SZFKL v Minister for Immigration - [2005] FMCA 564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFKL v MINISTER FOR IMMIGRATION

[2005] FMCA 564

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958

Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407

Applicant:

SZFKL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG39 of 2005

Judgment of:

Barnes FM

Hearing date:

26 April 2005

Delivered at:

Sydney

Delivered on:

26 April 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG39 of 2005

SZFKL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 December 2001 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of India, arrived in Australia on 20 July 1999. On 3 September 1999 he applied for a protection visa. The application was refused and he sought review by the Tribunal. The Tribunal held a hearing on 15 November 2001.
The applicant claimed to fear persecution for reason of his membership of a particular social group in India. He claimed to be a Chammar, a member of the low caste Harijans or Dalits. He claimed to have been involved in a series of disputes in his local village and surrounding area with higher caste Jats and that his life was in danger from them and from the local police who belonged to that community and that he could not re-locate anywhere else in India. He provided a written statement in connection with his protection visa application setting out such claims and a statement in the form of a submission was provided to the Tribunal. The applicant also gave oral evidence in the Tribunal hearing. This is summarised in the Tribunal reasons for decision which is the only evidence before the court of what occurred in the Tribunal hearing.
The Tribunal reasons record a number of instances during the hearing when the applicant altered or modified his earlier claims. The Tribunal found that the applicant was not credible. It accepted that he had, as claimed, had a long-running dispute with his neighbours about his land and that over a number of years, his neighbours had put pressure on him to sell the land to them. It noted that those who belong to the Dalit caste are subjected to widespread discrimination and may face serious harm. However it was not satisfied on the evidence before it that the applicant was in fact a Dalit.
The Tribunal had regard to the inconsistency of the applicant's claimed circumstances and personal history (including his claim of 10 years education and inheritance of land from his father who, in turn, inherited it from his father) with independent country information concerning the position of Dalits in Indian society. It had regard to the possibility that the applicant's particular circumstances could be an exception to the general information about the poor social position of Dalits, who generally do not own land and are illiterate, but went on to have regard to concerns about the reliability and credibility of aspects of the applicant's evidence including an absence of claims of other kinds of significant discrimination and social ostracisms such as Dalits encounter. The manner in which the applicant gave oral evidence was found not to suggest that his own experiences encompassed the kind of social discrimination which might reasonably have been expected. The Tribunal stated that the manner in which the applicant gave his oral evidence showed a propensity to shift and alter his evidence as he went along and in ways which suited his purposes.
The Tribunal discussed other numerous inconsistencies in the applicant's evidence and changes in his claims over time, in particular as to where he had lived and whether he had lived elsewhere in India apart from his village. It found his evidence vague in that respect and that there were unconvincing aspects of certain parts of his claims. For the first time at the hearing the applicant raised a claim that his wife had been brutally raped and murdered in April/May 2001. The Tribunal found he was unable to explain in any meaningful way why this claim had not previously been brought to its attention given its significance. Further in his 1999 application for a protection visa, which the applicant had indicated was true and correct, he stated that he was a widower. The Tribunal also found it implausible that the applicant’s neighbours would wait two years to exact revenge against him by raping and murdering his wife because he sold his land to another person.
In light of these matters and other inconsistencies and implausibilities in the written claims and the oral claims, the Tribunal did not accept that the applicant belonged to the Dalit caste and that as a result he has suffered mistreatment at the hands of his neighbours, the police or the local community because of his caste. It did not accept his claim that he was pursued out of revenge or that his wife was raped and murdered as claimed.
The Tribunal accepted that the applicant may have been physically harassed by both his neighbours and the police over a land dispute but concluded that this was not motivated by any Convention reason. Nor was there any real chance of it recurring in future given that the applicant's land had been sold.
The applicant sought review of the Tribunal decision by application filed in this court on 6 January 2005. The application raises four general unparticularised grounds and no written submissions were filed. The applicant claimed first, that the Migration Act 1958 (C’th) was not properly observed. He gave no particulars of this claim. There is nothing in the material before me to support such a claim. Nor is there anything to support the unparticularised claims that the decision made was an error of law or was otherwise contrary to the definition of Refugees Convention. I take this to be a claim that the decision involved an error of law. No such error is established, nor is there anything to support the claim that the decision was made with a pre-set mind.
In oral submissions the applicant raised a number of issues. He claimed first that he had told his agent full details of his claims, in particular in relation to the treatment of his wife (in 2001) and contended that the agent had not mentioned this to the Department or Tribunal. Hence he claimed that the Tribunal erred in saying that he had not mentioned these claims. There are a number of difficulties with this claim. First, insofar as the applicant complains of the conduct of his agent, that does not establish a jurisdictional error by the Tribunal. Moreover the applicant signed and confirmed that the 1999 protection visa application which described him as a widower was true and correct.
From the only evidence of what occurred in the Tribunal hearing that is before the court it is apparent that the Tribunal asked the applicant why he had not made any mention of his wife's death to the Tribunal before the hearing and that the applicant replied, consistent with what he says today, that he had told his adviser who had asked him to provide some verification of his wife's death such as a newspaper cutting or letter. However, importantly, at the end of the hearing the applicant was informed that he would be given additional time to provide any information relevant to the issue of why the death of his wife had not been made known to the Tribunal before the hearing. Thus the Tribunal gave the applicant the opportunity to further address this claim and its concerns in that respect. However the Tribunal records that it received nothing further from the applicant or his adviser. In these circumstances the complaint the applicant makes about the conduct of his agent does not establish a jurisdictional error.
The applicant complained generally about the conduct of the hearing claiming that he wanted to say certain things which were ignored and other things were asked instead. There is no evidentiary basis for such a claim. There is no transcript of the hearing before the court. Despite the fact that in the directions hearing on 17 January 2005 the applicant was ordered to file and serve any affidavit containing additional evidence relied upon including any transcript of a Tribunal hearing by 28 February 2005, he has not done so. There is nothing in the Tribunal reasons for decision to suggest that there is any reason for concern with the manner in which the Tribunal hearing was conducted.
Indeed while the applicant was given more time to address a specific issue, he could have taken the opportunity if he did feel that he had matters that had not been canvassed with the Tribunal to put such matters before the Tribunal in a post-hearing submission.
The applicant also took issue with the merits of the Tribunal decision, disagreeing with its conclusions on particular issues. Such claims do not establish jurisdictional error. The findings of the Tribunal in relation to the situation in India and the position of Dalits were open to it on the material before it including the independent country information to which it referred.
The applicant suggested that he told the Tribunal to make its own independent inquiries about the death of his wife. There is nothing in the reasons for decision to suggest that this occurred. It is contrary to the Tribunal account that the applicant was given time to provide further information and this is not a case in which I am satisfied that the Tribunal either undertook or was under an obligation to make further inquiries in the manner contended. The applicant was unsuccessful because of the view the Tribunal took of the facts, in particular, its finding that he was not credible and that his essential claims were untrue. Such findings are matters of fact for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407 at [67] per McHugh J. The Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave and no error is demonstrated in its conclusions or in its procedures. As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he meet the respondent's costs of these proceedings. There is nothing in the material before me to warrant a departure from the ordinary rule that the unsuccessful applicant should meet the costs of the respondent. The amount of $4000 which is sought is appropriate in the light of the nature of this and other similar matters.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: