It noted however that the issue of relocation was a personal choice for the applicant as it had found that it was not satisfied that if he returned to India he would face persecution for any Convention related reason. 

11. The applicant sought review of the Tribunal decision by application filed in this court on 15 March 2004.  The application contains five general and unparticularised grounds for review.  I have considered each of those grounds and the matters raised by the applicant today as well as all the material before me. 

12. The first ground is that the Tribunal did not provide an opportunity to the applicant to ‘respond against’ the material which it relied on in its decision.  No particular information or material was identified by the applicant.  The applicant stated in relation to this ground that the Tribunal did not give him a chance to tell something and just made a decision.  On the evidence before me it has not been established that the Tribunal failed to give the applicant an opportunity to respond to material.  Apart from the absence of particulars, there is no evidentiary basis for such a claim in the absence of a transcript of the Tribunal hearing.  This is not a case in which it is appropriate to infer on the basis of what is before me that particular issues were not raised with the applicant in the course of the Tribunal hearing.  See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at 21. The Tribunal reasons for decision do not purport to be a complete record of what occurred in the hearing, and indeed, the Tribunal is not obliged to set out all the questions and answers and everything put to an applicant during the hearing. Moreover it appears from the Tribunal's description of what occurred in the hearing that it in fact put matters of significance to the applicant. It raised inconsistencies and difficulties with his evidence with him and allowed him an opportunity to clarify matters. In particular, the Tribunal records that it invited his comment on changes that had occurred in his claims about matters such as the time that had passed without him being detained or interviewed by the police, the substance of country information about the situation in his part of India and the possibility of re-location. While not expressed in those terms, there is nothing in the claim made in the application to establish on the material before the court any breach of the rules of natural justice or any failure to comply with section 424A of the Migration Act 1958 (C’th). 

13. The second ground in the application was that the Tribunal's decision was based on Department of Foreign Affairs and Trade Information which was contradictory.  Again there are no particulars and no explanation was provided by the applicant as to what information was referred to in this ground.  Rather he stated that the Tribunal had not heard his claims properly and made its own decision.  However it is a matter for the Tribunal to decide what evidence to accept or reject and to determine the weight to be given to particular evidence.  The Tribunal is entitled to rely upon country information and indeed, while there is nothing to suggest that this was in fact the case, the Full Court of the Federal Court has said that there is no ground for judicial review if such information was not actually utilised properly.  See NAOO vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26 at 14.

14. Moreover, the Tribunal findings in relation to the primary reason for rejecting the applicant's claim to have a well-founded fear of persecution are based on the inadequacies, inconsistencies and implausibilities in his evidence.  The only reference in this part of the decision to material from DFAT is to a DFAT cable of 6 July 1991 in relation to security checks carried out before a passport issues in India.  There is nothing to suggest that there was any contradictory material on this issue. 

15. In reaching the alternative basis for its conclusion the Tribunal considered independent information in relation to the changed situation in the Punjab and surrounding areas.  The Tribunal does refer to two items of DFAT advice.  However there is nothing to indicate that there are any contradictions in that advice such as to give rise to a jurisdictional error or, indeed, in the material referred to in the Tribunal consideration of relocation. 

16. There is nothing in what has been put before the court to establish that the Tribunal made any error in the manner in which it considered this information or that its conclusions were not open to it for the reasons it gave on the material before it. 

17. The third ground is that the Tribunal ‘failed to find out the issues of the claims which is subject to persecution’.  No particulars are given.  The applicant explained that he had problems and he put his claims to the Tribunal.  The Tribunal identified and dealt with the applicant's claims, albeit it found inconsistencies.  The inability to reach findings of fact in relation to matters on which there was conflicting evidence meant that the Tribunal lacked the requisite satisfaction that the applicant met the applicable criteria for a protection visa.  There is nothing in the material before me to indicate that the Tribunal failed to deal with any aspect or integers of the applicant's claims. 

18. Fourthly, the applicant claimed that the Tribunal failed to articulate that Sikhs are vulnerable in Indian society.  He claimed in oral submissions that he had problems and that was why he was in Australia.  In so far as this or indeed the other claims seek merits review, merits review is not available in this court.  The Tribunal did consider the situation of Sikhs in India in so far as relevant, in addressing changes in the situation in the Punjab and surrounding areas.  Moreover, in so far as the applicant’s initial claims were based on the fact that he was Sikh, it is notable that at the Tribunal hearing he changed his claim to a claim of a fear based on his past membership of and activity with the Commando Force. 

19. The Tribunal also suggested that relocation ‘in many cases is a viable option for a Sikh who is reluctant to return to their home state’.  However, it is not clear that, as submitted by the respondent, the Tribunal in fact made a finding that relocation was a reasonable option for the applicant in his circumstances.  It did not state this expressly (suggesting that it appeared to be an option) and concluded by noting that the issue was a ‘personal choice’ for the applicant as it was not satisfied that he faced a real chance of persecution for a convention related reason.  However even if the Tribunal consideration of relocation did not provide a third independent basis for the Tribunal conclusion, no jurisdictional error has been identified in relation to either of the first and second bases for the Tribunal conclusion.  As the Tribunal recognised, it was not necessary for it to reach a concluded view in relation to the reasonableness of relocation for the applicant as it was not satisfied that he had a well-founded fear persecution. 

    
    

    If there were any jurisdictional error in its consideration of relocation, it is not an error that could have affected the decision given the alternative bases.  The Tribunal decision turned largely on its view of the applicant's credibility, a matter for the decision maker par excellence: Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [65] and [67] per McHugh J.

20. The final ground referred to in the application is that a jurisdictional error was committed.  This assertion does not establish such an error.  Nor is such an error apparent.

21. Finally the applicant's complaint today was that the Tribunal did not give him a chance to tell it his story or hear him, that it just made a decision and did not hear his claims properly.  In essence this appears to be a claim that he could not put his case to the Tribunal.  However as indicated above, the applicant was invited to a hearing.  He was told that the Tribunal could not make a favourable decision on the information before it.  The letter inviting him to the hearing stated that any new document or written arguments to support his claim should reach the Tribunal seven days before the hearing.  No such documents or arguments were provided.  The general claim about a lack of opportunity to present his case is also contrary to what the Tribunal records occurred in the Tribunal hearing.  As I have indicated above, the Tribunal reasons for decision indicate that significant matters were raised with the applicant.  He was given an opportunity to address such matters of significance.  Moreover, it cannot be inferred on the Tribunal reasons for decision that its account of what occurred in the hearing is exhaustive or that the applicant was not given an opportunity to say whatever else he wished.  No jurisdictional error has been established.  In light of that conclusion it is not necessary for me to consider the alternative argument put on behalf of the respondent which was that the court should dismiss the application on the basis that there had been unwarranted delay.  The application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  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 sought is appropriate in light of the nature of this and other similar matters and should be fixed at $4,500 in accordance with the Federal Magistrate Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  3 June 2005