SZEYX v Minister for Immigration - [2005] FMCA 1627

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYX v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1627

MIGRATION – RRT decision – Indian claiming persecution for political activities – disbelieved by Tribunal – no error found.

Migration Act 1958 (Cth), ss.420(2)(b), 424A(1), 424A(3)(a), 474(1), 483A, Pt.8

Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Re Minister for Immigration & Multicultural Affairs & Anor; Ex Parte Eshetu & Anor (1999) 197 CLR 611

Applicant:

SZEYX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2324 of 2004

Judgment of:

Smith FM

Hearing dates:

5 October 2005, 31 October 2005

Delivered at:

Sydney

Delivered on:

31 October 2005

REPRESENTATION

Counsel for the Applicant:

Mr C Jayawardena

Solicitors for the Applicant:

Chandra Jayawardena Solicitor

Counsel for the First Respondent:

Ms S McNaughton

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,000 in addition to the amount ordered on 5 October 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2324 of 2004

SZEYX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 June 2004 and handed down on 29 June 2004. The Tribunal affirmed a decision of the delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”, but is subject to limitations under Pt.8 of the Migration Act. The limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant should be believed in his claims to be a refugee, nor whether he qualifies for a protection visa.
In the present case the applicant arrived in Australia in August 2002 on a three month visitor’s visa. When interviewed at the airport he told immigration officials that he had come to Australia for a holiday and was staying for about 10 to 12 days.
On 27 September 2002, the applicant applied for a protection visa assisted by an agent, Mr Anil Agnihotri. In his application he indicated that he was a 23‑year‑old student from India who spoke, read and wrote Hindi and English. He indicated he had been educated at a university in Harayana. A brief typed statement attached to his application referred to his living in the state of Harayana, and said he had been a member of “Bal Vikas Party, a movement which is dynamically taking part in local religious events and fighting for the rights and privileges of Hindus”. The applicant said:
Six months ago, during the election campaign of Member of Parliament there were clashes between ruling party i.e. Bal Vikas Party and rival party that was Congress Party.
He said that he had been the district youth president of the Bal Vikas Party and campaigned for that party’s candidate. He said:
I arranged to arrest the main campaigning leader along with their workers with the help of the police as they were the main culprits for clashes.
…
The problem actually started when the results of elections came and unfortunately our party lost the election and Congress Party came into power.
The local leaders and the supporters of the Congress Party started harassing the supporters of Bal Vikas Party especially me because they wanted to take the revenge as I sent them to police custody during election campaign.
Due to this reason Congress Party started fabricating false cases against me and my whole family is being harassed for no fault.
I have been instigated under false case and torturing just because being the District youth president of Bal Vikas Party.
There is a lot of political pressure from the Congress Party to arrest and torture the supporters for which myself and whole family is being made as victims for no fault.
I experienced mistreatment by the Congress Party supporters, which actually is against humanity.
I am being picked up at odd hours of the night by police and was taken to the police station and interrogated with no respect for no fault of mine. Anything wrong against anyone except bearing political opinion, which is opposing the present government.
…
Now, if I go back to India I will be arrested under under false cases by the police under the instructions of the Congress Party.
A delegate refused the application on 17 February 2003, and the applicant appealed to the Refugee Review Tribunal on 12 March 2003 assisted by his agent. In his review application, he repeated his claims in an abbreviated form.
The applicant attended a hearing before the Tribunal on 11 May 2004 and a transcript is in evidence before me. There is no doubt that the applicant gave a most confused account of what had happened to him in India. There is also no doubt that he repeatedly identified the date of the election as being in 2002. There were also clear conflicts in what he said, in particular as to when he had been falsely charged with theft after an incident in a university hostel.
Following the hearing, the Tribunal invited the applicant to comment in writing on country information which showed that no elections were held in Harayana in 2002. The last election prior to his departure had been held in 2000, when a party with a name similar to “Bal Vikas” gained only 0.24% of the vote. The Tribunal put to the applicant that he could not have experienced problems because of his role campaigning for a Bal Vikas party candidate in 2002, and that it was difficult to accept that the Congress Party, or anyone else, would be greatly concerned about his political activities for that party.
The letter inviting the applicant to comment was sent to the address given by the applicant to the Tribunal, but it subsequently became aware that the applicant had given it an incorrect address. The Tribunal said:
On my instructions a Tribunal officer telephoned [the applicant] and read him the letter dated 11 May 2004 and asked for his comments. [The applicant] said that he may have been confused at the hearing because he was nervous. He said that the elections he had worked on had been held in 2000, not 2002, but all the other details in his application were correct. [The applicant] was asked if he wanted to make a written submission on the matters raised in the letter. He said that he did not.
The Tribunal’s reasons for affirming the delegate’s decision were brief (paragraph numbering added):
[1]I did not find [the applicant] to be a truthful or a credible witness.
[2]First and most importantly, in his written submission and at the hearing he said that most of his problems were caused by his involvement in elections held in Harayana in 2002. No elections were held in Harayana that year. When this was pointed out to [the applicant], he said that he had been confused at the hearing and the elections he had been involved in had been held in 2000. I do not accept this explanation. [The applicant] first said that the elections were held in 2002 in his written submission to the Department. Furthermore, the timing of the elections and other events was discussed at some length at the hearing and he stated a number of times that they were held in 2002. I do not believe that he would have been unable to recall whether his problems had begun a few months before he left Bangladesh or more than two years before his departure, particularly as these events were so recent. I believe that he was confused about the date of the elections because his claims were concocted and he was never involved in politics in India.
[3]In addition to this problem, which would be sufficient by itself for me to reject [the applicant’s] claims, there were other problems with his evidence.
•He said nothing about going to Uttah Pradesh in his first statement, then gave three different accounts of when he had gone during the hearing.
•He had clearly forgotten the claim regarding the false charges against him made in his initial statement until I reminded him of it at the hearing.
•I find the claim that he was pursued to a distant city by members of the Congress Party simply because he had campaigned for an unsuccessful candidate far‑fetched and implausible.
[4]After considering all of the evidence, I do not accept that [the applicant] was involved in politics in Harayana, or that he had any problems for reasons of political opinion prior to his departure from India or that he fears that he will be persecuted for reasons of political opinion or any other Convention reason if he returns to India now. I am therefore not satisfied that he has a well‑founded fear of persecution for any of the reasons contained in the Convention.
The application filed in this Court on 23 July 2004 was returnable before a Registrar on 26 October 2004. A barrister, Mr Ashok Kumar, appeared for the applicant on a direct client basis, and agreed to directions setting a timetable for an amended application and listing the matter for hearing. Mr Kumar gave an undertaking to the Court to provide a copy of the orders to the applicant, and that he would notify the Court “if he is unable to appear on behalf of the applicant at the hearing”.
According to evidence given by the applicant in support of an adjournment application he made at the appointed hearing on 5 October 2005, Mr Kumar met the applicant several times and prepared an amended application which was filed on 14 February 2005. The amended application contains several aspects which cause me concern if it was prepared by a legal practitioner, particularly due to the inclusion of particulars which plainly have no bearing on this particular decision of the Tribunal and due to an embarrassing multitude of other grounds lacking any apparent merit. However, there is no need for me to address these grounds, because no reliance was made upon them by the representative for the applicant who appeared today.
On 7 September 2005, Mr Kumar forwarded to the Court an unsigned letter with the same date saying:
I refer to the above matter. I have had no contact with the client since beginning of the year and had no instructions since that time. I have not been able to contact the client recently.
I do not have any further instructions as to the status of the matter, I do not consider to myself to be instructed to appear in the matter and I would not be appearing for the Applicant. The Applicant, however, is to be assumed to be proceeding nevertheless unless you hear to the contrary.
At the hearing on 5 October 2005, the applicant appeared with a new legal representative, Mr Jayawardena, who applied for an adjournment on the basis that he had been instructed only in recent days. The applicant gave evidence in support of the adjournment application under oath, and a transcript of his evidence is available. In short, he claimed to have been in contact with Mr Kumar and to have been surprised in recent days to receive a copy of Mr Kumar’s letter to the Court. No evidence from Mr Kumar was presented by Mr Jayawardena. I granted the adjournment. The circumstances in which it became necessary raised a concern about Mr Kumar, but I make no findings about this since he has not been given an opportunity to explain his conduct.
Mr Jayawardena filed an amended application on 24 October 2005, and addressed the four grounds contained in it.
Ground 1 states:
(1)The Tribunal committed a serious ‘jurisdictional error’ by its failure to act according to ‘substantial justice’ & ‘the merits of the case’ as required by the provisions of Sec. 420(1)(b)of the Migration Act by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly:
Particulars – Court Book
Page 091 – Para 06
“I do not accept that [the applicant] was involved in politics in Harayana, or that he had any problems for reasons of political opinion prior to his departure from India or that he fears that he will be persecuted for reasons of political opinion or any other Convention reason if he returns to India now”.
Applicant’s Comments:
The Applicant submits that the Tribunal failed to evaluate the Applicant’s claims as per the above statutory provision because of the complete denial of any reasonable consideration to the said documentary evidence or the oral evidence given by the Applicant before and during the hearing. The Applicant submits that according to the Convention criteria, the Tribunal failed to grant the Applicant with ‘benefit of doubt’ in relation to a mistake that was made unwittingly.
The premise of this ground, that s.420(2)(b) of the Migration Act gives rise to substantial requirements on the Tribunal as to its reasoning, is misconceived (see Re Minister for Immigration & Multicultural Affairs & Anor; Ex Parte Eshetu & Anor (1999) 197 CLR 611 at [49], [74‑77] and [108].
Moreover, I reject the proposition that the Tribunal failed to evaluate the applicant’s claims, whether in his written statement (the only documentary evidence presented by the applicant) or his oral evidence. It was the task of the Tribunal to decide whether his claims should be believed and it did not believe them.
The Tribunal had no doubts when disbelieving the applicant, and it was not required further to address the “real chance test” in relation to his claimed history (see Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220).
I can find no jurisdictional error in its reasoning.
Ground 2 states:
(2)The Tribunal was Wednesbury Unreasonable due to the following conclusion and holding that against the Applicant to refuse his claims as they are unreliable or not credible:
Particulars – Court Book
Page 091 – Para 01
“I do not believe that he would have been unable to recall whether his problems had begun a few months before he left Bangladesh or more than two years before his departure, particularly as these events were so recent. I believe that he was confused about the date of the elections because his claims were concocted and he was never involved in politics in India”.
Applicant’s Comments:
The Applicant submits that it was true that he got confused when the Tribunal kept on disbelieving the Applicant by vehemently rejecting his claim that the ‘false charge for theft of money’ occurred in the University Hostel at [University] in Uttar Pradesh, but the Tribunal kept on believing that the Applicant was lying, despite the proceedings of the hearing would confirm otherwise.
I have read the transcript of the hearing and, in my opinion, it was well open to the Tribunal to form the view that the applicant was confused about various aspects of his evidence “because his claims were concocted and he was never involved in politics in India”. In my opinion, there was nothing “Wednesbury Unreasonable” about its credibility finding.
Ground 3 states:
(3)The Tribunal was denied procedural fairness by concluding to the effect:
Particulars – Court Book
Page 091 – Para 04
“He had clearly forgotten the claim regarding the false charges against him made in his initial statement until I reminded him of it at the hearing”.
Applicant’s Comments:
The Applicant submits that at the beginning of the hearing (Applicant’s Affidavit – Transcript of proceedings – page 03, para 03) the Tribunal told him that it had read the Applicant’s statement and that the Tribunal will question the Applicant on the information given in those statements. Therefore the Tribunal cannot put the entire blame on the Applicant who had no authority [to] narrate anything of his own, unless answering the questions put to him by the Tribunal.
The applicant’s original written statement and his oral evidence referred obscurely at several points to false cases being brought against him. As I have indicated, there was clear inconsistency in relation to his claims concerning a charge of theft in relation to his residence in a university hostel.
In his visa application, a false case was also referred to as having occurred as a consequence of the applicant’s involvement in the arrest of a Congress Party campaigning leader. I consider that the Tribunal’s second dot point in [3] above should be understood to be a reference to that claim, and to the Tribunal’s raising of that matter with the applicant at pp.22‑23 of the transcript. This was almost at the end of the hearing, when the Tribunal put to the applicant:
Q. Why haven’t you mentioned this until now, today? Why have you forgotten about it?
A. Because I am little confused at this stage. Anybody else, if he would have been at my place, he would have forgotten like me.
I can find no denial of procedural fairness in the Tribunal’s questioning of the applicant in relation to this matter, nor in its reference to this part of his evidence as a subordinate finding in relation to its credibility finding.
Mr Jayawardena, in his oral submissions to me today, sought to draw strength for this ground from a contention that the applicant had been improperly required by the Tribunal to give his evidence in English. However, I do not read the transcript as revealing this at all. It is clear that a Hindi interpreter was in attendance at the hearing, and the transcript at pp.4‑5 indicates that the hearing commenced with the use of the interpreter, but that the applicant proceeded to respond in English. The Tribunal allowed the hearing to continue with the applicant using that language directly. However, the Tribunal informed the applicant that he could make use of the interpreter if he wished. In my opinion, it is plain that the applicant consented to the hearing proceeding in the manner now complained of.
Ground 4 states:
(4)The Tribunal failed to evaluate that it had ‘no substantial doubt’ that the Applicant has any ‘real chance’ of facing persecution as per Sec. 91R(a) if returned to India:
Particulars – Court Book
Page 091 – Para 06
“I am therefore not satisfied that he has a well‑founded fear of persecution for any of the reasons contained in the Convention”
Applicant’s Comments:
The Applicant submits that the Tribunal used a wrong yardstick to assess serious harm or any future threat to his life, which is a jurisdictional error. The Applicant submits that the failure to assess the Applicant’s claims properly by the Tribunal had caused him a serious unfairness to his refugee claims in Australia.
As elucidated by Mr Jayawardena in his oral submissions, the complaint made under this ground was that the Tribunal failed to address whether the applicant would receive effective protection from the state authorities if he returned to India.
However, in my opinion it is plain that the Tribunal arrived at a conclusion about the applicant’s claimed history by rejecting its credibility. It was therefore not satisfied that the applicant had in the past suffered any harm for which he would have needed protection. Given the path of the Tribunal’s reasoning, it was not necessary for it to address questions of future state protection further.
As well as maintaining the above grounds, Mr Jayawardena made a number of subordinate arguments in the course of his submissions, many of which I did not understand. However, he did not seek to amend the application to raise any additional ground, and I consider that I have sufficiently addressed all the grounds raised by the amended application.

Similarly, I do not consider it necessary further to address all the points made in his written outline of submissions. I do note, however, that it contains a number of points plainly lacking in substance. For example, it is contended that the Tribunal made an error when making a finding that “it is reasonable to expect the Applicant to relocate within India”. However, no such finding is found in the reasons of this Tribunal.
There is also a submission that the Tribunal failed to comply with the obligations of s.424A(1). This assertion does not find any recognition in the grounds of the amended application. Moreover, I accept the submissions of counsel for the Minister that the material referred to, being general country information concerning elections in India, was not required to be the subject of a written invitation (see s.424A(3)(a)). In any event, the Tribunal did put the substance of the information to the applicant in writing and gave him an opportunity to make submissions, which he declined.
Most astonishing is the final submission made in the applicant’s written submission:
The Applicant submits that the Tribunal failed to consider whether there was any truth about the persecution suffered by the Applicant. (applicant’s emphasis)
Manifestly, the Tribunal did consider that matter, and decided against the applicant by disbelieving the truth of his claimed history of persecution.
For the above reasons I have not been persuaded that the decision of the Tribunal is affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred by s.474(1), and I dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 14 November 2005