SZCZN v Minister for Immigration & Anor
[2007] FMCA 1433
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1433 |
| MIGRATION – Whether applicant put on notice of critical issues for determination – whether s.425 breached – findings of fact open to the Tribunal – applicant notified of nature and extent of adverse issues. |
| Migration Act 1958 (Cth), ss. 412, 424A, 425, 474, 476 |
| Chen Xin He v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, R.D Nicholson J, 23 November 1995) Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 |
| Applicant: | SZCZN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3879 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 15 May 2007 |
| Date of Last Submission: | 15 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Godwin |
| Counsel for the Respondents: | Mr. Mitchell |
| Solicitors for the Respondents: | Mr. O. Young of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3879 of 2006
| SZCZN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 22 December 2006 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application was filed in Court by leave on 15 May 2007.
The applicant was born on 27 August 1974 and claims to be from India, of Shiromani Akali Dal (Mann) ethnicity and Sikh faith (“the applicant”).
The applicant arrived in Australia on 19 April 1996 on a visitor’s visa issued in Chandigarh, India.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 24 April 1996. In this application he claimed he would be persecuted for his political opinions and involvement in a group seeking a separatist state. The applicant claimed that brothers and friends had been brutally murdered. The applicant claimed that his residence had been raided by police, and when they failed to catch him, members of his family were severely beaten. The applicant claimed that the police continued to harass his parents to produce him, and he was afraid he would be killed if he returned to India (CB 6).
This application was refused by a delegate of the first respondent on 27 March 1997 (CB 41)
On 24 April 1997 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 55). The applicant gave oral evidence before the Tribunal on 11 February 1998 (CB 66) at which time he maintained the claims made in his original protection visa application.
On 19 February 1998 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa.
On 1 June 2006 orders were issued by Emmett FM of this Court quashing the decision of the Refugee Review Tribunal made on 19 February 1998, and remitting the matter to the Tribunal to be heard and determined according to law (CB 101).
On 25 November 2006 the second Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 168-172) (highlighting added):
The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under para.411(1)(c) of the Act. The Tribunal finds that the applicant has made a valid application for review under section 412 of the Act.
Essentially the applicant claims that he left his country and fears to return there because he feared/fears harm from police/authorities because of his political opinion, his religion and his ethnicity. He claims that he was and will be targeted by authorities because of his activities with the Shiromani Akali Dal/the Mann Party and because he is a Sikh, specifically a young Sikh. He claims that the police have an ongoing interest in him and he is the subject of charges/fabricated charges in India and that there are warrants for his arrest in India. He claims that he might also face harm as a member of a particular social group, that social group being “Sikh activists”. Further he claims that as a DIMA invoice sent to his address in India has come to the attention of police in India he will be persecuted further for this reason if he returns to his country as police will know he was detained by authorities in Australia. The applicant has also claimed that his family members were beaten and were/are harassed by police about him.
The Tribunal accepts that: "applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule." The Tribunal also accepts that: "if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt". (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para. 196). However, the Handbook also states (at para 203): "The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts".
It is for the Tribunal not only to consider inconsistencies but also to determine what evidence it finds credible (Nicholson J. in Chen Xin He v MIEA, 23 November, 1995 (unreported) at p.11). The Tribunal does not have to accept uncritically all statements and allegations made by an applicant. (Beaumont J in Randhawa v MIEA, 124 ALR 265 at p.278). "The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for reasons of political opinion. [it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out." (MIEA v Guo and Anor (1997) 144ALR 567 at 596).
The Tribunal accepts that in India there is sometimes discrimination against and human rights abuses of the Sikh people, including Sikh activists and those in custody. Clearly however the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country.
The Tribunal accepts that the applicant is a citizen of India and is who he says he is. It accepts that he left his country using a passport in his own name; he gave this oral evidence to the Tribunal at the last Tribunal hearing.
The Tribunal does not accept, on the evidence before it, that the applicant suffered the persecution from police/authorities in his country as he claims for the reasons that he claims; specifically the Tribunal does not accept that he was arrested/detained as he claims by authorities in his country or that he was in hiding as he claims prior to coming to Australia. It does not accept as true that there are arrest warrants outstanding in relation to him in India and that he will be arrested if he returns there. Further it does not accept as true that the DIMA invoice sent to the applicant at his correct address in India came to the attention of police as the applicant claims. It follows that the Tribunal does not accept that the applicant will be persecuted in his country because police in India know that the applicant was detained in Australia by immigration authorities. The Tribunal does not accept as true that the applicant left his country because of the persecution that he claims or that he fears to return there because he fears persecution in India. The reason that the Tribunal finds against the applicant in relation to these matters is that it does not accept that he is a witness of truth.
The Tribunal does not consider that it is consistent with the applicant’s claims that he was persecuted in his country from 1991, that he continued to live from that time at the one place which was an address relatively close to his family home. This was his oral evidence to the Tribunal. The applicant’s explanation for this was that police could not find him because they were not aware of this address and used to look for him at the family home. The Tribunal does not consider that this explanation is reasonable or plausible given that he told the Tribunal that his family home was only 30 kilometres away from where he was living. The Tribunal does not accept as true that the applicant was in hiding at any time prior to coming to Australia; he only mentioned he was in hiding when the Tribunal asked him how he managed to live without incident in his country from January 1996, when he said that a warrant was issued for his arrest, until he left India to come to Australia in April 1996. The applicant said that when he was asked about where he was living he just gave the address of the place where he spent most of his time but in the Tribunal’s view he had ample opportunity to tell the Tribunal he had been in hiding in his country when it asked him early in the hearing where he was living in his country prior to his coming to Australia.
Having regard to the country information about checks at airports, which was put to the applicant by the Tribunal and referred to by the last Tribunal in its written decision record at page 7 (DFAT Cable ND 84486, Refugee Information Request-India, 6 July 1992, CX2551) the Tribunal does not consider that it is consistent with the applicant’s claims that he was persecuted in his country, that he was able to exit his country using a passport in his name; he told the last Tribunal that the passport he used to exit his country was in his own name. The Tribunal does not accept that the document dated 26 January 1996 produced by the applicant is reliable evidence of the facts in that document. Given the available country information the Tribunal considers that if there were a warrant for the applicant’s arrest issued in January 1996 as he claims he would not have been able to leave India using a passport in his name even if he had been helped by the Party as he further claims.
Nor in the Tribunal’s view is it plausible that further warrants have been issued for the applicant in 2005, some nine years after he left. When the Tribunal asked the applicant why warrants would be issued so long after he left he said that they (the authorities) knew he would be back because of the DIMA invoice. The Tribunal does not consider that this is a reasonable explanation given that the DIMA invoice was sent to the applicant in India, according to the applicant’s own evidence to the Tribunal, in 2001. The Tribunal finds that the 2005 warrant documents produced by the applicant are not reliable evidence of the facts contained in those documents.
The Tribunal considers and finds that the applicant has given untruthful evidence to the Tribunal about working with the Mann Party in India. When the Tribunal questioned the applicant about the “many speeches” that he claims he gave while he was working with the Party during 1991 and 1996, he could give the Tribunal rudimentary and general answers only about those speeches. The Tribunal finds that the applicant was not and is not a member of the Mann Party as he claims, that he did not work for the Mann Party as he claims, and, to the extent that he claims to have done so, that he has not spoken in support of the party in Australia; the Tribunal finds that these claims were invented by the applicant to assist his application for protection.
As the applicant has found that the applicant was an untruthful witness it gives no weight to the letter described as from the Youth Wing Sharomni Akali Dal that appears to be dated 31 January 1997 which was produced in support of his claims after his application for protection was refused by DIMA. The applicant said in his oral evidence to the Tribunal that he obtained this document through the Party organiser in 1997 but first produced the document at the first Tribunal hearing which was held on 11 February 1998. He said he did not produce it in support of his application for protection earlier as he could not contact anyone and was not aware that he needed it. The Tribunal does not consider that this is a reasonable explanation for his non production of this document until Tribunal hearing date. Also, given the Tribunal’s finding that the applicant was not a truthful witness, it finds that the letter dated 31 May 2006 described as from the President of the Shiromani Akali Dal does not provide reliable evidence of the facts about the applicant contained in that letter.
The Tribunal does not accept as true that the applicant’s family members have been harmed or harassed by authorities in India as the applicant claims and that they moved from the family home but returned there in 2001.
The Tribunal accepts the applicant’s claims made in the submission to the Tribunal dated 12 September 2006 that while the applicant was still in Australia DIMA sent an invoice dated 6 December 2001 to the applicant’s address in India, which address was obtained by DIMA from his passport. This invoice, a copy of which was sent to the Tribunal by the applicant, was for his detention costs in Australia from 12 November 2001 until 3 December 2001. Because the Tribunal does not accept that the applicant is a credible witness it does not accept as true the applicant’s evidence that this invoice came into the hands of the police in India, that police made adverse comments about him because of this and that he will be of interest to police in India because they know about his detention in Australia from the invoice details, if he returns to his country. It does not accept that the copy of the facsimile letter dated 20 September 2006 described as from the advocate who took over the practice of the solicitor who received the DIMA invoice from police in India, who has himself died of a heart attack according to the letter, provides reliable evidence of the facts in that letter.
The Tribunal accepts that the applicant is Sikh although he does not have the traditional Sikh appearance and that he has attended the Sikh temple in Australia as he claims. There is no plausible evidence before the Tribunal that the applicant is a Sikh activist or that he will suffer serious harm in his country because of his ethnicity or his religion, including because of his attendance at the Sikh temple in Australia, if he returns to his country.
After the hearing on 16 and 17 October 2006 the applicant’s adviser sent a submission to the Tribunal, including a handwritten document forwarded by the applicant, stating that there were issues about the interpretation at the hearing which were raised by the applicant’s friend who was present during the hearing. The Tribunal accepts the clarification about the matters raised in the submission and the handwritten document. Although the applicant’s adviser speculated as follows-“It might well be that the evidence is adverse, and that there has been no error in interpretation in relation to that particular evidence. However, it might be the case that the interpretation was not accurate and that the Tribunal will be relying on an interpretation that is inaccurate, but is adverse to our client when it should not be so”- the Tribunal notes that, apart from the clarifications referred to in the submission dated 12 October 2006 and the enclosed handwritten document, no other specific problems have been raised by the applicant or his adviser about the interpretation at the hearing. A copy of the tapes of the hearing was provided to the applicant on 14 September 2006 after the hearing.
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered or will suffer persecution for a Convention reason, including because of his race, his religion, his political opinion or because he is a member of a particular social group, from Indian police/authorities or anyone else in his country either now or in the reasonably foreseeable future if he returns there. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in India within the meaning of the Convention.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out the following grounds and particulars:
(1)That the decision of the second respondent was affected by jurisdictional error:
(a)The second respondent failed to accord the applicant procedural fairness.
Particulars
i) The RRT did not adequately put the applicant on notice as to what the central and determinative issue in the review was (in addition to the matters relied upon by the delegate).
ii) The RRT failed to put the applicant on notice that it considered his claim that the police did not find him at is address in India to be implausible.
iii) The RRT failed to give the applicant an opportunity to address the assumptions underlying its finding that it was implausible that the police would not have found him if he lived at an address within 30 kilometres of his parents’ address.
b)The second respondent failed to reach its decision based upon logical reasoning supported by probative evidence.
Particulars
The RRT’s conclusion that the applicant was not a credible witness was determinative of the review. That conclusion was based, in part, upon the finding that it was implausible that the police would not have found the applicant if he lived at an address within 30 kilometres of his parents’ address. This finding is neither logical nor based upon probative evidence.
In his amended application, filed with his written submissions on 2 May 2007, the applicant set out the following grounds and particulars.
[The applicant repeats ground 1 and the particulars of the original application]
[The applicant adds the following particulars]:
Particulars
The conclusion was also based on upon the fact that the applicant had not told the RRT he had been hiding in his country when it asked him early in the hearing where he was living in his country prior to coming to Australia, when in fact the applicant had told the Tribunal that “because I had already joined the party and I was involved in party activities and because of that I was harassed by the police and also my family members were harassed by the police. That is the reason I left the house”, which, in effect, was a statement that he had gone into hiding. The Tribunal’s conclusion was thus not based upon probative evidence.
(c)The second respondent failed to comply with s.425 of the Act.
Particulars
The applicant repeats the particulars to ground 1.
Submissions for the applicant
Counsel for the applicant submitted that the application for review to the Tribunal, having been made in April 1996, was not affected by s.422B. The Court accepts that submission.
It was also submitted that
The applicant was not put on notice by the RRT that the plausibility of his claim that the police failed to find him… when he was living 30 kilometres from his family home, was going to be a critical issue in the review.
The fact that police could not find him 30 kilometres from where his parents lived was information given by the applicant for the purpose of the application, and is covered by the exception in s.424A(3)(b). The conclusion that the explanation was implausible was a subjective appraisal of the Tribunal. The Court refers to the following passages in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]:
Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
The Tribunal was not required by the Act to put the applicant on notice that it thought his claim was implausible. Section 424A was not breached. However, as found below, the Tribunal did put the applicant on notice.
The applicant alleges that
The RRT failed to give the applicant an opportunity to address the assumptions underlying its finding that it was implausible that the police would not have found him if he lived at an address within 30 kilometres of his parents address.
The Tribunal gave the applicant that opportunity, as it asked him “how it was that the police did not find him if he was living at an address only 30 kilometres away from his family home”, and it recorded his explanation (CB 163.9). The applicant referred to the responses to questions 120-133 in the transcript of the hearing before the Tribunal. The applicant’s explanations were rejected. This was a step in the prospective reasoning process of the Tribunal, and is not “information” covered by s.424A: SZBYR (ante).
The applicant referred to the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [43], where the High Court said that the Tribunal “did not say anything to [the applicant in that case] that would have revealed to him that these were live issues.” In the present case, the Tribunal indicated that how the applicant could live 30 kilometres from his parents without being found by the police was a live issue: it put to the applicant in
Question 133: But you were let go, you, you, on your version of events you were arrested many times, detained but always let go by the police. And you continued to live in your address, that same address for many years.
Also,
Question 210: So how do you think between January 1996 and April 1996, that you weren’t arrested pursuant to this warrant? Between the 26th January 1996 when it happened and when you left, how was it that you weren’t arrested?
Applicant: They were searching for me but they couldn’t find me.
Question 211: And why not? Why couldn’t they?
Obviously the Tribunal was indicating that it found the explanation hard to believe. This case is therefore distinguishable from SZBEL. This claim is rejected.
The next claim is that
the reasoning of the Tribunal was not based on inferences of fact supported by logical grounds and took into account an irrelevant consideration when it (sic) found the applicant’s account was not plausible because the police failed to find him when he was living 30 kilometres from his family home. There was simply no probative material to support the RRT’s finding in this respect. The finding was capricious.
The applicant claimed that he was persecuted in his country from 1991 (CB 170.2). The Tribunal found that
it does not consider [that claim to be] consistent with the applicant’s claims that he…continued to live from that time at the one place which was an address relatively close to his family home….The applicant’s explanation for this was that police could not find him because they were not aware of this address and used to look for him at the family home. The Tribunal does not consider that this explanation is reasonable or plausible given that he told the Tribunal that his family home was only 30 kilometres away from where he was living.
It was open to the Tribunal to consider that the allegation that the police could not find the applicant when he lived 30 kilometres from his family home relevant to the central question of whether the applicant was “persecuted in his country”. It was not an irrelevant consideration. The Tribunal had the applicant’s evidence before it about why the police could not find him. The reasoning processes of the Tribunal brought it to the conclusion that the claim was implausible. Therefore the applicant did not establish his claim. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
The Court accepts the following statement of the Tribunal (at CB 169.6):
It is for the Tribunal not only to consider inconsistencies but also to determine what evidence it finds credible (Nicholson J. in Chen Xin He v MIEA, 23 November, 1995 (unreported) at p.11). The Tribunal does not have to accept uncritically all statements and allegations made by an applicant. (Beaumont J in Randhawa v MIEA, 124 ALR 265 at p.278). “The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for reasons of political opinion. [it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.” (MIEA v Guo and Anor (1997) 144ALR 567 at 596).
The applicant refers to the decision in W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [67] that the “reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms”. The Court finds that the Tribunal complied with that process.
The Court rejects the claims that the reasoning of the Tribunal was not supported by logical grounds; that the issue was irrelevant, and that the finding was capricious. The determination has a rational basis. The test in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 that on a critical issue the Tribunal do more than reject evidence because it is implausible, was met as the Tribunal undertook a rational examination of the material before it. Also, the test in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 was complied with. It cannot be said that the Tribunal’s decision is arbitrary; its finding was made on logical grounds and on the material before it.
The decision in SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 was referred to, in particular the passage in [59] that refers to the Tribunal’s “bare, unsupported assertions that objective facts…were ‘somewhat implausible’”. In the current case, the finding of the Tribunal was properly open to it on the material before it. It did not reach its conclusion on bare unsupported assertions. The Tribunal set out its reasoning process at CB 170.2.
The decision in Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 was referred to, in particular paragraph [17] and the finding that “[t]he tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling.” In the present case, the Tribunal set out is reasoning process leading to its ultimate conclusion. In Tran, Justice Rares found what amounts to Wednesbury unreasonableness. No such finding could be made here.
The applicant then complains about the Tribunal concluding at CB 170.3 that it did not accept as true that the applicant was in hiding at any time prior to coming to Australia”, and says that the finding “was based upon the fact that the applicant had not made this claim when questioned at the commencement of the hearing…[about] where he was living prior to coming to Australia.” The Tribunal had concluded that it did not consider it reasonable or plausible that he could not be found by the police when the was living 30 kilometres away from his family home. The Tribunal then concluded (CB 170.3) that it did not accept that the applicant was in hiding at any time prior to coming to Australia. That was a finding of fact that was properly open to the Tribunal on the material before it. The applicant failed to establish his claim that he had been in hiding to the satisfaction of the Tribunal. The fact that the applicant had not made the claim at the commencement of the hearing was not the only factor that led the Tribunal to not accept the claim as true. When questioned by the Tribunal the applicant said he was “practically in hiding” (Question 176) apparently at some other address. The applicant then gave his explanation for not having mentioned this to the Tribunal earlier. Obviously the Tribunal did not accept that explanation. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
The applicant claims that the conclusion of the Tribunal rejecting the contention that the applicant was in hiding, was based on an erroneous assumption that the applicant had not provided the explanation earlier in the hearing. The Court rejects this contention. The late mention of the claim was not the sole reason that the Tribunal rejected the claim that the applicant was in hiding. The conclusion that the Tribunal did not accept that the police could not find the applicant at his residence 30 kilometers away from his family home was a factor leading to the conclusion that the Tribunal did not accept that the applicant had been in hiding “at any time” prior to coming to Australia.
Consideration of the claim that the applicant was in hiding, apparently at another address, followed immediately after the finding rejecting the claim that he could not be found while living 30 kilometres away from his family home. The conclusion that the applicant claimed that he was in hiding at the house he moved to immediately after leaving his family home, is supported by referring to the submissions for the applicant (at Transcript 13, line 15) that he “left to escape from the police or to go into practically hiding.” The Court notes that the words “practically hiding” were used also by the applicant in reference to the period of January to April 1996 (Transcript 16, line 27). The Tribunal then asked “ ‘well why didn’t you tell me that to start with?’ ” (Transcript 13, line 18). That therefore was a subsequent consideration. The use of the words “at any time” appear to include both periods that the applicant claimed he could not be found. It was open to the Tribunal to conclude on the material before it that the applicant was not hiding during either period.
The findings of the Tribunal depended to a substantial degree on the credibility of the applicant. The matters that the Tribunal did not accept are summarised at CB 169.8. The Tribunal set out other aspects of the applicant’s claim that it did not accept in subsequent paragraphs.
The Court refers to the decision in SZHQC v Minister for Immigration & Anor [2006] FMCA 1590 as follows:
It is not the function of judicial review by a court to review the findings of fact by the Refugee Review Tribunal, unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The applicant submits that there has been a breach of s.425, alleging that the Tribunal failed to raise with the applicant its concern as to the evidence that the police could not find him where he lived 30 kilometres from his family home. It is said that the Tribunal did not put to the applicant what the critical issue for determination is (Transcript 19, line 3). The Court is satisfied that the Tribunal raised its concern with the applicant. A breach of s.425 has not been established.
Submissions for the first respondent
The following submissions were made on behalf of the first respondent:
·As to “the applicant’s claims that he was persecuted…in India”, they “were not consistent with independent country information” that if he was “subject to a warrant for arrest…he would be able (sic “unable”) to leave the country in the manner in which [he] did.” That is “one of the bases upon which the applicant’s credibility is impugned” (Transcript 27, from 15).
·“The Tribunal formed the view that it…didn’t think that it was plausible…that warrants would be issued for the applicant’s arrest in 2005, some nine years after he left….the Tribunal was not satisfied with the applicant’s explanation” (Transcript 27, line 26).
·“His answers [about working for the Mann Party] were rudimentary in (sic “and”) general and didn’t support the applicant’s claims” (Transcript 27, line 34).
·These grounds for considering the truthfulness of the applicant are uncontested (Transcript 27, from line 36).
The Court accepts those submissions.
The first respondent submits that the applicant only contests the first basis (for impugning his credibility), that is, “that the applicant’s claims that the police didn’t know where he lived was inconsistent with his claims to have been arrested five or six times and that he lived only 30 kilometres away from his family home” (Transcript 27, from line 41).
The first respondent referred to the following passage in ReMinister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5]:
As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
And contends (Transcript 28, line 8)
I submit that is what has occurred in this case, that based on facts, this is probative material in the form of the applicant’s claims to have been persecuted between 1991 and 1996 some five or six times, now that is fact, and that is probative evidence, and based on his own claim that he only lived 30 kilometres from his family home, and that is a fact and probative material, the Tribunal member inferred that well – essentially inferred:
If they were able to find you five or six times to arrest you and detain you it seemed inconceivable that they would not know where you lived, despite knowing where your parents lived, despite having interrogated your parents on a number of –
Well I think the words used by the Tribunal member are “harassed”:
Despite having harassed your parents and your family at the family home that they didn’t know where you lived.
I would submit that that inference is open on the evidence. It is clear evidence that his family was harassed at their family home. There is clear evidence that he was arrested between 1991 and ’96 five or six times, on the applicant’s own evidence, and there is clear evidence that the place where the applicant was residing, or should I say living, is only 30 kilometres away from where his family home was, and based on that the Tribunal member inferred that it was not – it was not implausible. I submit that that inference is open on that material.
The Court accepts those submissions.
The first respondent further submits that the claim that the applicant “was in hiding” is “one of recent invention” (Transcript 29, line 15).
As to the claimed breach of s.425, by not putting the applicant on notice “of the determinative issues that arose from the applicant’s claims in evidence”, the first respondent says that “credibility was squarely an issue throughout the hearing” (referring to the Tribunal’s transcript, question 30 and 31 where the Tribunal said “it is really important today to tell me the truth as best you can remember”, and “if I don’t accept as true what you are saying about some of your claims it might mean that I don’t accept as true other things you tell me.”) The first respondent then refers to many passages where crediblity was raised as an issue (Transcript 31). The first respondent contends that the applicant’s claim that he couldn’t be discovered because he was not living at his family home, was squarely dealt with by the Tribunal at questions 132 and 133 as follows:
Question 132: Why do you think if you are living 30 kilometres from the family home as you told me you were – the police couldn’t find you; why was that?
Answer: When police used to arrest me I used to show them my licence and the address actually of the licence was actually the address of my family home so in fact the police were not aware of my exact address, where I was residing at that time.
Question 133: But you were let go – on your own version of events you were arrested many times, detained but always let go by the police and you continued to live in your address, that same address, for many years.
The Court accepts that the Tribunal raised with the applicant its concerns as to his evidence on this issue and put him on notice of the determinative issues that arose from his evidence.
The first respondent referred to the decision in Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [71] for the proposition that “the obligation to a accord procedural fairness does not attach to information that the applicant himself gave to the Tribunal as the applicant has, by giving his testimony to the Tribunal, been given an opportunity to give that evidence” (written submissions, p.3), and at [73]:
a decision-maker, or his or her delegate, is not required to comment on his or her mental processes, or preliminary views, prior to making the decision in question.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [32] it was affirmed that
the party affected [is] to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
The Court accepts those statements as to the obligation to accord procedural fairness, and finds nothing in s.425 that expands that obligation.
The Court finds that the Tribunal raised with the applicant its concerns about his evidence that the police could not find him when he had been arrested a number of times and lived 30 kilometres from his family home. He therefore could ascertain that whether he could be believed on that evidence was a relevant issue.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 20 August 2007
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