SZEUW v Minister for Immigration
[2005] FMCA 989
•27 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUW v MINISTER FOR IMMIGRATION | [2005] FMCA 989 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – TMMK – Tamil Nadu – good faith – attention given to applicant’s evidence – no obligation to expose reasoning process – merits review – opportunity to comment on adverse information – relocation – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration & Multicultural Affairs; Ex Parte Miah [2001] HCA 22 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZEUW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2043 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 27 June 2005 |
| Date of Last Submission: | 27 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr JAC Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2043 of 2004
| SZEUW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 19 May 2004 and handed down on
10 June 2004.
The applicant is a citizen of India and of Tamil ethnicity. He arrived in Australia on 26 August 2001 and on 6 September 2001 he applied for a protection visa. A delegate of the Minister refused this application on 2 April 2003. The applicant lodged an application for review with the Tribunal on 14 April 2003 and attended a hearing on 19 January 2004. The Tribunal affirmed the decision of the Minister’s delegate to refuse to grant a visa on 19 May 2004 and handed down its decision on 10 June 2004.
Claims before the Department and the Tribunal
The applicant claimed to be working as a secretary of the Tamil Nadu Muslim Munnetra Kolayam (TMMK) in his village since 1998. There were only a few Muslims living in his village and he felt that all the Hindu people were against him because of his political activities which were in opposition to their own.
The applicant said that the TMMK was established to inform people about their rights and to gain more rights for Muslims in India. On
19 October 1998 he had planned to arrange a public meeting to let people know about the government percentages allotted to Muslims and why they did not get any benefits from the Government. Hindus came to his house, however, and told him that he should not arrange such a meeting. He alleged that they threatened him with death if he continued to arrange the meeting.
He referred to the destruction of the Babri mosque on 6 December 1992 by Hindus and asserted that the Indian Government did not take any action. On 6 December 1998 he had intended to remind the Government to rebuild the mosque through a remembrance protest. The police knew that he had the intention of creating a “black” day and arrested him and others on 29 November 1998 and released them on 11 December 1998. Once again in 1999 he was going to organise a remembrance of the mosque tragedy, but police arrested him on
29 November and released him on 9 December 1999. After this he was threatened once more by Hindus with death if he did not stop his activities.
The applicant therefore joined the DMK, a political party, as a youth leader. Once again he was threatened. The DMK lost the 2001 election in Tamil Nadu and its leader was arrested along with other political leaders. The members of the ADMK, the rival party in his village, looked to kill the applicant. He went to Chennai but was followed there. His parents persuaded him to leave India. Later when he was in Australia his mother informed him that his house had been burned down by ADMK supporters. The Hindus in his village continued to harass his family seeking information on where he was.
In his statement to the Tribunal he mentioned a bomb blast in Mumbai and how he was in constant fear last time he had been in Mumbai, which is why he could not relocate there. He also claimed that he did not have any documentary evidence to put before the Tribunal as his house had been burned down.
Tribunal consideration
The Tribunal’s consideration is accurately summarised in the respondent’s submissions at paragraphs 9 to 15:
9.The Tribunal recited at length the applicant’s claims. It then made significant adverse findings about the applicant’s credibility. It said:
“Whilst I accept that the Applicant was a supporter of the political parties of which he claimed membership, I find much of his evidence on critical matters which go to the heart of his claims for refugee status, to be variously confused, incoherent, implausible and inconsistent, and I detail this evidence as below …”
10.The Tribunal dealt with the case under five headings as follows.
11.The first heading was: “[s]tatements relating to political activities”, in respect of which the Tribunal found:
(a) the applicant did not produce any documentary evidence to support this claim;
(b) he first told the Tribunal that the evidence had been lost when his home burnt down in India, but then when reminded by the Tribunal that he had earlier said that he had been living with his parents, and his parents continued to live at that address, he said that part of the house was destroyed;
(c) the Tribunal did not believe that part of his parents’ house was burnt down and his documents destroyed;
(d) even if his documents had been destroyed as claimed, he had had three years since arriving in Australia to obtain duplicates, or other documentary evidence;
(e) the Tribunal was satisfied that the documentary evidence which the applicant claimed was destroyed by fire never existed;
(f) his explanation for the lack of documentary evidence was not credible; and
(g) the Tribunal was satisfied that the applicant was never a high profile office-holder and therefore did not come to the adverse attention of the authorities on this account.
12.The second heading was: “[s]tatements relating to reasons for jailing etc”, in respect of which the Tribunal found:
(a) in light of the applicant’s evidence and the Tribunal’s earlier finding that the applicant was never a high profile office holder in any political party, it was satisfied that there was no logical reason why the applicant would have been arrested and was satisfied that he was never arrested in India on account of his political activities and was therefore never mistreated in jail, as claimed; and
(b) it was also satisfied that no member of the applicant’s family had suffered serious harm amounting to persecution.
13.The third heading was: “[d]elay in departing from India after obtaining his passport”, in respect of which the Tribunal found:
(a)when asked why he had delayed departing India the applicant’s response was garbled and incoherent; and
(b)it did not believe the applicant spear-headed an election campaign, or therefore came to the attention of opposing political parties or the police.
14.The fourth heading was: “[d]e-facto relationship”, in respect of which the Tribunal found that the issue of this relationship or any problems associated with it, or his fathering of a child were not Convention related matters.
15.The fifth heading was: “[r]e-location”, in respect of which the Tribunal found:
(a)it was not satisfied that there was any Convention-related reason why the applicant could not re-locate to Mumbai, as he had previously done, and it did not accept that he had a genuine fear of suffering harm for a Convention-related reason in Mumbai; …
After summarising its findings on each of the five matters, the Tribunal then went on to find that the applicant’s claims for refugee status were complete fabrications and without foundation. It was satisfied that he had never suffered persecution in India because of his political opinions and did not have a genuine fear of suffering persecution in India for a Convention-related reason.
Consideration
The amended application filed on 26 November 2004 contains four grounds. The applicant filed an outline of submissions which did no more than repeat these grounds. At the hearing the applicant did not expand on any of these, although a number of other grounds were raised.
Grounds in the application
As far as the four grounds in the amended application were concerned, the applicant said he relied on his outline of submissions. I will deal with each of these four grounds in turn.
Ground one asserts:
The Tribunal paid so little attention to what the Tribunal actually said at hearing that a Court would find that the decision was not made in good faith.
Presumably the applicant is asserting that the Tribunal paid little attention to what the applicant actually said at the hearing. In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43], the Full Court of the Federal Court said:
First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial …
No evidence has been put to the Court about what was said at the Tribunal hearing. There is no transcript before the Court and no oral evidence has been presented.
Having regard to the Tribunal’s own record of the hearing in its reasons for decision, I can discern nothing which would support an allegation of bad faith. The Tribunal set out both the oral and written evidence at some length. It analysed this evidence in making its findings and appears to have paid proper regard to the evidence given at the hearing. There is nothing before me to suggest that it paid little attention to the applicant’s evidence.
In view of the requirements from SBBS, the allegation of bad faith must be rejected.
The second ground is:
The Tribunal’s expectation that I would be able to replace documents burned should have been put to me.
As the respondent has submitted there is no evidence before the Court the Tribunal did not put this to the applicant for comment.
Even assuming that the applicant was not told about the Tribunal member’s concerns in this respect at the hearing, the Tribunal was not under an obligation to put this concern to the applicant and seek his comment.
It is clear from the Court Book at page 76 that the lack of documentation to support his claimed membership of political parties was an issue. This matter was also included in the applicant’s own statement to the Tribunal at Court Book page 105 at paragraph 14.
As the respondent has submitted the conclusion reached by the Tribunal that the applicant had had plenty of time to obtain duplicates of documentary evidence was just part of the reasoning process of the Tribunal. Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 has made clear that the Tribunal is not obliged to expose its reasoning process so that the person affected may comment on that reasoning. Nor is the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there is a full warning of all possible reasons for failure: see Re Minister for Immigration & Multicultural Affairs; Ex Parte Miah [2001] HCA 22.
There is no substance in the second ground.
Ground three provides:
The Tribunal made numerous makes mistakes in transcribing the evidence:
(a)The Tribunal did not ask me if my statement was read back to me - it asked whether it contained my claims.
(b)The Tribunal in two places describes my evidence as “garbled”. …
(c)The Tribunal left out an important part why I was sought by the police - that I carried banners which depicted the Chief Minister in sex scenes. They were not ordinary papers.
(d)The Tribunal stated that I changed the evidence about the burning of my house, saying that this later evidence was that, “part of the house was destroyed”. My evidence was that the house was repaired.
The fundamental problem with this ground is that there is no evidence before the Court in support of the applicant’s claims that the Tribunal made mistakes in transcribing the evidence. The applicant has not put any evidence before this Court beyond the Tribunal’s reasons of what actually took place at the hearing.
Furthermore what the applicant appears to be doing is cavilling with the findings of fact made by the Tribunal. As I pointed out to the applicant at the hearing and as has been said by the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
In my view the allegations in ground three do not establish jurisdictional error. There is absolutely no evidence before this Court that the Tribunal’s findings in these matters contradict evidence that the applicant put to the Tribunal. Without compelling evidence to the contrary I should accept what the Tribunal has said in its reasons as accurate. This ground should be rejected.
Ground four states:
In addition, it did not put to me that the Tribunal thought that he could obtain copies of documents.
It is unclear what the applicant is asserting in this ground. The best that I can make of it is that it simply repeats ground two and it should be rejected for the same reasons.
Other grounds
Two issues were raised during the hearing today, one by the applicant concerning s.424A of the Migration Act 1958 (Cth) (the Act) and information about a Mr Jahir Hussein and the other by myself on relocation.
Section 424A
At Court Book page 147 the Tribunal said:
The Tribunal asked the Applicant who had written the handwritten statement he had initially submitted with his primary visa application. The Applicant told the Tribunal that the person who had written this statement on his behalf was a person called Jahir HUSSEIN whom he had met in Surrey Hills in Sydney. The Applicant told the Tribunal he had seen Mr Hussein “in a shopping place” and as he [the Applicant] could not write English, he asked for Mr Hussein’s assistance. The Tribunal asked the Applicant whether or not Mr Hussein was at that time a complete stranger. The Applicant replied that he did not know anyone else here in Sydney, and he told Mr Hussein his whole history, which Mr Hussein wrote down for him.
The Tribunal then advised the Applicant that the Tribunal had before it a claim for refugee status by a person with a very similar name to that just supplied by the Applicant, whose claims were almost identical to those of the Applicant. The Applicant’s response was that he did not know anything about that, but that he had just told Mr Hussein about the problems he (the Applicant) had encountered, and this person just wrote down the Applicant’s story as was recounted to him by the Applicant.
At Court book page 127, paragraph four, the applicant made a statement in which there is also some reference to Mr Jaheer Hussein.
At the Court hearing the applicant raised the issue of the alleged almost identical nature of the applicant’s and Mr Hussein’s claims. This was in the context of s.424A of the Act which sets out a requirement that the Tribunal must place information before an applicant which it considers would be the reason or a part of the reason for affirming the decision that is under review.
As the High Court has said in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 this information or the particulars of this information must be provided to the applicant in writing, even if it has been drawn to their attention or comes to their notice at a hearing.
So in this case if the information about the almost identical nature of the applicant’s and Mr Hussein’s claims was the reason or part of the reason for affirming the primary decision the applicant was entitled to be advised in writing about these concerns in accordance with s.424A.
Was this information the reason or part of the reason for affirming the decision? Or, as the Full Court said in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [41], was it –
… not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).
In my view this information was not the reason or part of the reason for affirming the decision. This information was not mentioned at all in the findings and reasons of the Tribunal which are set out at pages 150 to 155 of the Court Book. It was raised by the Tribunal at the hearing, as recorded at Court Book page 147, in that section of the decision record dealing with claims and evidence arising from the Tribunal hearing. In my view this information was clearly not relied on by the Tribunal as the reason or part of the reason for affirming the decision under review. Again there is no jurisdictional error here.
Relocation
This was an issue that I indicated to the respondent’s counsel at the hearing as being of concern. At Court Book page 154 in the Tribunal’s findings and reasons the Tribunal said:
5. Re-location
At para 11 in his statement to the Tribunal, the Applicant stated:
11. How am I to continue staying or to make an earning in India if I am disturbed or harassed every time there is a procession or demonstration of any kind against the party or people whom I had in the past rallied and preached against unfavourably? I am spotted even if I am to live in Mumbai.
At para 13 in his statement to the Tribunal, the Applicant stated:
I’m afraid to go back to face the consequences. The last time when I was in Mumbai, I was living in constant fear and I don’t understand how I can make an earning under these circumstances. AIADMK’s, BJP (more powerful in North India) and Hindu fanatics are everywhere.
I am not satisfied that there is any Convention-related reason why the Applicant could not re-locate to Mumbai (as he had previously done) and I do not accept that he has a genuine fear of suffering harm for a Convention-related reason in Mumbai.
In NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Branson J, with whom North J agreed on this point, said at [22]-[23]:
22. … However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The Tribunal did not, as the passage from Randhawa set out in [16] above requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji. This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji. …
23. … The Tribunal appreciated that it was required to consider the ‘internal flight alternative’, and that for that purpose it was required to determine whether it would be unreasonable for the appellant to relocate within Fiji. However, I am satisfied that, because it misconceived the content of the requirement that it not be unreasonable for the appellant to relocate within Fiji, it did not ask itself the right questions before determining that it was not satisfied that the appellant is a person in respect of whom Australia owes protection obligations under the Convention. …
In the matter before me the Tribunal clearly did not apply the correct test set out in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 as it is further explained in NAIZ - that is whether the applicant could reasonably be expected to relocate in India. A throw-away line, which is what we appear to have here, is not sufficient.
But is the relocation finding so integral to the Tribunal decision that the Tribunal decision must fail? Can the Tribunal’s findings stand without the relocation finding?
Leaving aside the de facto relationship issue, which arose following the applicant’s arrival in Australia and is not relevant to this issue, the critical finding concerning the applicant’s fears in India are set out in the Tribunal’s reasons under the subheadings:
1. Statements relating to political activities …
2. Statements relating to reasons for jailing etc …
3. Delay in departing from India after obtaining his passport.
The Tribunal’s critical findings then are, firstly, the Tribunal did not believe that part of the applicant’s parents’ house was burnt down and his documents destroyed. The Tribunal was satisfied that the documentary evidence which the applicant claimed was destroyed by fire never existed. The Tribunal was satisfied the applicant was never a high profile office holder and therefore did not come to the adverse attention of the authorities on this account.
The Tribunal was satisfied that the applicant was never arrested in India on account of his political activities and therefore was never mistreated in jail as he claimed. It was also satisfied that no member of his family had suffered serious harm amounting to persecution and it did not believe that the applicant spearheaded an election campaign or therefore came to the attention of opposing political parties or the police.
On the other hand the Tribunal said in its reasons at Court Book page 154:
After careful examination of all the evidence before me relating to: (1) the lack of substantiating documentary evidence or a plausible reason for this; (2) the inconsistencies and the implausibilities in the Applicant’s evidence relating to his alleged political activities and the reasons for his alleged jailing (twice); (3) the lack of a satisfactory reason for his delay in departing India as soon as possible after legally obtaining his passport; (4) the unsatisfactory reason given by him for his inability to relocate to Mumbai; and (5) the recently enunciated personal reasons for his wish to remain in Australia, I am satisfied that the Applicant’s claims for refugee status are a complete fabrication and without foundation.
The Tribunal then went on to find that it was satisfied that he had never suffered persecution in India and does not have a genuine fear of suffering persecution in India for a Convention-related reason.
Was the flawed relocation finding integral to the Tribunal’s conclusion? In my view despite the passage that I have just quoted from the Tribunal’s findings, the conclusions were in no way dependent on its finding on relocation. The Tribunal had already found that the applicant did not have a well-founded fear of persecution for a Convention reason in his home area. Relocation was not a fundamental element in reaching this conclusion. Indeed, it played no part in it. In view of its other reasons and conclusions the Tribunal really had no need to consider relocation. The flawed consideration of relocation therefore is not fatal to the decision.
Conclusions
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent the Tribunal formed an adverse view about the credibility of the claims being made by the applicant. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 findings on credibility are the function of the decision maker par excellence. The Tribunal’s credibility findings were open to it and no error is demonstrated in its conclusions (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547).
In my view, the findings made by the Tribunal were reasonably open to it on the material before it. I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
The application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Zhan Chiam
Date: 5 August 2005
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