SZEEZ v Minister for Immigration
[2005] FMCA 400
•23 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEEZ v MINISTER FOR IMMIGRATION | [2005] FMCA 400 |
| MIGRATION – RRT decision – Indian persecuted for perceived association with LTTE and as Muslim – disbelieved by Tribunal – no error found. |
| Migration Act 1958 (Cth), ss.422A(3), 422B(1), 422B(2), 424, 424A, 424A(3)(a), 483A, Part 8 Judiciary Act1903 (Cth), s.39B |
| Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZEEZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2571 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 23 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2571 of 2004
| SZEEZ |
Applicant
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) challenging a decision of the Refugee Review Tribunal dated 28 June 2004 and handed down on 22 July 2004. The Tribunal affirmed a decision of a delegate refusing a protection visa for the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act.” In matters such as the present, the relevant jurisdiction is conferred by s.39B of the Judiciary Act1903 (Cth), but subject to limitations under Part 8 of the Migration Act. Those limitations as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 have the effect that I can only set aside the Tribunal decision and send the case back if I am satisfied that the Tribunal's decision was affected by jurisdictional error.
I do not have power to set aside the decision merely because I think the applicant deserves a second hearing by the Tribunal. It is not my function to decide whether the applicant is a refugee or should be given the visa.
In the present case the applicant entered Australia in September 2003, and with the assistance of an agent he lodged an application for a protection visa on 21 October 2003. The application attached a handwritten statement of nine pages signed by the applicant, but no supporting documentation. The agent said: “My client is obtaining additional corroborative evidence from India to support his application.”
The delegate refused the application on 6 February 2004. He noted that more than three months had elapsed since the application was lodged, and no further documentation had been provided. He said he was not satisfied as to the credibility of the claims made by the applicant.
The handwritten statement as reproduced in the Court book is difficult to decipher, but it appears to me that the Tribunal has carefully read it and understood its contents. The Tribunal has also considered documents forwarded to the Tribunal shortly before a hearing conducted on 3 June 2004.
The Tribunal noted that before the material was lodged, it had sent two letters to the applicant and his agent under ss.424 and 424A requiring additional information and comments, which had only partly been responded to.
The Tribunal, however, conducted a full hearing, and it set out in its reasons an extensive questioning of the applicant concerning his claims. Although the transcript is not in evidence before me, and the applicant has indicated that he lacks the funds to obtain the transcript, there is nothing in the material before me to cause me to doubt the correctness of the Tribunal's description of the hearing. In my view it is clear from that description that the Tribunal has properly put to the applicant all its concerns about his narrative, and also its concerns arising from independent country information which the Tribunal used to assess the credibility of the applicant's claims.
I can find no arguable departure by the Tribunal from any of the procedures required under Division 4 of Part 8 of the Migration Act which, in the applicant's case, provided an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they dealt with” (see s.422B(2)).
The Tribunal, under the heading “Findings and Reasons”, summarised the applicant's claims which it had set out at much greater length earlier in its reasons. I consider that its summary, though bald, is not inaccurate nor incomplete. It said:
I find the applicant is a national of India and I have assessed his case accordingly.
The applicant’s claims may be summarized as follows:
The applicant joined his father’s company and introduced a college friend into the business. Later that person, Mr S, left and became an agent, giving business to the applicant’s travel business. That friend was associated with the LTTE and one of his ‘candidates’ who was associated with the LTTE, Mr K, was arrested at the airport and falsely implicated the applicant.
The applicant was placed in gaol, was beaten by the Police and later released on bail. Mr S telephoned and the applicant refused to do business with him, and informed the Police of his whereabouts. Mr S escaped but sent two LTTE operatives who hanged the applicant’s mother as revenge.
The present ruling Party and authorities tortured him because of his political and religious beliefs.
The applicant was blacklisted by society as a result of his ongoing Police investigation. He joined the TMMK Party for support.
Later, as a further act of revenge the applicant’s son was murdered. The Police came to investigate and the applicant fled to Ooty. After a year he tried to leave for Malaysia, but was detained by the CBI (Central Bureau of Investigation) and was placed in remand for a month. He was released after the payment of a bribe.
Through the help of a friend’s friend who was an immigration officer, he departed for Malaysia. He heard that the Tamil Nadu Police were looking to file cases against him. The applicant returned to India and was required to report at a Police Station every week. He was unable to conduct business due to his now low status in society. The applicant attempted suicide but was rescued. He stayed in India for a year and then arranged to travel to Australia on a temporary business visa. He has been advised that the Tamil Nadu Police are searching for him under the PDA (POTA) Act.
The applicant also feared harm for reasons of his being Muslim.
In its reasoning, the Tribunal accepted that it should assess the claims of the applicant bearing in mind that it would be hardly surprising that applicants might be tempted to embroider their accounts. However, the Tribunal considered that in the present case the applicant's presentation of evidence at his hearing caused it to regard several of his claims as being implausible due to the novelty of new evidence raised, the lack of substantiation, his admission that he had provided false information when obtaining a visa to enter Australia, and his unsureness of details of his claim which the Tribunal considered significant.
The Tribunal addressed the applicant's specific claims, and rejected them almost entirely. It did not accept that the applicant's mother had been hanged by two LTTE operatives. This was significantly because of what it regarded as manufactured responses to questioning. It also indicated that it would not attach weight to a document which had been put forward by the applicant, being a "certificate" from an advocate and notary in India purporting to corroborate the hanging. The Tribunal gave reasons for not attaching weight to that document arising from its content and presentation. I consider the Tribunal was entitled to do that, and that no procedural irregularity affected its weighing of that document.
The Tribunal did not accept that the applicant's son was murdered, for similar reasons. It did not accept that the applicant had joined a political party for protection, significantly due to his shifting evidence given to the Tribunal. It did not accept that the applicant had fled from the police, nor paid a bribe to get bail. It did not accept his account of how he was able to depart India despite being wanted by police, relying in particular on country information concerning immigration procedures in India.
The Tribunal positively found that the applicant was not sought by the authorities. It did not accept that there were cases filed against the applicant, nor that the present ruling party and authorities had tortured him because of his political and religious beliefs.
It referred to the applicant's claims to have left his family in India while travel to Malaysia and China and then returning to India. It found that the applicant’s return indicated that he did not have a subjective fear of persecution in India.
The Tribunal referred to the applicant's admitted lies when obtaining a temporary business visa to enter Australia. It concluded:
Having regard to that admission and my other findings regarding the applicant's lack of credibility, the applicant is not a credible witness. I therefore reject his claims as set out in this decision.
The Tribunal expressly addressed the applicant's claimed fear of harm for reason of his being a Muslim, and did not accept any of his claims. It held that there was no specific basis for the applicant being targeted by the authorities or the ADMK party, or not being provided with adequate protection because of his religion. It was not satisfied that he had a well-founded fear of persecution for Convention purposes, nor that he was a refugee.
I consider that the Tribunal's reasons show generally a careful and thorough analysis of the evidence, and I consider its various conclusions I have summarised above were open to it on the evidence it had before it. I can find no jurisdictional error affecting its decision.
The applicant has filed three documents in this Court purporting to raise grounds for review. His original application contained a list of general heads of review without any particulars or apparent relationship to the Tribunal's decision. I am unable to find an argument which would support any of them.
A similar difficulty faces me in relation to unparticularised grounds 4 through 10 listed in an amended application filed on 2 November 2004.
Ground 1 in that document claims that the Tribunal denied the applicant procedural fairness and does purport to provide particulars of this. The first particular complains that the Tribunal found the applicant’s claims implausible, and amounts to no more than a challenge to the Tribunal's factual assessment of the case.
The other particulars of Ground 1 claim a denial of procedural fairness in relation to the Tribunal's use of independent country information. Neither the document nor the applicant's oral submissions to me have identified any specific basis for these complaints. However, I have considered how the Tribunal used country information. In my view, the complaint gives rise to no ground of jurisdictional error since:
i)the Tribunal's reasoning dominantly relied on findings as to credibility based on assessment of the applicant's particular narrative and how he presented it, and did not significantly rely upon independent country information;
ii)at the points where the Tribunal did assess his narrative against independent country information concerning India, its concerns were, in my opinion, put clearly to the applicant, both in its s.424A letter, and in the course of the hearing; and, furthermore,
iii)the applicant is not able, as a matter of law, to complain of being denied an opportunity to comment and respond to general information relied upon by the Tribunal due to the combined effects of ss.422B(1) and 422A(3) as interpreted in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.
I therefore think this ground of review fails.
Grounds 2 and 3 make the same complaint concerning the use of country information, but allege that this amounted to a breach of the Tribunal’s obligations under s.424A(1). However, they seek to rely on an interpretation of s.424A(3)(a) which has been rejected in NAMW (supra), which is a Full Court decision which I regard as binding on the point.
I therefore can find no grounds for review successfully raised in the amended application.
The applicant filed a “written argument” which makes no points which I have not already dealt with above. As so often appears in matters in this Court, its submissions have been compiled from documents presented in other cases and manifestly have no bearing on the present case. For example, in the present document, the applicant complains that the Tribunal failed to investigate his claims concerning persecution in Fiji - a country which receives no mention in the applicant’s refugee claims.
I reject assertions in the document that the Tribunal ignored or failed to properly consider the merits of the applicant's claim for refugee status on the material that the applicant had presented to the Tribunal.
For the above reasons, I can find no jurisdictional error affecting the Tribunal’s decision, and dismiss the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 4 April 2005
1
2
2