SZEQX v Minister for Immigration - [2006] FMCA 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQX v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 328

MIGRATION – Refugee – no substance to the applicant’s claims – the Tribunal properly considered the applicant’s claims – Tribunal took an adverse view of the applicant’s credibility – unsatisfactory presentation at the hearing – inconsistencies in information put before the Tribunal – the Tribunal considered all documentary evidence properly – decision did not rely on independent country information – no lack of rational thought and logical foundation for conclusions made – findings based on applicant’s own evidence – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 424A(1), 424A(2), 424A(3)(b).

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NABEv Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263
Kopalapillaiv Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703
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
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138
SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221
SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931

Applicant:

SZEQX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3273 of 2004

Judgment of:

Nicholls FM

Hearing date:

16 February 2006

Date of Last Submission:

09 February 2006

Delivered at:

Sydney

Delivered on:

16 February 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. S. McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3273 of 2004

SZEQX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

This is an application filed in this Court on 5 November 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 September 2004 and handed down on
12 October 2004 to affirm the decision of a delegate of the respondent Minister made on 31 March 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a citizen of India who arrived in Australia on
30 December 2003 and applied for a protection visa on 27 January 2004. His claims to protection are set out in his application for a protection visa reproduced at Court Book (“CB”) 3 to CB 33, in his application for review to the Tribunal reproduced at CB 43 to CB 46, in a statement dated 19 April 2004 reproduced at CB 47 to CB 48 and in the Tribunal’s report of the hearing it conducted with the applicant on 10 August 2004, which is at CB 74 to CB 82.5.
The applicant claims to fear persecution, if he were to return to India, were based on the Convention ground of religion and in particular that he had been the target of attack by Hindu fundamentalists because he had been popular in the Muslim community in his [home] area. The applicant provided further particularity to his fear in a statement dated 19 April 2004. He claimed that his brother (also a Muslim) had married a Hindu “girl” who was the daughter of a Hindu fundamentalist and that this had resulted in his torture and assault on his family by Hindu fundamentalists and police in India.
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 82.6 to CB 85.4. The Tribunal:
1)Noted that in his protection visa application the applicant claimed persecution because of his religion and that Hindu fundamentalists “had threatened to kill him because he was popular in the Muslim community in his area” (CB 83.3).
2)Did not find the applicant credible in relation to material aspects of his claims (CB 83.5).
3)Noted that he had set out further claims as to why he had been targeted by the Hindu community in a statement dated 19 April 2004, and that it related to his brother’s marriage to a “Hindu girl in Gujarat”. It further noted his claim that his brother fled to Pakistan to avoid “murder” (CB 83.6).
4)Found with reference to the hearing that the Tribunal conducted with the applicant, that he gave “different accounts”, that it was “difficult to obtain a clear answer” and that he was “inconsistent” and “evasive” (CB 83.8).
5)Noted that the applicant in his evidence (at the hearing) confirmed that the alleged marriage between his brother and the Hindu girl was “the sole reason” for the persecution he claimed to have suffered prior to leaving India (CB 84.2).
6)Found that it was not satisfied that the applicant’s brother had a relationship with a Hindu girl or that he married her, or had fled to Pakistan with her (CB 84.4).
7)Did not accept that the applicant’s brother had been residing in Pakistan since 1999 as claimed (CB 84.6).
8)Found that the applicant at the hearing before it was “constantly vague in his replies” and that this was not due to any claimed “inability to recall matters” (CB 84.7).
9)Found that “his demeanour gave every impression of a person who was attempting to come up with answers on the spot without regard to any real history (CB 84.8), and that it was this that gave rise to the inconsistencies in the applicant’s evidence (CB 84.9).
10)Did not accept that the applicant had suffered any serious harm and rejected his evidence about the assaults, killings, kidnapping and other claimed persecution (CB 85.1).
11)Found that there was no credible evidence upon which it could find that the applicant stood a risk of suffering serious harm (CB 85.2).
12)Accepted that the applicant is a Muslim but was not satisfied that the applicant had a genuine fear of persecution because of his religion as claimed (CB 85.3).
On this basis the Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution for reasons of religion if he returned to India and as such was not a person to whom Australia owed protection obligations.
The applicant’s originating application to this Court, filed on

5 November 2004, contains a series of one line complaints, without any particularity whatsoever, often seen in this Court, and at best described as formulaic. In any event on 25 January 2005 the applicant filed an amended application which complained:
“That the RRT decision was effected [sic] to take into account a relevant consideration when it assessed weather [sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
The tribunal did not properly consider in assessing the chance of my persecution and persecution on my return to India based on my religious believe & the member of a Particular Social group in India. I was persecuted because I am a Muslim minority in India. If I persecuted by the BJP, RSS & Shivsena it is not possible for me to relocate any other place in India. I will be persecute if I return back to India because of my religious believe. It is a convention base persecution. I have did not provide documentary evidences to established my persecution.
I was persecuted by BJP, RSS & SHIVSENA. It is true I did collect more relevant documentary evidences to prove my persecution. Because I have no one to help me to collect more documents.
The tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail consider my documentary evidences with the proper way which the migration Act 1958 provided in my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars:
The tribunal did not provide me adequate particulars of the independent information.
The tribunal did not provide me an adequate opportunity to respond the substance of the information.
The tribunal finding that the totality of the country information does not show that Muslims are persecuted in India.
I attend the Tribunal hearing & I provide oral evidence but the tribunal did not properly consider my claims with Migration Act 1958.
Without proper consideration of oral evidence if the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgment plaintiff S157 v Commonwealth of Australia (4 February 2002).
I repeat the claims as relief which I provided in my application under judiciary act 1903.”
The applicant was unrepresented at the hearing before me. He appeared with the assistance of an interpreter in the Tamil language. Ms. McNaughton appeared for the respondent. The applicant was unable to provide anything of substance to support the claims made in his amended application. I should note that this also appears in part to be similar to other applications often seen in this Court. It is difficult to dispute the respondent’s submissions that they “appear to have been copied from an unrelated matter”. I will deal with the complaint relating to independent information not having been put to the applicant below. (No independent information was relied upon by the Tribunal in its decision). Given that the applicant was unrepresented I pressed him as to whether there was anything he could say in support of his application. Nothing of substance resulted:
1)He stated that if he returned to India there was no safety or protection for him. In all the circumstances this did not rise above a request for impermissible merits review.
2)The applicant also claimed that he had received “a document” from overseas (possibly the USA) which he said would go to support his case. It subsequently turned out that “the document” was a postal consignment note relating to a “parcel of sweets”.
3)He further claimed that he was “unwell”, that his life was “ruined” and that he was on medication. The applicant was unable to state how any of this showed error on the part of the Tribunal, and (understandably) appeared to be aimed at attracting the Court’s sympathy.
In looking at the one ground put forward by the applicant in the amended application it is perhaps more useful to seek to focus on the particulars put forward by the applicant as a better means of seeking to discern his complaints about the Tribunal's decision.
The applicant complains that the Tribunal did not properly consider whether the applicant had a real chance of persecution if he returned to India based on his religious beliefs, and his membership of a particular social group in India being that he was part of the Muslim minority.
The claim that the Tribunal did not properly consider his claim based on his religious belief is clearly not well founded on a plain reading of the Tribunal's decision record and in particular its “Findings and Reasons”. The Tribunal states at CB 82.8:
“In summary the Applicant claims that he will be persecuted if he returns to India for reasons of his religion, in that he has been the victim of on-going attacks and tortured the hands of Hindu fundamentalists.”
The Tribunal further noted that the applicant had claimed that he had been tortured, attacked and lost all of his property in India because of his religion and made references to Hindu fundamentalists that threatened to kill him because he was popular in the Muslim community. It further noted the claim relating to his brother and the difficulties based on religious grounds that were claimed to have arisen. The Tribunal clearly explored these issues with the applicant at the hearing that it conducted with him. The Tribunal's extensive account of what occurred at the hearing (CB 74.1 to CB 82.6) is unchallenged by any evidence to the contrary, indeed any evidence whatsoever put forward by the applicant now. The Tribunal clearly recognised the applicant’s claims in this regard. But the Tribunal's decision clearly turned on its adverse view of the applicant's credibility at the hearing before it. It is quite clear that the Tribunal did not find the applicant to be a credible witness in relation to the material aspects of his claims.
I should just note that to the extent that the Tribunal made mention of the applicant's claims contained in his protection visa application it is quite clear that the Tribunal's adverse view as to the applicant's credibility arose, as the Tribunal saw it, from the applicant’s unsatisfactory presentation at the hearing that it conducted with him. It found him to be “inconsistent” and “evasive” and that he gave “different” accounts, and that it was difficult to obtain clear answers from him.
To the extent that, further, there were inconsistencies between what the applicant said to the Tribunal at the hearing before it, and in his statement dated 19 April 2004, I should note that while this statement was clearly prepared before the making of the application to the Tribunal (27 April 2004), it was prepared after the decision of the delegate (31 March 2004) and well after the date of the delegate’s letter (31 March 2004) notifying the applicant and his adviser of the delegate’s decision (see CB 34 to CB 35). It can be seen to have been specifically put before the Tribunal by the applicant as part of his application for review. In particular I note that in his application for review (CB 45) the applicant complains that the “departmental delegate” did not give him an opportunity to submit his statement, and the statement is therefore submitted to the Tribunal. The applicant's reference to “I attached my statement”, while expressed in the past tense clearly in the circumstances cannot be seen as a statement that it was attached to his protection visa application. While the applicant may have made some attempt to put this statement before the Minister's Department subsequent to the making of the delegate’s decision it is clear by this reference that he sought to put this statement before the Tribunal as one basis of complaint about the delegate’s decision. In that regard information contained in that statement, relevant to the Tribunal’s decision, to the extent that the Tribunal subsequently relied on any such information (in the context of any SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24/ Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 issue (SAAP/Al Shamry)) is in my view information supplied to the Tribunal by the applicant for the purposes of the application for review and is therefore information exempt from the requirements in s.424A(1) of the Migration Act 1958 (“the Act”), by operation of s.424A(3)(b) of the Act. Any inconsistencies that the Tribunal may have found clearly relate to inconsistencies in the information that the applicant put before it, and inconsistencies at the hearing.
In all the circumstances the applicant's assertion now that the Tribunal did not give “quite proper” consideration does not rise above a request for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The applicant also claims that he was persecuted because he was part of the Muslim minority in India, and that as he was persecuted by Hindu nationalists it was not possible for him to relocate to any other place in India. Simply, the Tribunal's decision did not turn on any finding in relation to relocation. The Tribunal's decision was based on its view of the applicant's credibility, and the Tribunal's findings that it did not accept that the applicant had in fact suffered any serious harm. The Tribunal's rejection of the applicant's claims on credibility grounds is of course, as the respondent submits, a matter “par excellance” for the Tribunal Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] (“Durairajasingham”) per McHugh J.
In relation to the claim that the Tribunal failed to properly consider his claims in the context of his membership of a particular social group in India, the applicant does not specifically say which social group. But to the extent that it appears that he is saying that the social group is the Muslim minority in India, then the applicant's claims in this regard were clearly dealt with by the Tribunal. While it accepted that the applicant was Muslim by religion it was not satisfied that the applicant had a genuine fear of persecution on the basis of his religion as claimed by him (CB 85.3). Nor is there anything before me to show that any other such claim arose on the material that was put before the Tribunal such as to require consideration within the principles set out in NABEv Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263 (“NABE”).
The applicant asserts that he did not collect, and put, the documentary evidence to the Tribunal to establish this persecution. He claims that this was due to “the fact” that he had no one to assist him to collect this relevant documentary evidence. Clearly this does not assist the applicant. The applicant was represented by a migration agent throughout the period of the consideration of the application for review. There is nothing from the applicant, or his agent, put to the Tribunal by way of complaint or otherwise to show that the applicant was denied any opportunity to put forward any further material. In fact the Tribunal specifically records at CB 82.5 that it asked the applicant at the hearing if there was any further matter that he wished to raise with the Tribunal. Nor is there any obligation, in the circumstances before me, on the Tribunal to undertake any investigation to obtain any such “documentary evidences”, although even now the applicant is not clear as to exactly what this documentary evidence could be.
The applicant also complains that the Tribunal failed to consider his “documentary evidences in the proper way”. The documents submitted by the applicant are his application, and the statement of 19 April 2004 to which he referred in his application to the Tribunal. The Tribunal dealt with both of these documents and did not fail to consider any relevant matters raised in those documents. The only other document, if indeed it can be seen in that context, is the applicant's Indian passport. But in any SAAP/Al Shamry context, this was clearly produced to the Tribunal at the hearing it conducted with the applicant (CB 81.5), and anything that the Tribunal drew from the passport therefore falls within the exemption provided in s.424A(3)(b) from the requirement to put the information contained in the passport to the applicant pursuant to s.424A(1) in the manner set out in s.424A(2).

The only other document, from the material put before me, that it appears that the applicant produced to the Tribunal (CB 63) was a document dated 10 December 2003 being from a doctor in the “Medical University Chennai” setting out details of medication and vitamins that the applicant should be prescribed. This is referred to in the Tribunal's account of the hearing at CB 78.4. While the Tribunal does not make specific reference to this document under the heading of its “Findings and Reasons” there is of course no obligation for the Tribunal to do so. As the Tribunal observed at CB 78.4 the document was put forward in the context of the applicant's assertion that he had been bitten by a dog, and the Tribunal further noted that the document contained no reference as to any illness or condition, but was a setting out of details of medication and vitamins that the applicant should be prescribed. It is clear that the document was acknowledged by the Tribunal. But clearly as is evident on its face and in the absence of anything else, it was not seen as an element in supporting the applicant's claims.
The applicant also complains that the Tribunal did not provide the particulars of “the independent information” and that it did not give him “adequate opportunity” to respond to the substance of the independent information. The applicant does not, in any way, say what information he is referring to (although the next particular may give some clue). But in any event it is quite clear that the Tribunal's decision did not rely on any independent country information in coming to its ultimate conclusion, which was based entirely on the Tribunal's adverse view of the applicant's own evidence. This complaint cannot succeed.
By way of particulars the applicant refers to the Tribunal's alleged finding that “the totality of the country information does not show that Muslims are persecuted in India”. A plain reading of the Tribunal's decision record shows that the Tribunal made no such finding. No country information was relied on in this regard, and nor was any finding made that Muslims were not persecuted in India. The applicant was unsuccessful before the Tribunal clearly on the view that the Tribunal formed of the applicant’s own evidence and his demeanour. This also cannot succeed.
The applicant also complains that he attended the Tribunal hearing, provided oral evidence, but that the Tribunal did not “properly” consider his claim. This also must fail. The Tribunal gave an extensive account of the oral evidence provided by the applicant at the hearing before it, and made findings that were open to it on the material before it. As to the adverse views that it took of the applicant's credibility, clearly as Ms. McNaughton submits, these were properly open to the Tribunal on what was before it: Durairajasingham at [67]; Kopalapillaiv Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at 558-559; W148/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703 at [64]-[69]. The applicant may indeed claim, as he does in this part of his particulars, that “without proper consideration of oral evidence the Tribunal decision is affected by the procedural fairness”, but whatever the applicant's claim is in this regard, it is quite clear that the Tribunal did consider the applicant's oral evidence, it just did not believe him. No error can be established in this regard.
The applicant also complains that the Tribunal's decision that he is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. 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 (“S20”) 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 (“NACB”) 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 the 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.”
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.
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. There is nothing before me in any event to show that the Tribunal's decision is affected by any lack of rational thought, or is lacking a logical foundation for its conclusion.
As I have already said the Tribunal's decision clearly turned on the applicant's inability to convince the Tribunal of the credibility of his claims as presented at the hearing before the Tribunal and to the extent that these claims were internally inconsistent, and inconsistent with his claims as set out in his statement of 19 April 2004 provided to the Tribunal.
I should note that at one part of its “Findings and Reasons” the Tribunal does make reference to the applicant’s protection visa application, and that there was no reference in that application to any brother residing in Pakistan. This was in the context of the applicant’s subsequent claim that his brother had married a “Hindu girl” and fled India for Pakistan. The Tribunal stated that it was not satisfied that the applicant’s brother had been residing in Pakistan, since the applicant would not have overlooked this in making his protection visa application. In any SAAP/Al Shamry context, I take the view that the Tribunal’s lack of satisfaction that his brother had fled to Pakistan was clearly based on a completely separate set of reasons by the Tribunal. The Tribunal was not satisfied that the applicant’s brother had had a relationship with a Hindu girl, had married her and therefore had then fled to Pakistan with her. That finding is sufficiently based in material other than the comparison of the inconsistency between the protection visa application and the applicant’s subsequent statement to clearly stand alone. It was clearly derived from the applicant’s written statement to the Tribunal and what he said to the Tribunal at the hearing before it. Nor was the Tribunal’s adverse view of the applicant’s credibility based on any inconsistency between information in the protection visa application and what the applicant subsequently said to the Tribunal. The Tribunal's finding on the applicant's credibility stands without the Tribunal basing its adverse credibility view on this particular issue. In this regard I note that the Tribunal states in introduction to this point at CB 84.5 “I also note”, a clear inference that this was additional to the other points leading to its lack of satisfaction with the applicant's claims. In any event a view could be taken of this that it was not the information itself on which the Tribunal relied, but the inconsistency in the absence of information with the subsequent claim made at the hearing that gave the rise to the Tribunal's concerns.
In all therefore, the Tribunal's finding in relation to the applicant's claims rested on the applicant's evidence given predominantly at the hearing before the Tribunal, and arising out of a statement which the applicant had provided to the Tribunal. The Tribunal in particular emphasised (CB 84.9):
“The applicant was vague in his replies when questioned about details regarding the claimed relationship between his brother and the Hindu girl, the alleged assaults upon himself and his brother and the alleged kidnappings of his parents, wife and children. This vagueness was not due to any claimed inability to recall matters. His demeanour gave every impression of a person who was attempting to come up with answers on the spot without regard to any real history. It was this, in my view, which led to the many inconsistencies in the version he gave.”
None of the grounds (to the extent that these grounds can be discerned from the applicant's particulars) show jurisdictional error in the Tribunal's decision, nor can I discern any such error on the material before me. The application is therefore dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 7 March 2006