SZDCB v Minister for Immigration
[2006] FMCA 181
•3 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCB v MINISTER FOR IMMIGRATION | [2006] FMCA 181 |
| MIGRATION – Review of decision of RRT – whether the Tribunal failed to act in good faith by refusing to accept evidence provided by the applicant – where the Tribunal is obliged to achieve a state of satisfaction – whether the decision of the Tribunal is affected by bias. |
| Migration Act 1958 (Cth), s.65 |
| Minister for Immigration v SFAF of 2003 [2005] FAC FC 73 Ex parte Durairajasinghaam (2000) 168 ALR 407 Minister for Immigration v Rajalingham [1999] FCA 719 |
| Applicant: | SZDCB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 835 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 February 2006 |
| Date of Last Submission: | 3 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2006 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 835 of 2004
| SZDCB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 3 April 2002. On 16 May 2002, he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 21 November 2002, a delegate of the Minister refused to grant a protection visa and on 27 December 2002 the applicant applied for review of that decision. On 6 August 2003 the applicant attended a hearing before a member of the Tribunal but that member was, due to ill health, unable to complete the decision-making process and the matter was referred to another member. That member wrote to the applicant on 9 December 2003 advising him of the situation and informing him that the member had considered all the material before the Tribunal in relation to the application including the recording of the hearing but was unable to make a decision in the applicant's favour on this information alone. The applicant was invited to a further hearing on 13 February 2004. The applicant attended the hearing together with his migration agent. On 18 February 2004 the Tribunal determined to affirm the decision not to grant a protection visa. It handed that decision down on 9 March 2004.
The applicant claimed to have a well founded fear of persecution for the convention reason of political opinion. He told the Tribunal that he was a member of the Congress Party through whose influence he found a job in 1977. He remained with that employer until March 2002.
He said that he had been a member of the Congress Party since 1975 and worked as a Personal Adviser to a minister whose recommendation had assisted him in obtaining the position. The applicant told the Tribunal that he considered he should assist the Congress Party by giving it information concerning trade union activities. In about 1980, the applicant joined an affiliated trades union to the CPM which is the Communist Party (Marxist).
He had in an earlier statement suggested that he had joined a union associated with the CPIML which is the Communist Part of India Marxist Leninist. The applicant told the Tribunal that this was a mistake. In any event, the applicant felt that his obligation to inform upon a proposed union sponsored demonstration run by the PWG some time late 2001. As a result of his informing upon the meeting the Congress Party arranged for the police to stop the procession soon after it started. The applicant claimed that the PWG leaders found out about his involvement and placed him on a hit list. He then said that the same former minister advised him to leave the country and assisted him to arrange for a visa and an air ticket.
The Tribunal was very troubled that despite the fact that it had been suggested to the applicant over time that he obtain some corroboration of his membership of the Congress Party he was unable to do so.
He gave a number of excuses for this none of which the Tribunal were satisfied with. The Tribunal indicated that it felt that with his close connection to this former minister it would not have been very difficult to obtain some form of confirmation that he had been a member of the Congress Party. Likewise, there was concern that the applicant had not produced any corroborative evidence of his trades union involvement with CPM. The applicant alleged that the PWG through an agent of theirs called Kumar had been responsible for approximately three attempts on his life. Mr Kumar was a driver of a motor conveyance in which the applicant travelled from time to time. The Tribunal's view was that Mr Kumar was not a good driver, utilised stolen vehicles and naturally attempted to prevent the applicant from reporting accidents to the police as well as running away from the results of the last of those three incidents. The Tribunal was not satisfied that Mr Kumar had any connection whatsoever to the PWG. The gravamen of the Tribunal's decision was that it did not accept that the applicant had been a member of the Congress Party nor of the CPM or the union associated with it. Because he was not a member of the Congress Party there would have been no need for the applicant to have informed upon the PWG-sponsored meeting and if he had not done that there would be no need to fear a retaliatory attack from that organisation. The Tribunal's reasons for coming to this conclusion are set out in some detail between [CB 130 and 133] and appear to me to be logical and based upon evidence clearly before the Tribunal. On the face of the document, therefore, there is no indication that the Tribunal fell into jurisdictional error.
The applicant has provided me with some written submissions of 15 pages. He tells me they were provided for him by a community legal service. It is most unfortunate that the author of this document has not put his name to it. It is confused and not a great example of a legally trained mind. Mr Mitchell who appears on behalf of the Minister has also provided me with written submissions. He deals with each of the complaints in the applicant's document in turn. The applicant also filed an amended application for review. In that document he claims that the Tribunal did not act in good faith by deciding that it would not accept the applicant's evidence unless there was documentary evidence corroborating it. That is not an indicator of not acting in good faith, it is an indicator that the Tribunal wished to comply with it statutory obligation to achieve a state of satisfaction pursuant to s.65 of the Migration Act which is the constituent of the decision-making process: Minister for Immigration v SFAF of 2003 [2005] FAC FC 73.
The applicant complains in his amended application that the finding by the RRT that he did not provide information to the Congress Party about the affairs of the PWG was not open to it on the evidence before it. The only evidence before the Tribunal was that of the applicant.
He provided no corroborating evidence. The Tribunal was entitled as the finder of fact to come to a conclusion that the evidence provided by the applicant does not support his assertions and this court cannot interfere with such a finding where it is based upon a view of the credibility of the applicant which is for the Tribunal to consider as its function "par excellence": Ex parte Durairajasinghaam (2000) 168 ALR 407. The applicant complained that the Tribunal's decision was unreasonable because it was not open to it to find that the applicant did not provide information to the Congress Party about the affairs of the PWG. It most certainly was open to the Tribunal to make that finding. It made that finding based upon the assessment of the applicant's evidence which for the reasons it gave it did not find credible.
The applicant complains that the Tribunal did not assess whether there was any real chance that the applicant may have suffered persecution in circumstances where it had only held that it was not satisfied as to the existence of the applicant's claims and not held that the applicant's claims were untrue. This is an attempt by the applicant to bring into play the "what if I am wrong test". That test was best expressed by the Full Court in Minister for Immigration v Rajalingham [1999] FCA 719 where their Honours stated:
“When the RRT is uncertain as to whether an alleged event occurred, or finds, that although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place considering the ultimate question.”
The important thing about this decision is that it requires the Tribunal's decision to be based upon an uncertainty. If there is no uncertainty there is not necessity to apply the test. I cannot see from the words of the Tribunal that it had any doubt about its findings concerning the applicant's non-membership of the Congress Party.
Finally the applicant argues that the Tribunal's decision was unreasonable and the product of bias because it did not accept the applicant's evidence and because it reacquired independent evidence to corroborate the applicant's claims. This seems to me to be a repeat of the first claim. The Tribunal did not require corroboration by independent evidence. It pointed out that it had asked for it, that it had not been forthcoming, that the story told by the applicant would have indicated that it would not have been difficult for him to have obtained the evidence if his story had been true and as a result of the failure to provide the evidence the Tribunal was inclined to the view that the story was not true. I do not propose to deal with some of the other matters contained in the applicant's written submissions such as the paragraphs upon "harm from the perspective of the putative persecutor" or the paragraphs concerning relocation which, whilst having been discussed with the applicant, was not a ground for the decision.
I accept the submissions of Mr Mitchell that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision in this case and I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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