SZEDA v Minister for Immigration - [2008] FMCA 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 754

MIGRATION – RRT decision – Indian fearing persecution for membership of political group – Tribunal found no real chance of harm – New claims disbelieved as recent invention – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.424A

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30

Applicant:

SZEDA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2914 of 2007

Judgment of:

Smith FM

Hearing date:

30 May 2008

Delivered at:

Sydney

Delivered on:

30 May 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr G Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2914 of 2007

SZEDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in January 2004, and on 2 February 2004 he applied for a protection visa against return to India. His application showed that he was a young man from the state of Tamil Nadu. He said that he feared being arrested and detained under India's security laws, and that he would face abuses in custody, as a result of membership in a political party known as the MDMK Party.
A short typed statement of claim signed by the applicant set out his relevant history:
3.After I completed my studies in “Diploma in Electronics and Communication Engineering”, I had return to my home village (named), where I started getting involved in voluntary works, social works and in politics and became a member of Mr Vai.Gopalsamy’s (MA,BL, Member of Parliament) Party called Marumalarchi Dravida Munetra Kazhagam (MDMK) three years ago. Mr Vai Gopalsamy MP was arrested by Miss Jayalalitha’s Tamil Nadu state government in July 2002 and detained under POTA. Supporters and party members of MDMK organised meetings airing their protest of the unlawful and unwarranted act of arrest and detention of Mr Vai Gopalsamy MP by the Jayalalitha’s state government. I took very active part in those protest rallies and meetings. Many of his supporters were being arrested and detained without bail; I feared that I may be also arrested and went into hiding.
4.Later I realised that Mr Vai Gopalsamy’s (MP) party members and supporters were being implicated linking with the banned LTTE and detained under POTA. In this serious situation I thought the more days I remain in India I may run the risk of getting arrested, detained and ill treat and for my safety of my life, I left India and arrived Australia seeking protection.
His statement also referred to his attending a Christian orphanage and being attracted by Christian teaching, without making it clear whether he claimed to be at risk of persecution on the ground of actual or perceived Christianity. This aspect of his claims was explored with him at hearings which he attended before the Refugee Review Tribunal on 18 June 2004 and on 24 August 2006. At the second of these hearings, he indicated to the Tribunal that he had been born a Hindu and became a Christian, “but he has no problems about practising his Christian religion. His only problem is in connection with his allegiance to the MDMK”.
The Tribunal was subsequently reconstituted, and the applicant attended a third hearing held on 2 July 2007 by the member who constituted the Tribunal when making the decision currently before me. That member asked the applicant some questions about his Christian religion, but the applicant does not appear to have raised any concerns that he was at risk as a result of his conversion to Christianity. It was, in my opinion, open to the Tribunal to have considered that any claim based on religion had been not raised, or had been abandoned, by the applicant.
In relation to his claim based on political opinions and activities, the delegate assumed the truth of the history given by the applicant. However, after addressing information concerning the political situation in India, the delegate said that he could not find that the applicant would face harm of a severity such as to constitute persecution should he return to India in the foreseeable future.
The delegate refused the visa application on 22 March 2004. As I have indicated, the applicant appealed. The first two decisions arrived at by the Tribunal were set aside by consent orders in the Federal Court and this Court. Both of those orders seem to have arisen out of what were thought, at the time, to be failures to comply with s.424A of the Migration Act.
At the hearing held by the reconstituted Tribunal on 2 July 2007, the applicant was asked about his typed statement of claim and, according to the Tribunal, he told the Tribunal that “the statement was true and correct and it was a statement of his claims except for the omission” of a claim which he made to previous Tribunals that he had also been arrested on one occasion by police.
He gave a detailed description to the Tribunal of the circumstances of his claimed arrest, which he said occurred on 14 July 2002. The applicant said that he had participated with members of the MDMK party and members of the public in a protest against the arrest of the leader of the MDMK. He told the Tribunal that police had arrested a large number of people, including himself, and that he had been held in detention for five to six hours at the police station, and questioned as to why he was protesting. He told the Tribunal that he had been arrested “for failure to disperse, after receiving direction from police to do so, and that they released members of MDMK but they didn't release divisional leaders, and being a member he was released”.
Following the hearing the Tribunal sent to the applicant, who was represented by solicitors, a letter inviting comment upon a number of matters. These included some country information about the arrest of MDMK leaders and cadre members in 2002 and their subsequent release. It was put to the applicant that, on his account of events, he did not have an adverse political profile in India and was not of interest to the authorities in Tamil Nadu.
The applicant's response to that letter was a statutory declaration in which, for the first time, he claimed to have been arrested and to fear persecution because of a link with a proscribed organisation known as the LTTE. He claimed “It is true I am not only a member of MDMK Party and I have also associated with LTTE and TNLA groups”. He claimed that he was an “open front member” of these organisations and “I became known in public and was an easy target for intelligence agencies”. He claimed that he was arrested in July 2002 and interrogated about his association with those organisations, and that subsequently he “did not stay in one place more than one month and I was kept changing different places in order to avoid from the "Q" branch state police and "IB" central intelligence police”. The statutory declaration said:
Being a member of pro-LTTE organisation of MDMK and closer association with LTTE and TNLA, whenever I was picked up by the patrolling police of other parts of the state/country while trying to escape the preventive arrests done in my locality, the police used to whisk me away to the police station. Each time I was taken into custody on suspicious grounds by the police patrolling the railway stations on nights, I was held in the police custody until I produced some evidence in proof of my identity and the reason for being there in that place.
His statement also said:
So in such a dreadful situation with a past record of cases pending before the court on my cases it is impossible for me to settle down anywhere in India which is very dangerous for my life.
It is the humble contention that I was afraid for the safety of my life because of my past political connections with the pro-LTTE and TNLA, which is a banned organisation in India termed under the category of unlawful activities of the state.
After the Tribunal received the applicant's statutory declaration, it received two telephone calls from the applicant's solicitor. In the second of these, the solicitor advised that the applicant's statement: “will be the final submission and he will not be forwarding any further submissions”.
The Tribunal handed down its decision on 28 August 2007. It affirmed the delegate's decision. In its statement of reasons, after setting out the course of the hearing held by it and its invitation for comments and the response, the Tribunal explained why it found that the applicant did not have a well-founded fear of persecution for a Convention based reason.
The Tribunal made a positive finding:
The Tribunal accepts that the applicant had an affiliation with the MDMK and possibly became a member of the organisation. The Tribunal accepts the applicant's evidence that he was involved in promoting the MDMK at local elections, by canvassing door to door, handing out pamphlets and literature and putting up posters.
The Tribunal noted that the applicant had at his hearings before the Tribunal raised a claim to have been arrested in July 2002, which had not been in his original claims. However, it said that it would “give the applicant the benefit of the doubt that he was the subject of an arrest and a detention of five-six hours in relation to being involved in protests pertaining to the arrest of Vaiko Gopalsamy.” The Tribunal accepted the applicant's evidence that he was released because only divisional leaders were of interest to the authorities.
It referred to country information which had been put to the applicant in the s.424A letter of 25 July 2007, and it concluded:
No evidence has been provided to the Tribunal which indicates that from the time of the applicant’s arrest in July 2002, up until the time of his departure on 20 January 2004 that he was subject to any further arrest, detention, questioning, or mistreatment by the authorities or rival political parties in India.
The evidence before the Tribunal, including country information cited in the 424A letter of 25 July 2007, indicates that MDMK volunteers, activists, secretaries and leaders across Tamil Nadu were subject to arrest in July 2002. However, the country information indicates that most of the arrested MDMK leaders and cadre were released in July 2002. This information has been put to the applicant after the hearing and it confirms the evidence provided by the applicant that he was only detained for a short period of time and released because he was not a divisional leader and therefore not of interest to the authorities. This fact indicates that the applicant does not have an adverse political profile, or that he is of interest to the authorities in Tamil Nadu, or that he would be the subject of persecution upon return to India.
In the context of the Tribunal's surrounding reasoning it is clear, in my opinion, that the Tribunal's reference to “no evidence” concerning further arrests or detention should be read as meaning no evidence acceptable to the Tribunal that established such events (cf. A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1] and [18-23], Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18], and Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479-80). This is because the Tribunal immediately after the above conclusion, addressed the new claims about further detentions made by the applicant in his statutory declaration sent in response to the 424A letter.
The Tribunal noted that the significant new claims had never been mentioned in the course of the previous proceedings in the Tribunal over several years, and it found:
These new claims have been added to embellish the applicant's overall claims for protection, and are a fabrication as there has been no mention of these claims prior to the statutory declaration of 6 August 2007.
It said that it "does not give them any weight". It went further, and said that as a result of this, it could not be satisfied that the applicant was a witness of truth generally. On the evidence which it had accepted, it found that the applicant would not experience serious harm as defined in the Migration Act upon return to India. It could not accept that he would face a real chance of persecution if he returned to India.
The applicant now asks the Court to set aside the decision of the Tribunal, and to send the matter back to the Tribunal. I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies as a refugee, nor whether he should be given permission to stay in Australia.
The applicant's original application contained no details of any arguments to establish jurisdictional error. He was referred to a free legal adviser by the Court who prepared an amended application which is relied on by the applicant. Unfortunately this document has some significant defects. It does not properly formulate grounds of jurisdictional error. It contains some submissions which are plainly inconsistent with the legislation and established authority, and it makes some contentions of fact which appear unsupported by any evidence. However, I shall deal with what I understand to be the points which are sought to be raised by it.
The first ground contends that there was a failure by the Tribunal to comply with obligations under s.424A of the Migration Act. The argumentative particulars relate this to the Tribunal's reliance upon general country information concerning the situation in India of the members and leaders of the MDMK. The Tribunal's s.424A letter is criticised because it did not provide to the applicant the whole of the advice from the country research section of the Tribunal. It is argued that the information was not sourced or referenced, and that the Tribunal relied selectively on parts of the evidence without disclosing the whole of the research. The Tribunal is also criticised for providing a summary of the effect of country information without quoting the actual information.
All of these points ignore the clear effect of s.424A(3)(a) as found by authorities in the Federal Court, including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572. That provision excludes any obligations to invite written comments arising under s.424A(1) in relation to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. As routinely applied in this Court and the Federal Court since NAMW, the exclusion covers information of the type put to the applicant at the hearing and in its letter, which was subsequently relied upon by the Tribunal. The Tribunal was under no obligations when it put this information to the applicant in writing, and any alleged defects in how it framed its letter cannot give rise to a finding of failure to comply with s.424A(1).
Moreover, I am not at all persuaded that either the Tribunal’s letter, or the discussion of the same material with the applicant at the hearing, involved any unfairness to the applicant. It appears to me that the applicant's attention was drawn to the gist of the Tribunal’s researches into the relevant situation in India. For both of these reasons, I do not accept any of the points made under ground 1 of the amended application.
Ground 2 of the amended application states: “The applicant submits the Tribunal's decision is affected by jurisdictional error more generally”. There are then argumentative paragraphs, which are headed: "particulars include". The first paragraph asserts that the applicant told the Tribunal, in the course of the hearing, that he had been mistreated while detained, and that he had not indicated to the Tribunal that he was of no continuing adverse interest to the authorities after his release. These assertions are unsupported by any evidence presented to the Court, in particular by way of transcript. They are inconsistent with the Tribunal's description of the hearing, and I do not accept them.
I do not accept that any jurisdictional error occurred in relation to the Tribunal's identification of the evidence given by the applicant to it at its hearing, and its reliance upon what he said to it. The contention that the Tribunal failed to take into account the fact that the applicant was in hiding in another part of India in the period after his release from arrest in July 2002, ignores the discussion by the Tribunal of these very claims as made in his statutory declaration. Plainly the Tribunal did address those claims, and rejected them as unbelievable on the ground of recent invention.
The third ground is: “The applicant submits that the Tribunal's decision is affected by jurisdictional for other reasons”. The paragraphs below this contention appear to argue with the merits of the Tribunal's findings adverse to the applicant's credibility. The contention is made:
While that conclusion may have been open to it, the Tribunal was under an obligation to make all its findings on credibility transparent and explicit.
However, I cannot understand this contention, nor how it is claimed to show jurisdictional error. In my opinion, the Tribunal's reasons made clear findings on credibility in relation to the applicant’s claims made in the statutory declaration. They were all rejected.
The fourth ground in the amended application criticises the Tribunal's finding, which I quoted above, which accepted that the applicant “had an affiliation with the MDMK and possibly became a member of the organisation”. It is contended that the finding of “possible membership” is:
equivocal and uncertain. ... The Tribunal was under an obligation to make a positive finding of fact on the applicant's claimed membership of this political party, given that matter was central to his claims of persecution.
No authority is cited by or on behalf of the applicant in relation to these grounds. Although the Tribunal does have a duty to address the claims before it, it does not have a duty to make positive findings if it is unable to do so on the evidence presented by an applicant. In the present case, the Tribunal made clear the extent to which it accepted the history presented by the applicant. Its reasoning accepted the possible membership of the political party to the extent found by it, and it assessed the applicant's risk of persecution if he returned to India on an assumption that this was true. In my opinion, no legal defect is revealed by the Tribunal's reasoning, and certainly no jurisdictional failure on its part.
I have considered all the points made in the amended application, and can find no jurisdictional error affecting this Tribunal's decision.
I note that the representative of the Minister addressed me on whether the Tribunal was obliged to put back to the applicant the possibility that it might not accept the truth of the claims made in the statutory declaration sent to the Tribunal in response to its s.424A letter. In my opinion, no such obligations could arise under s.424A(1) itself, since the basis on which those claims was rejected did not rely on any "information", certainly no information which was not "given" to the Tribunal by the applicant itself (cf. 424A(3)(b)). Rather, the Tribunal arrived at conclusions about the new claims based on their inconsistency with how the applicant had previously presented his claims.

In this situation, the Tribunal was under no obligation under s.424A(1) to engage in another round of correspondence with the applicant. As the High Court said in SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 609:
[19] Fourthly, and regardless of the matters discussed above, the appellants’ argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing,15 no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants’ case, it seems odd that its effect would be to preclude the tribunal from dealing with such matters during the hearing itself.
[20] Moreover, supposing the appellants had responded to a written notice provided by the tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by–or remaining despite – the original response to the invitation to comment? If so, was the tribunal obliged to issue new notices for so long as the appellants’ testimony lacked credibility? If the appellants’ desired construction of s 424A leads to such a circulus inextricabilis, it is a likely indication that such a construction is in error.
In my opinion, the issue of whether the new claims made in the statutory declaration would be believed by the Tribunal must have been patent to the applicant and his solicitor at the time when they were submitted. The solicitor chose not to make any submission addressing that issue. I do not consider that any obligations to warn that the new claims might be disbelieved arose under principles applied in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (cf. SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [21]).
The applicant today made brief submissions in which he disputed the conclusions arrived at by the Tribunal. However, the merits of those conclusions is not a matter which I can address, once I am satisfied that its reasoning was open to it on the material before it and discloses no jurisdictional error.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 16 June 2008