SZDTU v Minister for Immigration

[2005] FMCA 1906

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTU v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1906

MIGRATION – RRT decision – Indian fearing persecution for political opinion – disbelieved by Tribunal – no error found – no failure to serve written invitation for comments.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 424A, 424A(1), 424A(3)(b), 474(1), 483A, Pt.8

SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158

Applicant: SZDTU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1735 of 2004

Judgment of: Smith FM

Hearing date: 30 November 2005

Delivered at: Sydney

Delivered on: 30 November 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $6,500 in addition to the costs awarded on 5 September 2005. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1735 of 2004

SZDTU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of the Refugee Review Tribunal (“the Tribunal”) dated 28 April 2004 and handed down on 20 May 2004.  The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant. 

2. The Court’s jurisdiction under s.483A is the same as the Federal Court’s under s.39B of the Judiciary Act 1903 (Cth) but both are subject to limitations under Part 8 of the Migration Act. These limitations have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power to decide whether the applicant’s claims should be believed nor whether he qualifies for a protection visa or any other permission to stay in Australia.

3. The present applicant arrived in Australia on a one month temporary business visa in August 2003.  On 2 September 2003 he applied for a protection visa assisted by migration agent.  His claims for protection in Australia from being returned to his country of nationality, India, were contained in a handwritten statement covering ten pages.  Without reflecting on the truth of his account, this gave a colourful history of years of difficulties which started shortly after the applicant left high school. 

4. He said that while at high school he had become a member of the communist party of India, youth wing, and then continued his party activities after becoming a booking clerk in a transport service in a town in Tamil Nadu.  In that role he became involved in mass strikes by transport workers and disputes with local figures in other political parties and black marketers.  He was beaten and tortured by the police and false cases were filed against him.  He said: “we got three months imprisonment” at a court in January 1994. 

5. The applicant and his family moved house in their town, and then moved to a different state, Kerala, where he continued party activities in the transport area where he also obtained employment.  He was involved in strikes and came into conflict with a union leader who was corrupt.  This led to him being arrested in 1996 on a charge that he killed a friend of the union leader and burnt his two lorries.  He was kept in custody, beaten and tortured to confess the murder, and then had to attend his case at the court and could not get a regular job. 

6. The applicant said that in September 1996 he went to a third state and tried to live there, but could not manage, and returned to Kerala where he again encountered hostility from the union leader and was attacked in his house by a mob.  He then moved back to his home state of Tamil Nadu in the year 2000, and found employment in another lorry business where he worked for two years.  However, he was forced to assist his employer in smuggling and:  

   They told me either I work with them or die since I know the secret (smuggling).  From that moment I was always escorted by two armed men of [undecipherable].  They were strictly instructed to kill me the moment I attempt an escape.  I lived as a prisoner in their hands.  They accompanied me to court and my home also.  They beat me several times when I tried to speak to some peoples. 

7. The applicant finally claimed that in March 2003 he escaped from them, went into hiding, and then travelled on his own passport to come to Australia in August 2003.  He said: “if I go back to India my enemies will kill me.  I cannot live life long in hiding”. 

8. A delegate refused the visa application on 11 November 2003, noting that the applicant had provided no details of some aspects of his case.  The applicant appealed to the Refugee Review Tribunal assisted by his agent but did not provide any further supportive material.  He attended a hearing conducted by the Tribunal on 24 February 2004.  A transcript is not in evidence, but the Tribunal gives a description of the hearing which I have no reason to doubt. 

9. In his evidence to the Tribunal, the applicant elaborated some of his history and responded to several aspects which the Tribunal put to him.  The Tribunal referred to the applicant’s Indian passport as showing a visit to Singapore and Malaysia in June 2003 before he came to Australia in August 2003.  The Tribunal said it questioned him about his claims that his reason for those visits were that he was trying to escape.  The Tribunal also said it “put to him several contradictions in his protection visa application”, these were what it perceived to be differences between statements in the Form C when compared with his “statement of claims”.  The Tribunal also said that it questioned him about country information which suggested that Indian departure controls included investigation of an individual’s status before the issuing of a passport and checks at airports in relation to people for whom arrest warrants are in force. 

10. Under the heading “Findings and Reasons”, the Tribunal commenced by saying that it had “considerable difficulty with the applicant’s credibility”.  It summarised his claims in a manner which I think accurately focussed them:  

    He claims he was a member of the Communist Party and a labour activist.  He claims he fears that if he returns, the police or members of other political parties will harm or kill him.  Specifically, he claims he fears death at the hands of a DMK party member who was his former employer in Kerala, called K., because he discovered K. was smuggling drugs.  He claims K. had two armed thugs escort him everywhere for about a year, but he finally managed to escape them. 

    He also claims that a corrupt ADMK leader, T., had him arrested on a false charge for which he was sentenced to three months imprisonment, that he was later beaten by rowdies at T.’s instigation and that he was subsequently imprisoned a second time, for 15 days, also at T.’s instigation.  He also claims that T. was in league with K. in the smuggling enterprise.  However, I note that he makes no claim of fearing further harm from T. if he returns. 

    He claims, in addition, that he was falsely charged with murder at the instigation of a communist union leader in Kerala, KM, and that the case is still before the court. 

11. The Tribunal then said: “however, his claims contained several anomalies, discrepancies and implausibilities”.  It referred to statements in his Form C, giving a single address in Tamil Nadu for the ten years before his departure and only one job as a clerk in the Kerala Transport Corporation.  It said that both of these statements were contradicted by references in his statement of claims to his living in three different states and having various jobs.  The Tribunal noted that the applicant had explained this on the basis that a friend wrote his application and had omitted parts of his account.  The Tribunal drew no particular conclusion in relation to what it referred to as “the two anomalies”. 

12. The Tribunal addressed the applicant’s claims concerning events in Kerala where the union leader “engineered a false charge of murder against him for which he was arrested, charged, detained and beaten”, and which he had claimed had given rise to a series of court attendances.  The Tribunal found some implausibilities in relation to this account, and in particular his ability to obtain a passport and depart India without difficulty twice while the murder case was outstanding.  The Tribunal said: 

    I consider that a court order that a person on trial for murder not be allowed to leave India would have the same prohibitive force as an arrest warrant.  Furthermore, the information indicates that checks at airport are exceedingly thorough, and that manual and computerised lists are up to date. 

    The applicant sought to explain the ease with which he obtained a passport and exited India in his oral evidence by claiming that he was living in Kerala but the passport was applied for in Chennai.  He claimed that it’s the local police who investigate and that the data is not cross‑linked throughout India; however, this is contradicted by the country information, which I prefer over his unsubstantiated information.  

    I consider that he was able to obtain his passport without problems and exit India without difficulty because he was not of adverse interest to the police anywhere in India and there was no court order against him leaving the country.  I do not accept that he was charged with murder, as claimed.  

    On the basis of this finding and also of my several other adverse credibility findings, below, I cannot be satisfied that he was ever in conflict with or of adverse interest to a powerful labour leader, KM. 

13. The “other adverse credibility findings, below,” do not include findings referring to the two “anomalies” in his original visa application documents.  They relate to two findings about the claims made to the Tribunal. 

14. The first was a finding about his claims about his last employment in Tamil Nadu, in which he encountered drug smuggling.  The Tribunal concluded, for various reasons relating to the intrinsic credibility of his account: 

    even if I accept that he worked for someone called K., I am unable to accept his claims about discovering that K. (or, for that matter, T.) was a drug smuggler or that K. continues to have an adverse interest in him. 

15. The Tribunal’s second “other credibility finding” concerned the reasons the applicant gave it for his visits to Malaysia and Singapore.  It concluded: 

    I do not accept that he visited either country for the purpose of fleeing persecution in India. 

16. The Tribunal’s general conclusion about the whole of the applicant’s claims was: 

    On the basis of the various anomalies, discrepancies and implausibilities in the evidence before me, I am unable to be satisfied that the applicant was ever a member of the communist party, or that he was a communist labour activist, or that he ran foul of an ADMK leader called T. and was, at this man’s behest, twice imprisoned and beaten by rowdies, or that he was charged with murder at the instigation of communist union leader called KM, or that he later discovered that his employer K., a DMK leader, was smuggling drugs, or that he was put under permanent guard at K.’s order by two armed thugs for a year.  I do not accept that he is of adverse interest to the police or to leading members of any political party, or to KM. 

    I find that the applicant does not have a well‑founded fear of persecution in India for any Convention reason. 

    CONCLUSION 

    Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.  

17. The applicant has not been assisted by legal representation in his application to this Court which he filed on 7 June 2004.  His original application indicated a disagreement with the decision of the Tribunal, but it did not identify any jurisdictional error which would be argued. 

18. An amended application filed on 24 November 2004 contained arguments which the applicant also developed orally before me.  It led to a conclusion that “the Tribunal has failed to analyse the matter”, and also a suggestion that it had a “pre determined state of mind”.  However, the latter assertion was not developed in argument and I do not consider that the allegation has any substance. 

19. The applicant’s arguments criticising the Tribunal’s analysis of the applicant’s claims were developed carefully and rationally by the applicant, but he frankly conceded that he was not familiar with the legal tests which the Court needed to apply before deciding whether his criticisms showed jurisdictional error. 

20. Essentially, his arguments repeated explanations, which it is clear he had also given to the Tribunal, seeking to explain three matters which had been put to him by the Tribunal.  These were the “anomalies” in his visa application documents, his ability to obtain a passport and travel while facing murder charges, and the reasons for his travel to Malaysia and Singapore. 

21. I have listened carefully to his submissions as to why the Tribunal should not have drawn adverse conclusions on these matters, but I do not think that they identified any problem with the Tribunal’s reasoning which could be characterised as jurisdictional error.  I considered that it was open to the Tribunal to have made the adverse findings which it made, and to have rejected his claims on the basis of his adverse credibility findings which I have identified and its consequential failure to be satisfied as to the truth of the applicant’s claims. 

22. The Minister, through written submissions prepared by two counsel who have appeared in this matter for the Minister, has raised for the Court’s consideration the familiar issue of whether the Tribunal failed to comply with a duty under s.424A(1) to invite the applicant to give written comments on information which the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision that is under review”. 

23. Two elements in the Tribunal’s reasoning were canvassed with me by counsel for the Minister. The first was the Tribunal’s use of information concerning the applicant’s travel to Malaysia and Singapore. As I have explained above, the Tribunal’s refusal to accept that the applicant had travelled for the reason of fleeing persecution was one of the “several other credibility findings” which it gave for its general dissatisfaction with all the applicant’s claims. In my opinion, it was a sufficiently significant “part” of the Tribunal’s reasons for affirming the delegate’s decision to be characterised as such within the authorities concerning s.424A(1) (see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 (“VUAX”) at [51]‑[54]).

24. However, I am not persuaded that the Tribunal was obliged to put to the applicant by way of a written invitation any “information” used by it as a reason for making that adverse finding.  First, I am not persuaded that information gleaned from the applicant’s passport was not “information … that the applicant gave for the purpose of the application” within the exclusion in s.424A(3)(b), even accepting as I must that I am bound to construe the reference to “the application” as being the review application only. The applicant was told when invited to the hearing: “if you have a passport you should bring it to the hearing”.  There is no evidence before me that he ignored that direction, and in the absence of a transcript the evidence does not identify whether it was the original passport or copies of its pages found in the DIMIA file which were discussed with the applicant at the hearing.  I consider that the former is more likely.  Any information taken from the passport was, therefore, “given” to the Tribunal so as to come within the exclusion, if only by way of “re‑publication” (c.f. SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 at [6])

25. Moreover, the critical information concerning the applicant’s travel which was the subject of the adverse credibility finding, was not the facts of the travel shown in the passport, but the evidence given by the applicant at the hearing as to his reasons for it. That was information given to the Tribunal for the purposes of its review, and the reason for the adverse finding was the Tribunal’s assessment of its inherent credibility. I therefore do not think the first aspect of the Tribunal’s reasoning which was raised by the Minister’s counsel concerning s.424A gives rise to concern.

26. The second aspect related to the Tribunal’s reference at the start of its “Findings and Reasons” to the “two anomalies” in the visa application documentation.  I think the Tribunal’s concluding paragraph extracted above at [16] which refers to “the various anomalies”, has to be read as including a reference back to this discussion.  However, on my reading of its actual reasoning process, performing the independent analysis which the authorities suggest that I should engage in, I am not persuaded that the “two anomalies” played a part in its essential reasoning.  In the language of the leading authority in this area:  

    It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)). (See VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [41], and as applies in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [51]‑[54]).

27. In this respect, it is significant that the Tribunal referred to the two anomalies, and to the applicant’s not unreasonable explanation, without feeling it necessary to arrive at a conclusion about the matter. Moreover, its subsequent credibility findings, which I have referred to above, appear as the substantial reason for its rejection of the applicant’s history. I do not consider that the manner in which he presented his original visa application played any part in its essential reasoning. Essentially, the Tribunal has affirmed the delegate’s decision because it found his history inherently unbelievable and inconsistent with country information concerning passport and exit procedures in India. I therefore do not consider that jurisdictional error affected the Tribunal’s decision by reason of its omission to serve any s.424A(1) invitation.

28. Assessing the whole of the material before me and taking into account the applicant’s submissions, I have not been persuaded that any jurisdictional error affected the Tribunal’s decision. It is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss his application.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  22 December 2005