SZGOD v Minister for Immigration

[2009] FMCA 635

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGOD v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 635

MIGRATION – Review of decision of RRT – where applicant did not particularise alleged breaches of ss.424A or 425.

Migration Act 1958, ss.424A, 425
Migration Amendment (Review Provisions) Act 2007

Applicant: SZGOD

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 23 of 2009

Judgment of: Raphael FM

Hearing date: 2 July 2009

Date of Last Submission: 2 July 2009

Delivered at: Sydney

Delivered on: 2 July 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 23 of 2009

SZGOD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 9 August 2004 and who applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 16 August 2004. On 16 September 2004 a delegate of the Minister refused to grant a protection visa. The applicant sought review of that decision from the Refugee Review Tribunal. He appeared before the Tribunal which affirmed the delegate's decision on 6 May 2005. That decision was set aside by consent in this court and the matter was remitted to the Tribunal to be heard and determined according to law. On 26 September 2006 a differently constituted Tribunal again affirmed the delegate's decision. The applicant had not been invited to a hearing before that second Tribunal. The Federal Court of Australia, on appeal from this court, determined on 5 August 2008, that the decision be quashed and the matter be referred again to the Tribunal to be heard and determined according to law. The third Tribunal considered the matter and held a hearing which the applicant attended. The Tribunal also provided the applicant with a letter under s.424A of the Migration Act 1958 (the “Act”).  The applicant requested more time than that originally provided by the Tribunal to respond to that letter.  The Tribunal considered that request and declined it.  On 11 December 2008 the Tribunal determined to affirm the decision under review. 

2. The basis of the applicant's claim that he was a person to whom Australia owed protection obligations was twofold.  Firstly, he claimed to be a member of the Communist Party who had fallen out with important BJP politicians and a man known as Thankappan.  The applicant had arranged a general strike but was warned off by Mr Thankappan.  The applicant was accused falsely of burning two lorries belonging to a friend of Mr Thankappan.  When his friends came to support him they were arrested along with the applicant.  The applicant claimed that he had relocated to Madras but that some local party members, led by Mr Ravi, had come to his home and threatened him.  The applicant also made claims that, as a Christian, he had fallen out with the people from the scheduled castes in his home state of Kerala.  Scheduled caste people had come to his home, armed with machetes and sticks, and had threatened him.  The applicant told the Tribunal that even after he had left the country people were continuing to come to his house asking after him. 

3. The third Tribunal questioned the applicant at some length about all these matters and during the course of the hearing made it clear to the applicant that it found some of his responses unsatisfactory - see [58], [59], [64] at [CB 212-213] and [49] at [CB 210]. During the course of the hearing the Tribunal handed the applicant a letter under s.424A of the Act dated 18 November 2008 [CB 194-195]. The matters raised in that letter had previously been raised in an earlier Tribunal letter of 7 August 2006 [CB 147-148]. They related to the fact that the applicant had said that he was induced to leave India and travel into Australia because of certain events associated with a general strike to take place on 1 May 2004 and also the fear that had arisen from the visit of Mr Ravi in July 2004. Yet, it appeared from documents contained in the applicant's application for a business visa to visit Australia that he had commenced making plans to leave India before those events happened. This, the Tribunal thought, indicated that the veracity of his claims was in doubt.

4. The applicant asked for further time to respond and provide documents to assist him in relation to the letter and there is a note of telephone conversations between an officer of the Tribunal and the applicant [CB 197‑199].  It is fair to say that the notes of these conversations would seem to indicate that the applicant was unable to tell the Tribunal exactly what the documents were that he was seeking or their relevance to the particular letter.  To my mind, it was not unreasonable for the Tribunal, on 3 December 2008, to decline to grant any further time particularly given the fact that the applicant had been in Australia for four years and had been aware of the concerns expressed about his travel arrangements for two years. 

5. The Tribunal determined that it could not be satisfied from the applicant's evidence that the persecution that he alleged had really occurred or that he was ever at risk of serious harm amounting to persecution.  In respect of his claims of persecution for reason of religion the claims were so vague and the occurrence had taken place so long ago that the Tribunal could not be satisfied that he was at risk of serious harm should he return to India at this time.  In regard to the other claims involving political activity the Tribunal was swayed by the fact that the applicant had never properly explained why he was making moves to travel into Australia prior to the events which he said were the cause for him to leave India.  The Tribunal pointed out:

   “[78] The applicant has consistently stated that the series of events that resulted in his decision to leave India started with the strike in May 2004, and that it was in June 2004 that he had discovered he was wanted and that his life was at risk.  He states that it was in July 2004 that he obtained the help of an agent who assisted with his departure arrangements.  He has provided these dates with certainty, throughout every stage of the processing of his application.  He has never suggested that his recollection of these dates might be inaccurate.

   [79]The applicant has not been able to explain the discrepancy between the dates of preparation of the business visa application, and the claimed timing of the events which led to his decision to leave.” 

6. The Tribunal concluded that the applicant was planning his departure prior to the events which occurred and that this seriously undermined his credibility.  The Tribunal rejected the evidence about persons of unknown origin still visiting his home and asking after the applicant and concluded that he did not leave India because of a well‑founded fear of persecution or that there was a real chance that he would face harm for those reasons if he were to return now or in the reasonably foreseeable future.

7. On 18 March 2009 the applicant filed an amended application with this court. It has two grounds. The first is that the Tribunal failed to comply with the mandatory procedure prescribed by the Act in failing to comply with s.424AA(b)(iv) of the Act. That subsection is in the following form:

   “if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the  applicant reasonably needs additional time to comment on or respond to the information.”

8. There are two points to be made. The first is that s.424AA of the Act was introduced by the Migration Amendment (Review Provisions) Act 2007. Item 33 of Schedule 1 of that Act states that s.424AA only applies to applications to the Tribunal made after the commencement of the Act, namely 29 June 2007. This application was made on 13 August 2004. The second matter is that there is nothing in the record of the hearing, which is the only evidence which this court has, that indicates that the Tribunal invoked s.424AA at all. Mr Markus, who appears for the Minister, suggests that the applicant might be referring to the s.424A letter and the Tribunal's refusal to grant an extension of time to respond to it, and he may well be right, given that paragraph 1(a) of the application is:

   “The Tribunal made error in law and jurisdictional error in relation to relief under s.424A of the Migration Act.”

9. The particulars relate to a refusal to allow further time. The applicant has not provided the court with any assistance in determining what the adverse information might have been and it is inappropriate for the court to try and guess. Insofar as the s.424A letter is concerned I have already expressed my views that the Tribunal exercised its discretion not to grant any extra time for a response appropriately.

10. The second ground of amended application was that the Tribunal denied the applicant procedural fairness by reaching adverse conclusions about his claims that were not obviously open on the known material, without giving him an opportunity to be heard in respect of those matters. This would appear to be a claim that the applicant was not granted a proper hearing pursuant to s.425 of the Act, but it cannot stand, in the absence of any particulars, and given the quite clear indication in the Tribunal's grounds of decision that at various stages the applicant was informed that his evidence was lacking in plausibility. I have made reference to a number of paragraphs in the decision record in which the Tribunal made it clear to the applicant that there were problems with his evidence which, in the absence of any other allegations by the applicant would, to my mind, suffice to indicate that this ground cannot be made out.

11. I am satisfied that the Tribunal did not fall into a jurisdictional error in the manner in which it reached its decision in this case.  The Tribunal very carefully avoided the traps into which previous Tribunals had fallen and relied significantly upon the evidence that the applicant had given to it rather than anything he had said to previous Tribunals.  The application is dismissed.  I order the Applicant to pay the First Respondent’s costs which I assess in the sum of $4,200.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  8 July 2009