SZGXV v Minister for Immigration

[2008] FMCA 959

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGXV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 959

MIGRATION – Review of RRT decision – where Tribunal made adverse credibility finding against applicant – where corroborative statement provided by applicant – where no weight given to corroborative statement.

WAGU v Minister for Immigration [2003] FCA 912

Applicant: SZGXV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 62 of 2008

Judgment of: Raphael FM

Hearing date: 4 July 2008

Date of Last Submission: 4 July 2008

Delivered at: Sydney

Delivered on: 4 July 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 62 of 2008

SZGXV

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 4 April 1997 and applied to the Department of Immigration and Citizenship for a protection (class AZ) visa on 3 July 1997.  A delegate of the Minister refused to grant the visa on 21 July 1997 and the applicant made the first of three applications for review of that decision on 13 April 1999.

2. The history of the applicant's legal journey since that date is irrelevant for the purposes of these reasons.  It will suffice to say that without any fault being attached to the applicant his claims were reconsidered by a Tribunal which on 30 November 2007 determined to affirm the decision under review and handed that decision down on 13 December 2007.

3. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his claimed association with the Khalistan Liberation Movement (KLF) and Barba Khalsa.  These are Sikh suffrage movements which the applicant claims to have joined in the 1980s.

4. The significant and most immediate reason why he left India and sought protection in Australia was that after being detained and beaten in October 1996 and leaving India for that reason, a cache of ammunition was discovered upon the farm that he owned by the local police.  The applicant claimed that the ammunition had been placed there by the Barba Khalsa and that he believed firstly that that movement continued to utilise his farm for the purposes of hiding ammunition and arms and secondly, that having discovered the first cache the police continued to visit his farm and searched for more ammunition for a regular period extending over 10 years.  The applicant believed that if he returned to his village he would be arrested and killed by the police because of his association with this insurgency group. 

5. Before the hearing, which the applicant attended on 10 October 2007, the Tribunal listened to tape recordings of a previous Tribunal hearing.  The applicant told the Tribunal that he had nothing to add to that information and the Tribunal then commenced to question him about his story.  The Tribunal's questions and the responses of the applicant are found at [CB164]-[167], and they include the Tribunal putting to the applicant inconsistencies between the evidence given at the hearing and evidence given in previous documentation or in the previous hearing before the second Tribunal.

6. After the hearing on 24 October 2007 a post-hearing submission was received. This dealt with one concern raised by the Tribunal about the description of the applicant's parents and his passport. On 4 November 2007 the applicant provided a further submission to the Tribunal to which was attached an affidavit of a Mr Kalwant Singh, a friend, from the applicant's village who the applicant told the Tribunal had been updating him as to the activities of the police in and around his property. This affidavit is reproduced at [CB152]-[153].

7. The Tribunal in its findings and reasons indicated that it did not find the applicant to be credible on several key aspects of his claims [CB 173]. 

   At the hearing, the applicant did not impress the Tribunal in giving evidence.  He was not forthcoming in making out his claims but rather was evasive and obfuscating in his responses to questions. 

   The Tribunal does not accept that the ammunitions were stored on the applicant's property by the Barba Khalsa which were then discovered by the police.  The Tribunal considers that the applicant's evidence on this claim to be unpersuasive and implausible.  In particular, the Tribunal found unpersuasive, the applicant's claim that the police have for the past ten years visited his farm on a fortnightly basis looking for ammunitions and that the applicant knows this because a friend, back in his home village, has seen the police going to his farm and digging around.

   The Tribunal then gave some more reasons why it did not accept the applicant's evidence as credible, pointing out inconsistencies in his evidence relating to his hiding at an aunt's house and the vacillation in his evidence about his claimed association with Barba Khalsa.

8. In regard to the corroborative statement given by Mr Singh the Tribunal says [CB 174]:

   The applicant, post hearing, provided a statement from Mr Singh in India who claims to have witnessed the police activity on the applicant's farm whilst the applicant has been living in Australia and has kept the applicant informed of these police activities.  The Tribunal places no weight on the witness statement as it reiterates the applicant's oral evidence and does not in any way overcome the implausibilities and inconsistencies of the applicant's oral evidence thus identified. 

   For the reasons set out above, the Tribunal does not accept that the applicant was associated with the Barba Khalsa; that ammunitions were stored on his farm, and that because of this, police will kill him should he return to India.

9. The Tribunal did accept that the applicant was a Sikh from the Punjab and that Sikhs in the Punjab have been the subject of discriminatory conduct in the past, but it found from independent country information that the situation in the Punjab had changed considerably since the 1980s and early 1990s, and that there was no longer generalised mistreatment of the Sikh population, although Sikh militants of some profile may face harm at the hands of the authorities.  The Tribunal concluded that whilst the applicant may have experienced harm in the past because of his ethnicity, this would not continue should he return.

10. On 10 January 2008 the applicant filed an application with this court for review of the Tribunal's decision.  The grounds of that application were firstly that the Tribunal had misdirected itself when it concluded that he was not a member of the Barba Khalsa or had any association with them, but he does not really explain why this misdirection was a jurisdictional error.

11. It seems to me that the applicant disagrees with the findings made by the Tribunal as to his association with this group and wishes the court to indulge in merits review by reversing that finding.  This of course the court cannot do.  The second point raised by the applicant is that the Tribunal erred in law when it placed no weight on the witness statement.

12. The Minister accepts that the common law doctrine of procedural fairness applied to this matter but that even so, whilst the doctrine may require a Tribunal to allow the applicant an opportunity to comment on the reasons for rejecting corroborative material, such material can be rejected as having no weight without putting this to the applicant, where the Tribunal has made an adverse credibility finding regarding him.

13. The Minister draws a distinction between cases where corroborative material has been rejected on grounds of fraud and cases where corroborative evidence has been given little or no weight because of the applicant’s credibility.  WAGU v Minister for Immigration [2003] FCA 912 at [36] is one of the latter where French J said:

    “Corroborating evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility.  In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision maker in this case the Tribunal to invite comment upon its thought processes on the way to its decision.  But where corroborated evidence is rejected on the basis of a finding of fraud or forgery or some other positive basis which has never been put to the tendering party, there may be a failure of procedural fairness.”

14. It seems to me that in this particular case, the corroborative evidence falls into the first category discussed by his Honour.  It was not so much rejected as being fraudulent, but rather the similarity between what was being said by the witness and what had been said by the applicant was noted, so that whilst the document may have corroborated what the applicant said it was not considered by the Tribunal to indicate that what was said was true, the Tribunal preferring its own assessment of truth based upon its consideration of the applicant's evidence and the manner in which it was given.

15. Prior to this hearing commencing the applicant produced for me an outline of submissions, but this document does not really take his case very much further than the original complaints.  It does suggest that the Tribunal was wrong not to have accepted that the applicant would be in serious danger because the finding of a cache of arms on his property could involve him in breaches of the Prevention of Terrorism Act in India and that the police were waiting to arrest him if he returned.  So far as I can see from the green book, there is no evidence that the police have issued a warrant for the arrest of the applicant, but in any event this claim is not able to be upheld because the Tribunal made a finding of fact that no arms were hidden on the applicant's property.  That was a matter essential to the applicant's claims.  The finding of lack of credibility was open on the evidence and even though others may have taken a different view, the failure of the Tribunal to accept the applicant's story is not a jurisdictional error.  If there were no arms there could be no arrest, and therefore the Tribunal was not required to take this matter into consideration.

16. For the reasons given above I have been unable to find jurisdictional error in the findings of the Tribunal.  I dismiss the application.  I order the applicant to pay the first respondent’s costs assessed in the sum of $4,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  11 July 2008