SZEEO v Minister for Immigration

[2005] FMCA 1177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOO v MINISTER FOR IMMIGRATION [2005] FMCA 1177

MIGRATION – Refugee – persecution for political opinion – adverse finding on credibility – Wednesbury unreasonableness – procedural unfairness and s.424A – illogical and irrational reasoning on the part of the Tribunal – no reviewable error.

Migration Act 1958, ss.424A, 430(1)(c), 424A(1)(d)

Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
Minister for Immigration and Multicultural Affairs vYusuf [2001] 206 CLR 323
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286

Applicant: SZEOO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3091 of 2004

Judgment of: Nicholls FM

Hearing date: 19 May 2005

Date of Last Submission: 16 May 2005

Delivered at: Sydney

Delivered on: 26 August 2005

REPRESENTATION

Counsel for the Applicant: Mr. C. Jayawardena

Solicitors for the Applicant: Jayawardena Solicitors

Counsel for the Respondent: Mr. J. Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $2750, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3091 of 2004

SZEOO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 15 October 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 August 2004 and handed down on
   21 September 2004 to affirm the decision of the delegate of the respondent Minister made on 30 March 2004 to refuse a protection visa to the applicant.

2. The applicant is a national of India who arrived in Australia on
   24 February 2004 and made an application for a protection visa on
   23 March 2004. His claims before the Tribunal were included in his protection visa application to the respondent's Department (Court Book 1 to CB 43) and in an attached declaration at CB 44 to CB 47, and at a hearing before the Tribunal on 29 July 2004. The Tribunal's account of what occurred at the hearing is at CB 83.6 to CB 86.1.

3. In his application to the Tribunal the applicant stated, as reproduced at CB 66, that he was not happy with the delegate's decision and would enclose a separate statement later. The applicant provided no further statement. In the written material before the Tribunal the applicant's claims were that he had left India because police had tried to kill him and that he feared persecution at the hands of the authorities and in particular his neighbour who had taken offence when the applicant had criticised India's unstable politics and corrupt politicians. He claimed that he had always had trouble with the Akali Dal Party, with which his neighbour was associated, and that the quarrel with the neighbour led to his moving to Malaysia in 1975. When he returned to India in 2001, his neighbour falsely alleged that he had been involved with “Kalisthan” terrorists (Sikh extremists) and the “Blue Star” operation (the storming of the Sikh “Golden Temple” to expel Sikh extremists). As a result he claimed to have been arrested in June 2003, beaten by police, and on a subsequent occasion when he had been arrested, his neighbour had urged police to jail him but his father-in-law had paid a huge bribe for his release. He further claimed that he had been arrested again in November 2003 and had been mistreated by police including being “thrashed”. He was released after more bribes were paid and he left his local area and then arranged his departure for Australia.

4. On 4 June 2004 the Tribunal wrote to the applicant (CB 70 to CB 71) and advised that, on material before it, it was unable to make a decision in his favour and invited the applicant to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims. The applicant subsequently attended a hearing before the Tribunal on 29 July 2004. In its decision record at CB 83.4 the Tribunal noted that the information provided by the applicant was broad, vague, lacking in relevant details and contained inconsistencies and that the delegate had also found the claims to be implausible and lacking credibility.
   It referred to independent country information regarding the timing of operation “Blue Star” in 1984 and the political environment in India at the times relevant to the applicant's claims. At the hearing before the Tribunal, it specifically questioned the applicant as to why a Hindu who had lived in Malaysia and Brunei for many years before and during the Sikh insurgency would be suspected of being a Sikh terrorist. At the hearing before the Tribunal, the applicant put to the Tribunal and assured the Tribunal that the information that he had presented was true and was a complete statement of his claims for a protection visa. The Tribunal questioned the applicant about key aspects of these claims and found that it was satisfied that the applicant was not a witness of credit and that his key claims had been fabricated. It gave reasons for this and found variously:

   1)His oral and written evidence was inconsistent about important matters (CB 87.2).

   2)His claims that he was of interest to the police for reasons of his association with the Sikh insurgency to be implausible and unsupported by independent country information (CB 87.3).

   3)That he could not explain why his problems with the police had not been mentioned earlier and why he had earlier in the hearing before it said he had “no worries” other than his neighbour (CB 87.8).

   4)While the Tribunal accepted that the applicant had a longstanding personal problem with his neighbour, it did not accept that the neighbour targeted the applicant for a Convention related reason (CB 87.9).

   5)It did not accept that the applicant had problems with the Akali Dal Party because there was nothing credible in the applicant’s evidence to support his assertions that he had problems in this regard (CB 88.1).

   6)The Tribunal was not satisfied that the problems with the neighbour were for a Convention reason because of the applicant's own evidence (CB 88.2).

   7)The Tribunal rejected the applicant's claims to have been harmed by police because of links to Kalisthan extremists and it gave reasons for this (CB 88.4). In particular, it found the applicant’s answers on these matters vague and confused and totally unconvincing. It also found his claims implausible given that he had been overseas at the relevant times.

5. The Tribunal rejected much of the applicant's claims on credibility grounds based to a large extent on what the applicant said or was unable to explain at the hearing before it. It also rejected, based partly on independent country information, that there was any political motivation for the harm claimed and any fear of harm from police or the authorities. To the extent that the applicant may fear harm from his neighbour, the Tribunal found this was not for a Convention reason, and in any event he could relocate elsewhere in India to avoid his neighbour.

6. In his application to the Court the applicant asserted jurisdictional error on the part of the Tribunal. By way of amended application filed on
   11 February 2005, by a solicitor acting on the applicant's behalf, the applicant asserts the following grounds:

   1)Jurisdictional error on the part of the Tribunal by the Tribunal drawing conclusions where there was no evidence to support such conclusions.

   2)Wednesbury unreasonableness on the part of the Tribunal.

   3)Procedural unfairness and the failure to comply with s.424A of the Act.

   4)Jurisdictional error on the part of the Tribunal in breaching s.424A, s.430(1)(c) and s.424A(1)(d) of the Act in relation to the conclusions that the Tribunal reached.

   5)That the Tribunal was “procedurally unreasonable”.

   The applicant's solicitor also provided an outline of written submissions which appear to raise additional grounds including the apprehension of bias in relation to the Tribunal. At the hearing before me the applicant was represented by solicitor, Mr. C. Jayawardena who confirmed that the applicant was seeking to rely only on the grounds as set out in the amended application. Mr. J. Bird appeared for the respondent Minister.

7. The first ground of complaint made by the applicant is that the Tribunal made jurisdictional error by a drawing conclusions where there was no evidence to support the conclusion and thereby questioned the applicant's credibility. Mr. Jayawardena particularised this complaint by reference to the Tribunal's decision record at CB 87.2:

   “Having carefully considered the Applicant's oral and written evidence about his key claims, the Tribunal is not satisfied that the Applicant is not a witness of credit and that his key claims have been fabricated."

   This is not a precise reproduction of what the Tribunal's record actually shows:

   “However, having carefully considered that the Applicant's oral and written evidence about his key claims, the Tribunal is satisfied that the Applicant is not a witness of credit and that his key claims have been fabricated.”

   In any event Mr. Jayawardena for the applicant submitted that this a “serious misdirection” and that the applicant had clearly said in his written statement at CB 44 to CB 47 that he was suspected of being a Kalisthan separatist, that he had been beaten by the Indian police and detained by them. Mr. Jayawardena’s submission, in essence, appears to be that having the applicant's statements before it meant that the Tribunal's conclusion that the claims were fabricated was unfounded and therefore “judicially wrong”. Mr. Jayawardena submitted that the applicant had made a clear cut statement as to his fears of harm, that the Tribunal “repeats” the claims at CB 82 and then says that the claims have been fabricated without any direct evidence to show this fabrication.

8. It is well settled, as the Tribunal reminded itself in its decision record at CB 86.8, that a Tribunal is not required to accept uncritically any or all of the applicant's claims. The applicant's argument now appears to be that having made the claims, that the Tribunal had no basis on which to disbelieve the applicant. On what was submitted by
   Mr. Jayawardena originally, I could not see that the applicant had put forward anything to challenge the way the Tribunal went about its task in this regard. The Tribunal clearly made findings on the applicant's credibility. These were open to it on the material before it. Much of this material was what the applicant himself put to the Tribunal, and the manner in which he put it, for example:

   1)The applicant at first claimed to have suffered at the hands of police and from his neighbour. At the hearing before the Tribunal, which is not challenged by the applicant, he made no mention of the problems with police and after recounting his problems with his neighbour said that he had no other problems in India (CB 85.2). It was only after prompting that he mentioned what had been the important claim in his protection visa application.

   2)Inconsistencies between his different accounts as to how many times he had been arrested by police (CB 88.4).

   3)Inconsistencies between written and oral claims relating to when he went into hiding between mid November 2003 and mid February 2004 (CB 88.8).

9. There was nothing in what Mr. Jayawardena submitted to make out the claim that the Tribunal was in error in the way that it came to its findings on credibility. I sought to clarify with Mr. Jayawardena whether he sought to make anything of the Tribunal's statement in its decision record at CB 85.2:

   “As he hadn't mentioned the serious claims in his written evidence the Tribunal asked if he ever had any trouble from the Police.”

   Mr. Jayawardena responded that the applicant in fact had mentioned his problems with the police in his written statement attached to the application for the protection visa and that he made serious claims in his written statement by recounting the occasions on which he had been arrested by the police and beaten hard by the police and detained. It is clear that the applicant did raise the concerns with the police in his written evidence. Mr. Bird for the respondent submitted on this point that the Tribunal's comment needs to be seen in the context in which it appears. The statement comes in the middle of the Tribunal’s account of what occurred at the hearing before it and follows a report of the discussion with the applicant in relation to his claims concerning his neighbour, Akali Dal and whether the applicant could live elsewhere in Punjab or India. It is in this context that the Tribunal then says the applicant had not mentioned the serious claims that he had put in his written evidence, meaning clearly in the context that he had not mentioned these serious claims that had been written in his evidence during the course of the hearing that it had conducted with the applicant up to that point. It was for this reason that the Tribunal then says, that it went on to ask specifically whether he had had any trouble from the police, this being a serious claim that he had put forward in his written evidence. What then is left of Mr. Jayawardena’s submission in relation to this ground is that the applicant made claims, and the Tribunal did not accept that the veracity of these claims.
   The mere fact that an applicant puts certain claims in writing does not, of itself, show jurisdictional error on the part of the Tribunal in circumstances where the Tribunal looked at the claims, compares the claims with other statements made by the applicant and gave the applicant the opportunity to comment and drew an adverse inference. In reaching a position adverse to the applicant the Tribunal made findings of fact including findings on credibility which were open on the material before (Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). In addition, the Tribunal gave reasons for its findings.

10. The applicant’s second complaint is that the Tribunal was Wednesbury unreasonable in holding against the applicant on the basis that the applicant was not able to provide certain information. This was particularised by Mr. Jayawardena’s reference to CB 87.1 where he says the Tribunal said:

    “The Tribunal finds that the Applicant’s oral & written evidence is inconsistent about important matters, and his claims to be of no interest to Police for reasons associated with Sikh insurgency (mainly in the 1980s) is implausible and not supported by independent country information.”

    The actual statement by the Tribunal at CB 87.1 is:

    “This is because the Tribunal finds that the Applicant’s oral and written evidence is inconsistent about important matters, and his claim to be of interest to Police for reasons associated with the Sikh  insurgency (mainly in the 1980s) is implausible and not supported by independent country information.”

    The applicant now complains that he never said that he supported the Sikh insurgency but that he was suspected by the Indian police of being a Sikh separatist. This claim must also fail:

    1)On a plain reading of the Tribunal's decision record this is what the Tribunal looked at. The words in the Tribunal's are:

    “his claim to be of interest to the police.”

    2)At CB 88.3, the Tribunal records its findings in relation to claims relating to the police and then says in the middle of this section at CB 88.5:

    “Also, the Tribunal finds the Applicant's claim that Police suspected him of involvement in the Sikh separatist Khalistan insurgency implausible given that he was living and working overseas during the whole period and this could be readily and easily established.”

    The Tribunal expressly refers to the police view and police suspicion of his involvement in the Sikh separatist movement.
    I cannot see in light of the above that the Tribunal's approach was so unreasonable that no reasonable decision maker could have come to the findings that it did in all the circumstances.
    The applicant has been unable to establish the factual basis for this claim, let alone that Wednesbury unreasonableness could be made out.

11. The third complaint alleges that the Tribunal was “procedurally unfair” and failed to comply with s.424A of the Act. Mr. Jayawardena relies on the Tribunal's statement in its decision record at CB 89.2:

    “If the Applicant fears a resumption of problems from his neighbour the Tribunal is satisfied that it is reasonable for him to relocate elsewhere within Punjab or within India."

    Mr. Jayawardena’s submission was that it was highly unfair of the Tribunal to have decided that it is reasonable for the applicant to relocate and that the Tribunal was in breach of the relevant principles as outlined in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. At the hearing, Mr. Jayawardena confirmed that he was not seeking to rely on s.424A of the Act in relation to this point. Rather, that the complaint was that it was unfair for the Tribunal to have decided that it was reasonable to the applicant and his family to relocate elsewhere without looking at relevant issues going to conditions in India and how difficult it would be for the applicant to overcome the difficulties of relocation.
    This ground must also fail:

    1)It is clear from the Tribunal's record that it found in relation to the claim of harm from the neighbour that he did not accept that the neighbour targeted the applicant for a Convention reason (CB 87.9). It was not satisfied that the problems with the neighbour had any link to the Convention and it based this on the applicant's own oral evidence (CB 88.2). These findings were open to the Tribunal on the material before it. In these circumstances it was clearly not necessary for the Tribunal to go on and make a finding about relocation to avoid problems with the neighbour.

    2)The clear central finding in relation to the claims relating to his neighbour was that any harm suffered was not for a Convention reason, that is, there was no Convention nexus. The subsequent finding on relocation does not appear to infect or affect this central critical finding. Nor was Mr. Jayawardena able to show any such impact.

    3)In any event, from the Tribunal's record of decision the Tribunal did discuss the issue of relocation of the applicant at the hearing before it (CB 84.8 to CB 85.1). The applicant was clearly on notice as to the Tribunal's views in this regard. The Tribunal was not required to consider the issue of relocation once it had made the finding that the applicant did not have a fear for a Convention reason emanating from the neighbour. It is understandable however, that that the Tribunal sought to make reference to this issue, given that it had discussed this issue with the applicant at the hearing before it. I can see no error in what the Tribunal has done in this regard and even if the applicant were able to produce evidence of what may have occurred at the hearing to challenge the Tribunal's account, the Tribunal's finding in relation to the neighbour that there was no Convention nexus remains unchallenged by this particular complaint.

1. The applicant's fourth complaint is that the Tribunal breached s.424A, s.430(1)(c) and s.424A(1)(d) of the Act in reaching its conclusions. This is particularised by reference to the Tribunal's statement at CB 88.3:

   “The Tribunal rejects the Applicant’s claims to have been arrested, interrogated and beaten by Police because he was suspected of an association with Khalistan extremists. This is because the Applicant failed to mention these matters or any fear of the Police on return in oral evidence (before finally being asked about it directly) and told the Tribunal that his only problem when he was back in India and that he fears on return, was and is his neighbour’s demands for money, and the harassment and threats that accompanied that.”

   At the hearing before me Mr. Jayawardena withdrew the connection to a statutory breach as the complaint, and sought to rely on the complaint that it was unfair of the Tribunal to rely on the fact that the applicant had not mentioned during the hearing until prompted, the matters in relation to the complaint against the police, because in the inquisitorial system employed by the Tribunal, the applicant, he said, would be responding to the questions as set by the Tribunal itself.
   Mr. Jayawardena submitted that the Tribunal should not be able to penalise (as he put it) the applicant because he failed to “narrate the entire story” when the Tribunal examined the applicant in the manner that it chose. On this basis, he submitted, there really was no probative basis for the Tribunal’s finding. The applicant, represented by a solicitor, has not brought to the Court any other evidence to contradict the Tribunal's account of what occurred at the hearing before it.
   The applicant's complaint now that the Tribunal managed the hearing process before it and thereby did not provide him with the opportunity to talk about the serious claims is contradicted by the Tribunal's record which at CB 85.1 says:

   “Asked if he wanted to say anything else about problems in India or what he fears on return the applicant said ‘no, that's all’.”

   It is after that, that the Tribunal makes the comment that the applicant now complains of. The Tribunal clearly gave the applicant the opportunity to comment on his problems in India and his fears on return to India and the applicant did not take up that opportunity.
   This reported exchange, unchallenged by any evidence before me, provides the clear basis for the Tribunal's subsequent comment and its subsequent finding.

2. To the extent that the applicant's complaint may also be seen as a complaint that the Tribunal's decision was lacking in logic or rationality, while some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The Court said, at [29] and [30]:

   “[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

   [30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT.  However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.  There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning.  Moreover, there are several bases upon which that reasoning can, in any event, be supported.  Accordingly, on the present state of the authorities, there is no reviewable error.”

3. In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore, J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54] the Court stated that:

   “[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.  This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act.  If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ).  An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …”

   “[54] Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s. 85(v) or the exercise by this Court of its analogous statutory jurisdiction under s. 39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”

   I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.

   In any event, I can see no such illogical, irrational or unreasonable approach by the Tribunal in how it went about its task. 

4. The applicant's fifth complaint is that the Tribunal was “procedurally unreasonable” in drawing the conclusions that it did at CB 87.8:

   “Having considered the Applicant's claims and evidence the Tribunal is prepared to accept that the Applicant has a long standing personal problem with his neighbour and that he was beaten up by him in 1979, as most of this was consistently claimed. The Tribunal does not accept that the neighbour targeted the Applicant for a Convention reason…”

   Mr. Jayawardena for the applicant submitted that the applicant had clearly stated that the neighbour had given false information to the police that the applicant had contact with Kalisthan extremists and that the applicant had claimed that the neighbour had wanted to fix him in “the Kalisthan problem”. He further submitted that in these circumstances the Tribunal's conclusion that the applicant was not targeted by the neighbour for any Convention reason was erroneous and procedurally unfair. Clearly on what is before me and again unchallenged by any evidence to the contrary, the Tribunal discussed the applicant's claims in relation to his neighbour with the applicant at the hearing before it. At CB 84.2 to CB 85.1 the Tribunal's record shows a discussion with the applicant about the claim of harm feared as it emanated from the neighbour and as it allegedly involved the neighbour's complaints about the applicant to the police. On the material before it, it was clearly open to the Tribunal to have reached the view that the applicant had a longstanding personal problem with the neighbour (CB 87 .8) and was even prepared to accept that he was beaten by the neighbour in 1979, but did not accept the other claims in relation to the neighbour that the targeting of the applicant by the neighbour was for a Convention related reason. At CB 87.9 to CB 88.7 the Tribunal gives reasons for why it did not accept the applicant's claims of harm involving the police and the Akali Dal flowing from the dispute with the neighbour. All these findings were open to the Tribunal to make on the material before it and it gave reasons. I can see no error in how the Tribunal has approached its task in this regard.

5. The Tribunal looked at the applicant's claims as variously put by the applicant and concluded that it was not satisfied that the applicant would face harm for a Convention reason if he were to return to India. In the circumstances the Tribunal was entitled to make the findings that it did, including the findings on credibility, and the applicant has been unable to establish any jurisdictional error on the part of the Tribunal. Accordingly this application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  26 August 2005