SZDOV v Minister for Immigration

[2004] FMCA 1076

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOV v MINISTER FOR IMMIGRATION [2004] FMCA 1076

MIGRATION – Refugee – access to information – credibility.

Applicant: SZDOV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1457 of 2004

Delivered on: 2 December 2004

Delivered at: Sydney

Hearing date: 2 December 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr. A. McInerney

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent's costs set in the amount of $4500 pursuant to Rule 21.02.(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1457 of 2004

SZDOV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me an application filed in this Court on 18 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 March 2004 and handed down on 22 April 2004 to affirm the decision of a delegate of the respondent Minister made on 21 November 2003 to refuse a protection visa to the applicant.

2. The applicant is a citizen of India. He arrived in Australia on 12 June 2003 and lodged an application for a protection visa with the respondent Minister's Department on 3 July 2003.  He claimed that because of his association with and as “primary member” [CB 42.5] of the Congress Party and other local decision making bodies, he faced threats to his life on several occasions during the late 1990s, and that he faced severe political persecution during the regime of the BJP (political opponents) as he had taken an active role in campaigning against religious fanaticism, the construction of the Rama Temple in Ayodhi, social inequality and political principles other than those of the Congress Party.  He also claimed that he was targetted by reason of his family status and business position in the community. For all these reasons the applicant said if he returns to India he fears he is at risk of persecution. 

3. The application to this Court sets out five grounds:

   1. The Tribunal misinformed the applicant in making a misleading statement that the Tribunal had no record of the applicant being associated with the Congress Party. That given the Tribunal's failure to explain how it could have gained access to membership details of the entire Congress Party, and the failure to give access to the applicant of the source of such information, the Tribunal's line of questioning was inappropriate and designed to confuse the applicant.

   2. The Tribunal erred in law by its failure to take into account the “consistencies” in the applicant's claims and gave undue consideration to the applicant's failure to provide documentary evidence from India to support his claims.

   3. The Tribunal erred in law by applying the wrong standard for determining a well founded fear of persecution.

   4. The Tribunal ignored considerations relevant to the applicant's credibility.

   5. There is no evidence that the applicant has received adequate State protection in the past or will receive it if he returns to India.

4. The applicant was unrepresented at the hearing before me today.  He was assisted by an interpreter in the Tamil language. I note that the applicant has not filed any amended application or written submissions as given the opportunity to do so by orders 2 and 4 of the Court's orders, made by consent, on 25 August 2004.  I also note that at that time the applicant was provided with the opportunity to participate in the Court’s Legal Advice Scheme, and he indicated that he did not wish to do so.

5. The Tribunal made a number of findings in relation to the applicant's claims and these are set out at paragraph 12 of the respondent's submission and cross referenced to relevant pages of the Court Book. 

   
   

   I thank Mr McInerney, Counsel for the respondent, for these submissions and I adopt paragraph 12 for the purposes of my judgment.

6. It is clear on a plain reading of the Tribunal's “Findings and Reasons” for its decision at CB 84.3-87.1, that the Tribunal based its decision on an adverse finding in relation to the applicant's credibility, finding that he manufactured claims and was contradictory and made inconsistent statements in his evidence before the Tribunal. It further found that as an ordinary member of the Congress Party the applicant did not have a political profile, and combined with the finding that key events claimed by the applicant to have occurred, did not in fact happen, therefore the applicant did not have a well founded fear of harm and persecution.

7. The Tribunal's decision was based on findings of facts including, a finding on credibility, which on the material before it was open to it to make.  It is well established that this is the role of a primary decision maker “par excellance”. Re MIMIA; Ex parte Durairajasingham [2000] HCA 1 in essence, the application failed on the facts found by the Tribunal on the adverse credibility finding and also on the basis that some of the applicant's claims were found not to be Refugee Convention related. 

8. Turning now to the grounds put forward by the applicant before this Court. The applicant asserts that he was misled by the Tribunal when it mistakenly informed the applicant that it had no record of his being associated with the Congress Party.  The applicant claims that this line of questioning was inappropriate and designed to confuse him.  Firstly, it should be noted that while the Tribunal raised this issue with the applicant [CB 69.5], on this point it made a finding that it was prepared to accept that he may have been an ordinary member of the Congress Party but that the critical issue was that it did not accept the applicant's claims of any particular profile that was consistent with being of concern or interest to the Congress Party opponents.

9. During the course of the hearing before me today I asked Mr McInerney, for the respondent Minister, to assist me in looking at whether there was any inconsistency, or need to reconcile the Tribunal's recording at CB 85.9, where the Tribunal states that the applicant said he was a member of the Congress Party and the Tribunal had put to him that no record had been found of his being associated with the Congress Party, and then the Tribunal’s subsequent findings based on this and on other findings that the applicant is not a credible witness, to reconcile this with the Tribunal's statement at CB 86.3 that the Tribunal was prepared to accept that he was an ordinary member of the Congress Party.

10. Mr McInerney submitted that even if there had been any want of logic, that the case of NACB v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, a Full Federal Court decision, is authority for the proposition that as their Honours said at [30]:

    “want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional”

    He also submitted that even if any inconsistency could be read into this then again this is a matter that involves findings of fact and not one that could lead to any error of law.

    First, it is clear that the Tribunal’s reliance on this point, was only one of a number of findings that supported the finding that the applicant was not a credible witness. Second, on probably a beneficial reading of the Tribunal’s decision record, the Tribunal’s subsequent finding that he was an ordinary member of the Congress Party can be seen as a benefit of the doubt concession of the part of the Tribunal. This is especially so when the Tribunal’s language is that it is “prepared to accept” that he was a member. Third, the Tribunal’s finding of “contradictory and inconsistent” [CB 86.1] is related to the applicant’s contradictory explanations as to why his name did not appear on the Congress Party lists. Combining these points with Mr. McInerney’s submissions, which I accept, the applicant is unable to sustain this ground.

    Further the applicant has not provided any evidence, nor is there anything before me to show that the line of questioning was improper or designed to confuse. 

11. Dealing with grounds 2 and 4 together, they essentially complain about the adverse finding as to the applicant's credibility or a failure to take into account relevant matters or considerations. As to the latter the applicant has not provided any particulars or evidence to support his claim. The reference to the UNHCR advice and benefit of the doubt can be seen as no more than an attempt by the applicant to argue that an applicant only need make claims and should therefore be believed. The Tribunal correctly sets out the relevant test [at CB 57] that pursuant to s 65(1) of the Act there is a need for the decision maker to be satisfied that the prescribed criteria have been satisfied. Further [at CB 85] the Tribunal specifically addressed the issue of benefit of doubt and how this should be applied in this case. This also applies as to how the Tribunal approached the issue of the applicant’s credibility and as I have already said these are matters for the Tribunal as the primary decision maker. I can see no error in the way the Tribunal considered the facts presented and the view that it took of them.

12. Ground 3 is an unsupported assertion, and in the absence of any particulars, and in the absence of anything else that I could see in what was put before me this ground cannot succeed. 

13. Ground 5 complains that there is no evidence that the applicant will be afforded State protection if he were to return to India. It is clear that at CB 86.8 the Tribunal found that the applicant did not have a well founded fear of persecution. As such it was not necessary for the Tribunal to go on to consider the issue of the adequacy of State protection.  The Tribunal's subsequent reference to “police” insofar as police can be seen to be an instrument of State involved in State protection, was clearly an attempt by the Tribunal to deal with a matter brought up by the applicant himself.  In the ultimate it found the events complained of did not happen and in that sense the applicant's reference to police failure to respond also can be said not have happened, because the Tribunal found the applicant did not make these requests in any event.

14. At the hearing before me today the applicant made much of the issue of the absence of documents to support his case, and in particular what the Tribunal made of this absence. On this point I accept the submissions made by Mr McInerney on behalf of the respondent Minister that the Tribunal dealt with this issue and I was referred to CB 67.3 where the Tribunal records that it asked the applicant whether he had any documents with him and records the applicant's statement that he did not have any documents and mentioned that his house had been searched and the documents were destroyed.

15. I was referred to CB 8 and in particular the applicant's answer to question 13, where he stated that when he was asked to list documents that he would be providing later that the applicant wrote "will be produced later."  The submission to me was that this is why the Tribunal asked the applicant as to the whereabouts of the documents that he himself had alluded to, and that the Tribunal pointed to the apparent inconsistency in the two claims made by the applicant, that is that he would produce documents and then later said that documents had been destroyed following the search and ransacking of his house. The Tribunal then went on to make adverse credibility findings.  I can find no error in what the Tribunal has done in this regard. 

16. Mindful of the fact that the applicant appeared unrepresented before me today I asked Mr McInerney as to the Tribunal's recording at CB 69.9. The Tribunal recorded that when it discussed with the applicant that it was unable to find any information in independent sources regarding a group named the “BJP Extremist Revolutionaries of the People's War Group”, a reference, which had been raised earlier by the applicant himself, the Tribunal recorded that the applicant said that at the time he did not understand what the war group was. That these were issues that he wanted to be written, and because of the fears that he held, he was suffering depression and loss of memory and his only thought was to protect and save his life.

17. Mr McInerney was able to satisfy me that the Tribunal adequately dealt with the issue put by the applicant where he stated that he was suffering depression and loss of memory. The Tribunal took that into account in its findings and reasons as evidenced by its reference at CB 85.8 and significantly that the taking into account of this statement by the Tribunal occurs essentially in that part of its record of decision that then deals with the ultimate finding that the applicant is not a credible witness. There is clearly nothing before me to show that the applicant lacked any capacity nor did the applicant make any such claim in relation to any inability to properly present his claims, and nor do I see that there was any obligation on the Tribunal to deal with this matter other than in the way that it did.  I can find no error in what the Tribunal has done in relation to this issue.

18. The Tribunal found the applicant was not a credible witness and did not have the political profile that he claimed and was not engaged in the activities he claimed. In relation to his family situation the Tribunal found these issues were not Convention related. In all the circumstances I can see no error in what the Tribunal has done, let alone jurisdictional error. Accordingly the application is dismissed.

    ORDERS DELIVERED 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  23 February 2005