SZGET v Minister for Immigration
[2007] FMCA 836
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGET v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 836 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
| Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Craig v South Australia (1994) 184 CLR 163 Kalala v Minister for Immigration [2001] FCA 1594 Kamal v Minister for Immigration [2002] FCA 818 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Lu v Minister for Immigration (2005) FCAFC 340 Minister for Immigration & Multicultural Affairs, Ex Parte Durairajasingham (1999) 168 ALR 407 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration (No.2) [2004] FCAFC 263 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 Sellamuthu v Minister for Immigration (1999) 90 FCR 287 SZFAS v Minister for Immigration [2006] FMCA 1029 SZCRI v Minister for Immigration [2006] FMCA 917 SZEEU v Minister for Immigration [2006] FCAFC 2 WAJR v Minister for Immigration [2004] FCA 106 |
| Applicant: | SZGET |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2318 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 February 2007 |
| Delivered at: | Sydney |
| Date of last submissions: | 5 March 2007 |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar on a direct access basis |
| Counsel for the First Respondent: | Mr M Cleary |
| Solicitors for the First Respondent: | Ms G Broderick of Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 21 August 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2318 of 2006
| SZGET |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGET”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
21 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 June 2006, affirming a decision of the delegate of the first respondent made on 26 November 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the first respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) I dispensed with a hearing under r.44.12 of the Rules and set the matter down for a final hearing.
The applicant filed an affidavit affirmed on 17 February 2007 (“affidavit of the applicant”). Attached to that affidavit is a transcript of the Tribunal hearing of 16 May 2006.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed on 3 October 2006 and is marked Exhibit “A”. It was read into evidence.
Background
The Tribunal decision of Ms A Younes, reference 060298237, provides the following background information:
The applicant, who claims to be a citizen of India, arrived in Australia on 8 June 2004 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 8 July 2004. The delegate decided to refuse to grant the visa on 26 November 2004 and notified the applicant of the decision and his review rights by letter dated 26 November 2004 and posted on 26 November 2004. The applicant applied to the Tribunal on 2 January 2005 for review of the delegate’s decision. On 28 February 2005, the Tribunal constituted by a different Member, affirmed the decision not to grant a protection visa. Subsequently, the applicant sought judicial review of the Tribunal’s decision and on 3 March 2006, the Court remitted the matter to the Tribunal for redetermination according to law.(CB 106)
Applicant’s claims
The first respondent’s written submissions, prepared by Mr Cleary summarises the applicant’s claims. I adopt paragraphs 11 to 14 of those submissions for the purposes of this judgment:
11.In his protection visa application the applicant, an Indian Sikh, claimed to have been a member of the Khalistan Organisation, a religious organisation calling for a separate homeland. He claimed that for this reason the Punjab Police harassed and persecuted him. He claimed if he returns he will be killed (by the police) or put behind bars forever (CB 26-27).
12.The applicant also claimed that in August 2002 he (and his brother) were arrested and tortured by police and he was detained for 10 days (CB 26-27).
Claims at the Tribunal hearing on 16 May 2006
13.At the Tribunal hearing on 16 May 2006 the applicant made different claims. He claimed (CB 109-112):
a.the Khalistan movement (known as the Khalistan Barbar Khalsa (“KBK”) became active in 1984 and since then Sikhs have been persecuted;
b.he was asked to join the KBK and to be its president but refused;
c.he was never involved in any political party in India;
d.the KBK were after him;
e.he was arrested in 1984, being the only time he was arrested, and charged with “demanding the liberation of Khalistan”, beaten and detained for a week;
f.in 1997 he changed his name and cut his hair and left his home in order to avoid detection;
g.he has memory problems (but did not adduce any evidence of those problems); and
h.from 1985 to 2004 the Punjab Police harassed his family, but the Police were not able to find or arrest him during this period.
14.During the hearing on 16 May the applicant indicated he wanted to provide further information in support of his claims. The Tribunal indicated that the Tribunal would consider sending him a letter advising him of concerns about his evidence in view of the contents of his visa application, to enable the applicant to respond in writing to that material.
Tribunal’s findings and reasons
I also rely upon the written submissions prepared by Mr Cleary, summarising the Tribunal decision. I reproduce paragraphs 15 to 20 of those submissions for the purposes of this judgment:
15.The Tribunal reviewed the applicable law in unobjectionable term. It then set out the applicant’s claims and evidence.
16.The Tribunal did not accept the applicant to be a credible witness. The Tribunal found the applicant fabricated the substance of his claims. Of particular concern was the fact that at the hearing the applicant gave evidence he was never involved in any political activities in India (CB 115.3).
17.The Tribunal highlighted the inconsistencies in the evidence and claims made by the applicant. The following key inconsistencies were cited by the Tribunal in reaching the conclusion that the applicant’s claims were not credible:
a.at the hearing the applicant claimed the KBK had offered him the post of president and that they were after him. However, in the applicant’s protection visa application he never mentioned the KBK or being offered a presidential post (CB 116.1);
b.in the applicant’s protection visa he claimed to be a member of the Khalistan Organisation. However, at the hearing the applicant claimed he was never involved in any political party (CB 116.3);
c.at the hearing the applicant claimed he was arrested for an offence in 1985. However, in his protection visa application the applicant made no mention of being charged with “demanding liberation of Khalistan” (CB 117.2); and
d.at the hearing the applicant gave evidence he changed his name in order to avoid being found. However, in his protection visa application the applicant made no mention of his name change in 1997 (CB 117.8).
18.The inconsistencies in the applicant’s evidence were put to the applicant in a s424A letter after the hearing (CB 88-91). The applicant, though an agent, responded to the s424A letter in writing on 27 June 2006 prior to the Tribunal coming to its decision on 30 June 2006 (CB 99-101).
19.In coming to its conclusions the Tribunal examined the claims made by the applicant, the independent country information; the evidence given at the hearing and the response provided by the applicant’s agent to the s424A letter sent on 19 May 2006.
20.The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason (CB 118.8).
Application for review of the Tribunal’s decision
On 21 August 2006, the applicant filed an application for review under s.39B of the Judiciary Act, which contained three grounds of review:
1.That the Tribunal exceeded its jurisdiction when it said “Whilst the Tribunal as being plausible that Sikhs can be ill-treated in India without more means that the applicant has, the Tribunal satisfied that he would not be persecuted due to his political opinion imputed.”
2.The Tribunal erred in law due to its credibility attack on the applicant stating, “The Tribunal is not satisfied that the applicant is credible and given the adverse credibility finding.”
3.The Tribunal was seriously unfair towards the applicant because of its conclusion that “On the basis of evidence as a whole, the applicant has not feared any harm Convention related.” (copied without alteration or correction)
At the first Court date of 20 September 2006, the applicant was granted leave to file an amended application by 9 November 2006 giving complete particulars of each ground of review relied upon. This order was not complied with. At the commencement of the hearing, counsel for the applicant, Mr Kumar, indicated that he had filed written submissions with four grounds of review which differed from the original pleaded grounds. I said that I would permit him to proceed with submissions on the understanding that he would be required to file a formal amended application containing the four new grounds. I also allowed Mr Cleary to raise any objections, should the amended application contain any variations. The hearing proceeded on that basis.
On 5 March 2007, an amended application was filed which contained the following grounds:
1.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that: Refugee Tribunal’s did not comply with section 424A of the Migration Act 1958
Particulars
i.The Tribunal proceeded to make the decision without the applicant given opportunity to comment on information (the letter at CB 88-91 not provided the applicant to comment on the evidence ‘cumulatively’ (at CB 117.9) and in particular aspects of earlier decision adopted by the Tribunal but only aspects of the earlier proceeding, the applicant submitting that the duty was not discharged by the above section 424A letter;
ii.failure to give relevant information such as document considered (at CB 113.8-114.4) which the applicant submits is not excluded by the section;
iii. the Tribunal was bound to give the applicant ‘information’ on what searches it had carried out rather than in relation to ‘Khalistan Organisation’ (basis for its non-existence) rather than simply putting it to the applicant at the hearing as to the non-existence of this organization.
2.The Tribunal failed to apply the correct test in its assessment of the evidence in making of its decision and has failed to “What if I am Wrong?” test and Rajalingam principles [MIMA v Rajalingam (1999) 93 FCR 220; [1999] FCA 719] in the assessment of the evidence.
Particulars
a.The Tribunal proceeded to make the decision without giving the consideration of the Rajalingam principles alleged to have taken place instead choosing to apply ordinary civil standards or assessment of evidence;
b.The Tribunal proceeded to make reject the evidence in relation to the harm alleged by the applicant.
3.The Tribunal erred in finding the alleged activities do not fall under Convention-related harm (at CB 118.8) and thus failed to consider Convention related harm. In doing so it failed to consider the facts whether there was an issue of imputed political opinion in the applicant refusing to take a course of action or taking in a particular course of action.
Particulars
a.The Tribunal proceeded to make the decision on the basis that there was no Convention related issue (at CB 118.8) to consider erring in the need to still consider whether there was effective State protection nevertheless;
b.The Tribunal adopted an unduly narrow approach to the Convention reason. The Applicant submits that “…but the Applicant said that he did not want to join that…” in relation to Khalistan Barbar Khalsa (at CB 116.2) can amount to a political statement (or an imputed political statement:). A refusal to do something is same as actively taking part in can both amount to a political statement. Therefore, the Tribunal erred in finding that there was no Convention-reason. Avoidance of such arm amounts to imputed political opinion (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; Canada (Attorney-General) v Ward (1993) 2 SCR 689).
Submissions and reasons
In respect of the first ground, Mr Kumar submits the Tribunal sent a letter to the applicant on 19 May 2006 pursuant to s.424A, seeking comment from the applicant.(CB 88-91) However, the Tribunal did not enclose certain documents which formed part of the review. The Tribunal sought the applicant’s comments on information relating to document fraud:
The Tribunal reiterates that upon consideration of the evidence as a whole, the Tribunal may not be satisfied that any document you provide is genuine and/or contains truthful and accurate information.(CB 91.4)
Mr Kumar submits that the Tribunal failed to provide the information which it referred to in the letter. He argues that the Tribunal is required to give complete information and address the substance of the material: Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72. Although the Tribunal referred to the information, it did not provide the document which forms part of the information, and thus fell into jurisdictional error.
The applicant’s migration agent wrote to the Tribunal on 27 June 2006.(CB 99-101) The agent put to the Tribunal a submission in respect of its use of country information which was not provided to the applicant:
The Applicant submit the subsequent Case reference and other information sighted by the Tribunal in connection with the documents to be submitted by the Applicant was serious procedural unfairness caused by the Tribunal towards the Applicants Claims. Therefore the Applicant submits that the Tribunal has violated the procedural fairness with regards to Applicants Claims for Refugee.(CB 101)
Mr Kumar submits that the Tribunal made its decision without having regard to the “procedural unfairness” issue raised by the migration agent and without providing any details of the documents other than as quoted by the Tribunal in its s.424A letter.
Mr Cleary submits Mr Kumar’s argument is without merit for a number of reasons. First, that Applicant VEAL of 2002 was concerned with the common law natural justice rule in existence prior to the introduction of s.422B to the Act on 4 July 2002. The effect of that introduction was the exclusion of any common law procedural fairness requirement: WAJR v Minister for Immigration [2004] FCA 106 per French J; SZCRI v Minister for Immigration [2006] FMCA 917 at [19] – [23].
Mr Cleary submits that the only procedural fairness requirement the Tribunal was obliged to follow were those contained in the Act, namely s.424A. However, independent country information about document fraud in India was excluded from the obligation in s.424A(1) by the exception in s.424A(3)(b). Mr Cleary submits that as there was no obligation on the Tribunal to put this information to the applicant, it did not commit jurisdictional error as claimed in the first ground.
Mr Kumar’s argument is substantially similar to that in SZCRI & Ors v Minister for Immigration & Anor [2006] FMCA 917 and Driver FM addressed the issue in some detail: at [19]-[23]. In this matter, the application for review to the Tribunal was filed on 2 January 2005, well after the introduction of s.422B to the Act, and similar to the Tribunal application filing date in SZCRI & Ors. I follow the reasoning in SZCRI & Ors and agree that the Tribunal was under no obligation to provide the applicant with full country reports. This ground cannot be sustained.
Further in respect of the first ground, Mr Kumar submits that the Tribunal erred in relying on the findings of the earlier Tribunal decision in relation to the same applicant and handed down on 23 March 2005. Mr Kumar submits that in the course of that hearing, the member said the following to the applicant:
Member: I put it to you that you are changing your story because the previous member had clearly pointed out in his decision the discrepancies that I am discussing with you.(Transcript of tribunal hearing, p.18.1)
Mr Kumar submits that it is not clear what the member meant by this comment, and a s.424A letter was never sent by the Tribunal to the applicant after this hearing.
Mr Kumar submits that this case is analogous to the reasoning in SZFAS v Minister for Immigration [2006] FMCA 1029 at [47] – [52] per Smith FM, in particular, at [50] and [51]:
50.In my opinion, the course of the Tribunal’s reasoning in these paragraphs shows it turning from a rejection of the applicant’s claimed prior history to address the future. I also consider it is probable that it has drawn upon its previous adverse finding on the history, when finding that the applicant would not be of any interest should he return to China. Certainly, in the language of Allsop J in SZEEU at [234]:
I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal.
51.In the present case, this becomes apparent in the further paragraph of the Tribunal’s reasons with the opening word "accordingly", where the Tribunal cements its adverse assessment of the applicant’s claims by concluding that they were all "recent inventions submitted for the sole purpose of enhancing his claim". In my opinion, the Tribunal’s reasons, reading them in as benign a fashion as possible, have drawn upon its opinion rejecting the applicant’s explanation for his waiting to leave China as part of its reasons for rejecting the credibility of his essential refugee claims.
Mr Kumar submits that the Tribunal referred to a “story”, an obvious reference to the information that was before the first Tribunal at its hearing. He submits that this suggests “recent inventions submitted for the sole purpose of enhancing his claim” as discussed in SZFAS at [51]. Mr Kumar argues that the information referred to by the Tribunal was information before the previous Tribunal, and that the failure to provide the applicant with an opportunity to comment on that information breaches s.424A of the Act.
Mr Cleary submits in his further written submissions that this ground cannot be sustained:
11a.The obligation is s424A(1) only applies to information that the “Tribunal considers would be the reasons, or part of the reason” for affirming the delegates decision: s424(1)(a).
b.The comment referred to by the applicant in his written submissions at paragraph 18 and 19 was no the “reason” nor did it “form part of the reason” for affirming the delegate’s decision, it was merely an exchange between the Tribunal Member and the applicant during the oral hearing.
c.In that circumstance the obligation in s424A(1) is not applicable.
d.Furthermore, the Tribunal does not commit jurisdictional error by referring to the content of the applicant’s evidence from the first constituted hearing before the Tribunal at the second hearing (or as part of the reason for the decision of that matter): see SZHUI v MIMIA [2006] FMCA 1042 at [61]. See also support for this proposition in SZBQS v Minister for Immigration [2005] FMCA 1066 at [14] and SZGNY v Minister for Immigration [2006] FMCA 1142 at [21].
SZHUI v Minister for Immigration [2006] FMCA 1042 at [62] clearly established the relevant principles:
62.The Minister does not dispute that the second Tribunal gained the information supporting the adverse credibility conclusion (about the applicant’s tardiness in seeking protection) from the evidence given by the first applicant to the first Tribunal. However, the Minister submits that this was information falling within the exception in s.424A(3)(b) of the Migration Act. There is support for that proposition in the decisions of this Court in SZBQS v Minister for Immigration [2005] FMCA 1066 at [14] and SZGNY v Minister for Immigration [2006] FMCA 1142 at [21] where Smith FM said:
In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]-[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
I am satisfied that these principles apply to the present matter and that the ground of review cannot be sustained.
Furthermore, I do not accept Mr Kumar’s interpretation of the word “story” which appears in the transcript of the Tribunal hearing at 18.1. The Tribunal member did discuss with the applicant his membership of the Khalistan Organisation:
TM:I have spent quite some time on the net and I am confident that there is no such thing. There are a number of Khalistan groups and I will tell you what they are and most countries classify them as being terrorist and militant organisation even if I find that you are a refugee you might be excluded from Australia’s protection on the basis of being involved in a terrorist organisation.
Interpreter: Yeah, I was a hardworking man. I wanted to live in peace, so I was – I didn’t want to have any association with these terrorist or militant groups at all.
TM:Why do you say in the statement that you were a member of the Khalistan Organisation?
Interpreter: That was typed wrongly.
TM:I doubt that very much. I put to you that subsequent to considering your claim you are changing your claims. The fundamental basis of your application is your alleged activities with the Khalistan Organisation which you now say you have never been involved in.(CB 16.2-16.5) (Transcript of Tribunal hearing, p.16.1)
Following this exchange, the discussion continued about how the applicant’s lawyer/migration agent prepared his visa application:
Interpreter: My lawyer filled out the form and I don’t know that there was a question such like that.
TM:What you seem to be doing is responding to inconsistencies merely by saying that your lawyer did so. Unless there is evidence before me, which there is not, that you lawyer’s character should be questioned its – well what you are alleging is a very serious allegation which is unsupported here. Mr [SZGET].
Interpreter: I told him the story and he was the one who had to type it up and what can I do if he didn’t fill it out? (CB 17.2-17.4)
Mr Kumar then referred to the following statement by the applicant:
TM:I put to you that you are changing your story because the previous member had clearly pointed out in his decision the discrepancies that I am discussing with you.
Interpreter: I think the lawyer filled out the form in a hurry so those questions were no asked, he never asked me those questions.
The second Tribunal hearing took place on Tuesday 16 May 2006. On 19 May 2006, the Tribunal sent a s.424A a letter to the applicant entitled “Invitation to Comment on Information”.(CB 88-91) The letter repeats the applicant’s statement in support of the protection visa application prepared by his lawyer. It then set out seven dot points which specifically addressed the issues ventilated at the hearing and referred to above. The letter complies with the requirements of s424A of the Act. The second particular of the first ground cannot be sustained.
In respect of the second ground, Mr Kumar submits that the process of evaluating evidence has been referred to in a number of cases: Minister for Immigration v Rajalingam (1999) 93 FCR 220; Kalala v Minister for Immigration [2001] FCA 1594; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; NABE v Minister for Immigration (No.2) [2004] FCAFC 263. Mr Kumar submits that it is uncertain what would happen to the applicant if he returned to India. He argues that the Tribunal applied the balance of probability test and not the “what if I am wrong?” test, as required in matters of this nature. Mr Kumar referred to Wu Shan Liang at 291 per Kirby J:
Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong"? (Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441 per Einfeld J) Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution.
Mr Kumar argues that the Tribunal had rejected the claims of the applicant based upon apparent inconsistencies, rather than applying the Rajalingam test. Mr Kumar further submits that the harm alleged by the applicant covers a considerable period of time and that the applicant stated that he had memory difficulties.(CB 110.3) Mr Kumar argues that the Tribunal was so certain that the alleged events did not occur, that it failed to consider the possibility that the events may have occurred. Also that all the Tribunal found were inconsistencies; rather than a finding of “no real doubt”. Mr Kumar submits that mere inconsistencies in themselves do not make the evidence of no weight, and he relied on Rajalingam at 240 to 242 per Sackville J (with whom North J agreed at 253).
Mr Kumar also submits that an issue of credibility should not preclude a proper review of an application: Sellamuthu v Minister for Immigration (1999) 90 FCR 287. It is submitted that the Tribunal is required to consider all substantial claims and its rejection of the applicant’s memory problems resulted in aspects of his claims not being considered. Mr Kumar referred to SZEEU v Minister for Immigration [2006] FCAFC 2 at [163] per Weinberg J:
…The strict view that the courts have taken in relation to breaches of the rules of natural justice can, in my view, inform the application of the expression “a part of the reason” in s 424A. The cases suggest that this expression should be read benevolently, in favour of an applicant for review. If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of the applicant.
Mr Kumar submits that the Tribunal failed to have proper regard to the test in Rajalingam in relation to the applicant’s memory problems. This resulted in jurisdictional error.
Mr Cleary submits that the second ground is without substance for the following reasons:
14a.The Tribunal found that the applicant gave evidence that he was never involved in any political activities in India (CB at 115). This was fatal to the applicant’s asylum claim.
b.The Tribunal also found it was not satisfied that the applicant was credible (CB at 117). It did not accept that the evidence given by the applicant in support of his claim was credible.
c.In coming to this conclusion the Tribunal acted appropriately and in accordance with the provisions of the Migration Act. The Tribunal applied the correct principles when considering the applicant’s evidence.
d.In MIMA v Rajalingam relevantly the Court said at [34]:
34 It might seem that the principles governing fact-finding in civil litigation are appropriate to the fact-finding processes required to determine the chance that an applicant for refugee status will suffer the persecution he or she claims to fear. In deciding whether the applicant’s fear of persecution is well founded – that is, whether there is a “real substantial basis for it” (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 572) – the decision-maker must access the likelihood that the applicant will be persecuted for a Convention reason if returned to his or her country of nationality. This process ordinarily involves making findings about whether all or part of the applicant’s account of past events should be accepted. Otherwise, as was said in Guo, at 575, there might be no rational basis for assessing the chances that future persecution will occur. The process also requires the decision-maker, on the basis of all relevant information, to make an assessment as to the likelihood that a future event – feared persecution for a Convention reasons – will actually occur. (Emphasis added)
e.The Tribunal conducted itself according to accepted principles. The assessment of the credibility of the applicant is within the domain of the Tribunal: Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407. It is not open to challenge. The Tribunal has made a finding that the applicant’s account should not be accepted. The Tribunal has not committed any jurisdictional error in coming to this conclusion. (First respondent’s further submissions)
I agree with the submissions of Mr Cleary that the Tribunals findings on credibility were based on consideration of matters that were logically probative of the issue of credibility: Kopalapillai v Minister for Immigration (1998) 86 FCR 547. The Tribunal identified and discussed with the applicant significant inconsistencies in his evidence which caused it to make those findings. A credibility finding is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs, Ex Parte Durairajasingham (1999) 168 ALR 407. The credibility findings were premised on factors as set out and explained in detail in the Tribunal’s reasons. I was also referred to Kamal v Minister for Immigration [2002] FCA 818 at [36] per Marsfield J:
36 It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal.
I am satisfied that the Tribunal applied the correct test and that no jurisdictional error was made.
The third ground of the amended application claims that the Tribunal erred in stating that it did not find that the applicant suffered from Convention-based harm. Mr Kumar claims that the all the following have political dimensions to them and there would at least be imputed political opinion in each claim:
a)As a member of the Khalistan Organisation, or
b)Being persecuted for his refusal to join the Khalistan Barbar Khalsa Party, or
c)Being persecuted for refusing to join the Khalistan Movement.
The Tribunal stated that it did not find any Convention nexus in these claims. Mr Kumar submits that the Tribunal failed to understand the essence of the applicant’s claim of imputed political persecution because it narrowly defined political opinion.
Mr Kumar argues that the applicant’s refusal to join the Khalistan Movement was a political statement: Vdaya Samon Perera Ronwolage v Minister for Immigration & Multicultural Affairs [1998] FCA 1480.
Mr Kumar contends that persecutory acts committed for political opinion must be assessed by reference to the persecutor, and referred to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 390. Further, that people are persecuted for something perceived about them or attributed to them by their persecutors: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568 per Burchett J. Mr Kumar submits that it would therefore be wrong to view persecution from the perspective of the persecuted, as persecution contains an element of motivation on the part of the persecutor. The Tribunal failed to do so. The identification of a wrong issue, the asking of a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power, are all examples of jurisdictional error: Craig v South Australia (1994) 184 CLR 163; Lu v Minister for Immigration (2005) FCAFC 340.
In response to the third ground, Mr Cleary contends that the applicant is seeking a merits review of his asylum claim in that it is not open in judicial review applications to challenge the findings as to whether an applicant suffered Convention based harm.
The Tribunal decision under the sub-heading “Findings and Reasons” states:
In consideration of the evidence as a whole and for reasons explained below, the Tribunal is satisfied that the applicant is not a credible witness and that he has fabricated the substance of his claims in order to support his application for a protection visa. In the opinion of the Tribunal, there are a number of substantial inconsistencies in the information provided by the applicant. Of particular concern to the Tribunal is the fact that in the course of the hearing, the applicant gave evidence that he was never involved in any political activities in India but arguably that is the most fundamental claim in the application for a protection visa. At various stages in the course of the hearing, the applicant claimed that he has memory problems and that he had sustained injuries to his head. Without expert clinical evidence, the Tribunal does not accept that the applicant suffers from any conditions which the Tribunal needs to take into account in assessing his claims or his explanations relating to the evidentiary problems. (CB115)
The Tribunal then dealt with each of the issues identified by Mr Kumar: at [33] above. Each issue was dealt with based on the creditability of the applicant at the hearing and was the applicant was provided with a further opportunity to address after the s.424A letter.
I accept the submission by Mr Cleary that this Court is being asked to re-evaluate each of those findings, which is a request to undertake a merits review. Such a review is not permissible and this ground must fail.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursement of and incidental to this application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 31 May 2007
32
0