SZDPH v Minister for Immigration
[2005] FMCA 232
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPH & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 232 |
| MIGRATION – RRT decision – Indian claiming political persecution – disbelieved by Tribunal – no error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
| Applicants: | SZDPH & SZDWN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1493 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 17 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Singh |
| Solicitors for the Applicants: | Jack Singh Solicitor & Associates |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicants to pay the respondent’s costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1493 of 2004
| SZDPH & SZDWN |
Applicants
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) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 13 April 2004. The Tribunal affirmed a decision of the delegate taken on 11 November 2003 refusing a protection visa to the applicants, a husband and wife. The wife made no claims for protection separate to those which were put forward by her husband, and I shall refer to the husband as “the applicant”.
Under s.483A the Court has “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in relation to matters such as the present is the jurisdiction under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 those limitations require this Court to identify jurisdictional error in the proceedings or reasons of the Tribunal before the Court has the power to set aside the Tribunal decision and remit the matter for re‑hearing.
The present applicant and his wife arrived in Australia in May 2003 on a three month visitor’s visit. On 30 June 2003, Jack Singh Solicitor & Associates, who are also Migration Agents, lodged a protection visa on their behalf. In the application they indicated that they would later provide documents in support, being newspaper cuttings and “Advocate’s letter from India”.
The application attached an unsworn statement by the applicant narrating circumstances upon which his application relied. The Tribunal subsequently summarised this in a manner which I consider to be sufficient and accurate (CB 86):
Application statement
In his application statement the applicant made the following claims:
The applicant was born in Chak in 1946 which was then part of India and which is now part of Pakistan.
He claims that he was politically active in the Akali Dal (Badal Group). He claims that he is “one of the most important member[s] of this political party”. He stated that Mr Badal is the president of the party and that Mr Gurcharan Singh Tohra is one of the main leaders and the president of the Sirmani Gurdwar (Skikh Temple) Management Committee of the Gold Temple Amritsar in Punjab India. He claims that Amrinder Singh, the Chief Minister of Punjab, is trying to finish off the party by institution of false cases against the party membership. He claims that the Congress party leaders are trying to kill him and his family. He claims that they made numerous threats against him and that they came so often to his house that he went underground. However, the police and Congress party workers succeeded in hijacking him in January 2003. He claims that he was tortured and that he could not walk for two weeks. They laid false charges against him. After three days torture he was taken to the Hospital Amritsar. His wife then suggested that they leave.
He claimed that in India due to the advanced computer technology his name has been forwarded to the Police Headquarters and that he cannot be safe in any quarter in India.
However, he managed to get his passport in January 2003 and a visa by “giving money” to the authorities. He left India on 20 May 2003. [His Australian visa was granted on 25 February 2003].
The applicant’s son has engaged a solicitor who may send him a letter.
The applicant’s solicitor at no time presented further material to the delegate, and on 11 November 2003 the delegate made a decision refusing the protection visa. In the course of his reasons, which were provided to the applicant and his solicitor, the delegate indicated that he thought that the applicant had not put forward a credible case to support a claim of persecution. He said the claims were vague, lacking in detail and not supported by the country information.
The applicant lodged an appeal to the Refugee Review Tribunal on 15 December 2003 specifying Jack Singh Solicitor & Associates as his authorised recipient for correspondence. In response to the question: “Please tell us why you consider yourself to be a refugee”, all that was said was: “To be advised”.
The applicant was invited to a hearing on 8 March 2004 by a letter sent on 2 February 2004. At no time prior to the hearing was any submission or supporting documents presented to the Tribunal. It appears the male applicant attended without his wife or agent. In the course of the hearing he tendered to the Tribunal what he claimed was a warrant for his arrest issued on 29 January 2004. The Tribunal also received certain envelopes, and describes in its reasons its conclusions about those. The Tribunal sets out in its reasons extensively what it says was the course of the hearing. The transcript of what happened is not in evidence before me and I accept the accuracy of the Tribunal’s description.
Following the hearing, Mr Singh sent a letter to the Tribunal on 24 March 2004 saying, “Now we are informed that our client received the following documents from overseas and instructed us to forward to the member of the Tribunal to consider these documents before the final decision”, and attached a letter purporting to be from a solicitor in the High Court of Punjab and Haryana, a letter purporting to be signed by the Sarpanch (head of the Village) of Saffipur containing some similarities with the contents of the advocate’s letter, and another copy of the warrant of arrest.
The Tribunal reasons show that it, in my view, fully addressed all the material that was put before it by the applicant and his solicitor and gave the applicant the fullest opportunity to present evidence corroborative of his claims.
The Tribunal concluded that the applicant’s evidence lacked consistency and credibility. It said the following (CB 94):
On several issues during the hearing the applicant gave inconsistent accounts and at times clearly exaggerated evidence. On the issues which could be tested, such as the source of the warrant for his arrest and its provenance, his evidence was most implausible. The applicant has also failed to provide much evidence in support of his case. His reasons for this failure to do so were not convincing particularly as he had engaged a solicitor.
The Tribunal rejected the claim that the applicant had been visited by congress party officials who had threatened him. It said this was (CB 94): “… at least an exaggeration and because of the applicant’s general lack of credibility is rejected absolutely”.
The Tribunal rejected the applicant’s claims that he was detained and tortured, and gave cogent reasons for that conclusion.
The Tribunal held that it was not satisfied that any real cases or false cases were lodged against the applicant. It found that the applicant’s evidence was so weak and implausible that the document, that is the purported arrest warrant, must have been concocted for the purposes of the application.
The Tribunal then addressed the additional documents which had arrived after the hearing. It noted some obvious difficulties with them arising from their wording, and concluded (CB 97):
The documents have been concocted. As the Tribunal rejects the authenticity of the documents, the Tribunal rejects the new information from his solicitor that his father was recently arrested.
The Tribunal then addressed the claim by the applicant that he was one of the most important members of the Akali Dal (Badal Group). Based on the applicant’s responses in the course of questioning by the Tribunal, it concluded that it was (CB 97):
… not satisfied that the applicant was a high level member of the Party and finds that he was a low level member of the party, as this would account for his limited familiarity with some of the names of the party.
The Tribunal’s ultimate conclusion was (CB 99):
The Tribunal finds that the applicant was a low member of the Akali Dal (Badal Group) party which is legal in India. The Tribunal finds he was not harassed, arrested or kidnapped and that false charges were not made against him. The Tribunal finds that he has not suffered past persecution and there is no real chance that he will face persecution by reason of his politics or other Convention ground in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention reason.
On 20 May 2004, Jack Singh Solicitor & Associates filed an application in this Court seeking judicial review of the Tribunal’s decision. The application recited a litany of general heads of judicial review without descending to any particularisation.
The first return date for the matter on 26 August 2004 was adjourned because nobody appeared for the applicant. Mr Singh subsequently wrote a letter to the Court saying he had been unable to attend due to illness in his family.
On 9 September 2004 at a directions hearing before the Registrar, the applicant was represented by a solicitor acting as agent for Jack Singh. The applicant was ordered to file an amended application by 11 October 2004 and written submissions 14 days before the hearing which was appointed for today.
On 7 February 2004 a document headed “Statement of Particulars” was filed in the Court. It purports to give particulars of the general heads of judicial review which had been listed in the application. However, those particulars either amount to no more than complaints about the factual conclusions reached by the Tribunal, or are a meaningless jumble of words, or are patently without foundation. The document attaches extracts from cases without any attempt to apply them to the present case. No written submission has been filed.
Mr Singh arrived at today’s hearing late, and has not been able to present any argument identifying a ground of jurisdictional error from the Tribunal decision. Indeed, he quickly gave up his attempt even to criticise the Tribunal’s fact finding.
I am content to adopt counsel for the Minister’s submissions as sufficiently answering the grounds of review that had been put forward in the documents filed by the applicant:
Consideration
8.The Tribunal’s decision turned almost entirely on its findings about the applicant’s credit. Those findings were well‑reasoned and logical. They were based on internal inconsistencies and changes in the applicant’s evidence as well as the manner in which the applicant gave his evidence. There was also, to some extent, some inconsistencies between the applicant’s claims and the information about India considered by the Tribunal (such as the ability of persons subject to arrest warrants to leave the country by air).
9.Findings of credit are matters of fact and fall within the jurisdiction of the Tribunal, not the court. The applicant’s written case (which, to date, lacks any submissions) does not appreciate this. The Tribunal’s rejection of the applicant’s claims cannot, as appears to be suggested in ground one of the statement of particulars, amount to a failure to observe procedures. Further, it is simply wrong to say that the Tribunal did not set out its reasons for the decision: those reasons were simply that it did not believe the applicant and, to the extent that it did, it was not satisfied, on the accepted facts, that the applicant met the criteria for the grant of the visa.
10.The second ground, that the Tribunal did not have jurisdiction to make the decision, is embarrassing. The particulars are expressed broadly and are confined by the words “Insofar as”. The applicant, though represented, has simply not explained where he says the Tribunal went wrong.
11.Both grounds three and four suffer from the same inadequacy as the second ground. The third and fourth particular to the fourth ground allege a particular legal error, but are contradicted by the reference to the Tribunal’s conclusion that the applicant is not a person to whom Australia has protection obligations. That is the very question posed by s.36(2) of the Migration Act. There is no error in that conclusion.
12.Finally, the fifth ground is also left unexplained. As noted above, the Tribunal’s rejection of the applicant’s claims was based upon its assessment of his credit. That assessment was based on logical grounds and the subject of well‑reasoned discussion in the Tribunal’s statement of reasons. The Tribunal did not need to have evidence contradicting the applicant’s story before it was entitled to reject it.
13.There is no error in the Tribunal’s decision.
For the above reasons I dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicants to pay the respondent’s costs in the sum of $4000.
I certify that the preceding twenty‑four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 9 March 2005
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