SZHQC v Minister for Immigration & Anor
[2006] FMCA 1590
•22 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1590 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal to grant protection visa – evidence of applicant not accepted by tribunal – no reviewable error. |
| Migration Act 1958 |
| Filonis v Transport Accident Commission [2003] VCAT 2038 NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | SZHQC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3395 of 2005 |
| Judgment of: | Turner FM |
| Hearing date: | 12 October 2006 |
| Date of Last Submission: | 12 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2006 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondents: | Mr B. Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application before this Court is dismissed.
The applicant is to pay the First Respondent’s costs in an amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3395 of 2005
| SZHQC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 22 November 2006 seeking to review the decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant filed an amended application on 21 April 2006.
Background
The applicant is a 41 year old citizen of India. He grew up in a village in Kerala state and worked in a series of jobs within Kerala.
He obtained employment in Saudi Arabia in September 2000.
The applicant claims that prior to working in Saudi Arabia, he commenced a relationship with a woman who is now his wife. Before leaving India their relationship was revealed to his wife’s family, however they did not approve as she was a Hindu and he was a Muslim. In August 2004, the applicant returned from Saudi Arabia and married his wife in secret. The applicant then applied for a visitor visa and came to Australia.
The applicant claims to fear persecution from his wife’s relatives if he returns to India on the basis of their religious differences. He claims that the wife’s family are wealthy, and wield political influence that could be used to harm him and his family. He claims that the authorities will not protect him from being harmed by them.
The applicant arrived in Australia on 9 September 2004. On 18 October 2004, he lodged an application for a protection visa with the department of the First Respondent. On 21 July 2005 a delegate of the First Respondent refused to grant the applicant a protection visa.
On 5 August 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 13 October 2005.
On 10 November 2005 the Tribunal handed down its decision, dated
14 October 2005, affirming the decision of the Minister’s delegate refusing to grant the Applicant a protection visa. In considering the applicant’s claims, the Tribunal found (at pages 14 to 16):
I accept that the applicant is a Muslim and that he originates from the Indian state of Kerala and I accept that he was educated in that state and worked there before he went to work in Saudi Arabia in 2000. I accept that the applicant lived and worked in Saudi Arabia from 2000 until 2004.
In considering the rest of his evidence I did not find the applicant to be a truthful or credible witness. I do not accept that the applicant formed a relationship with a girl from an orthodox Hindu family when he worked at a wooden mill in the town of Manjeri in Kerala state. I do not accept that he went out with a girl of Hindu family whilst he worked at the wooden mill or that their relationship was a secret the applicant’s evidence on the inception of the relationship did not contain the detail I would have expected if the applicant had been involved in such a relationship and his evidence was generally flat and evasive when I pressed him to describe matters which he should have been able to describe if his evidence was truthful.
I do not accept that the applicant went to Saudi Arabia and wrote to the applicant from time to time - He had no evidence of such contact and admitted that the couple did not speak on the telephone and that the girl did not send him any letters. He claims he returned to India on two occasions during the 4 years he lived in Saudi Arabia and lived in the city of Kozhikode. He did not claim to have had any contact with the girl during these holidays.
I do not accept that when the applicant returned to Kozhikode in India in June 2004 that he and the Hindu girl agreed to marry in secret and that they attended the registry office in Manjeri to marry in August 2004. The applicant did not have a copy of the marriage certificate despite being in Australia since September 2004 He stated that he did not collect a copy of the marriage certificate but told his wife to obtain a copy. As the essence of the applicant’s claim is that he married a girl of orthodox Hindu background and that this caused her relatives to be hostile to him I would have expected that the applicant would have done all he could to obtain a copy of his marriage certificate to support his claims. He also did not have any other supporting evidence of the relationship such as photographs, remittance receipts, letters from India or telephone records.
Further the applicant’s evidence as to how the marriage took place was highly implausible He claimed that despite almost no contact between the couple for 4 years, the applicant returned to live in a city some distance away from the applicant’s home, that the couple then suddenly decided to get married in secret despite having little or no contact prior to the marriage, that they married in a registry office in a town in which the girl’s parents, who were described as wealthy and influential, were living nearby, that the couple approached the registry office separately, that they ‘just got married’ and then returned to their respective homes after the marriage and have had little or no contact since the marriage. The applicant’s evidence as to how the marriage was arranged and performed was evasive and generalised. He was unable to give a description of the events or the formalities associated with the marriage. I do not accept that if he had gone through this procedure as claimed that he could not have given a description of events. Whilst we were discussing the marriage at the registry office the applicant appeared to be highly uncomfortable when giving his evidence. I formed the view that the applicant was unprepared to be tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence
As I do not accept that the applicant has married a Hindu girl as claimed I do not accept that the applicant has been writing letters such a person whilst living in Australia.
I also do not accept that the applicant needs 2 or 3 years for things to “cool down” in India. I find that the evidence of the applicant that he is married to a girl of an orthodox Hindu family in the face of family opposition is not truthful or credible.
Also I do not accept that fact of the applicant’s marriage as claimed. I do not accept his other claims that his wife’s relatives are hostile to him and that they have threatened to cause him harm or that they will cause him harm. For the same reasons I do not accept his claim that the police will withhold reasonable state protection from him because they are influenced by the girl’s family who are wealthy and influential. Also I do not accept the claim that he faces harm from the girl’s relatives. I do not need to consider whether the claimed fear of harm is convention related.
For all the reasons set out above I find that the applicant is not a truthful or credible witness and has fabricated a story that he has been involved in an inter religious marriage in Kerala to support his claims for refugee status.
During the hearing I discussed country information relating to the ability of the police and other government agencies to protect persons who were threatened with harm from individuals in the community. I also discussed the practicalities of relocation to another area of Kerala or India. However given my finding that the applicant’s claims of fear of persecution are fabricated I do not need to make findings on these matters.
I have however, as a matter of prudence, considered the situation if the applicant returns to India now or in the foreseeable future. As a Muslim I accept that he belongs to the largest minority religion in India and there has been some communal conflict between Hindus and Muslims in various areas of India. However the country information indicates that there is a constitutional guarantee of freedom of religion and the government of India has taken significant steps to protect religious minorities and promote inter religious tolerance throughout India. I also accept that country information that Kerala is a progressive state with a large Muslim population and that both the state government and Community of Kerala have exhibited tolerance for minority religions and that communal harmony is widespread. Further there are a number of national and state institutions which provide significant safeguards for minority members of the community.
Taking all the foregoing into account I do not accept that the applicant faces a real chance of persecution for reasons of religion or any other Convention related reason should he return to India now or in the future. Accordingly I am not satisfied that the applicant has a well founded fear of persecution for any Convention based reason.
The application
In his application dated 21 November 2005, the applicant set out 13 grounds as follows;
1.The Refugee Review Tribunal has failed to see that the applicant satisfies the criteria for Article 1A(2) of the Convention.
2.The applicant satisfies the four key elements to the Convention definition as detailed in pages 2 to 4 of the Tribunal’s decision.
3.The Tribunal failed to see that the claims of the applicant are credible.
4.The Tribunal failed to see that the applicant had faced lot of difficulties and if at all the Tribunal had some doubts, benefit of doubt should have been given to the applicant.
5.The reasons given by the Tribunal for the rejection are vague. Many portions of the decision are just extraction of acts and rules and some other definition and it seems the “dismissal” portion has been just included in the said formats. Therefore the Tribunal has not applied its mind and has passed this order mechanically.
6.The many decisions cited by the Tribunal are general in nature and therefore suffer from the infirmity as referred in point 5 above.
7.The Tribunal had simply said “I do not accept” for all the facts given by the Applicant. If at all the Tribunal required more details it should have given sufficient time to the applicant.
8.The Tribunal has taken the facts in relation to the marriage very lightly. The applicant was questioned by the Tribunal for few hours and the application had given answers to the best of his about though he had mental blocks.
9.A reading of the decision will go to show that the Tribunal was interested in dismissing the claim of the applicant rather than dealing it on the real points stated by the applicant.
10.The Tribunal who has to deal with the matter had completely ignored the sufferings of the applicant by simply saying that the claims of the applicant is a “fabricated story”.
11.The Tribunal failed to see that the applicant had fear because of religion which is convention based.
12.In any event the Tribunal should have allowed the claim of the applicant.
13.The applicant seeks permission to file additional grounds in any at a later stage.
Grounds 1 and 2. These are the same as ground 1 of the amended application, which ground is rejected later in this decision.
Ground 3 This is the same as ground 3 of the amended application, which ground is rejected later in this decision.
Ground 4 This is the same as ground 4 of the amended application, which ground is rejected later in this decision.
Ground 5 This is the same as ground 5 of the amended application, which ground is rejected later in this decision.
Ground 6 This is the same as ground 6 of the amended application, which ground is rejected later in this decision.
Ground 7 This is the same as ground 7 of the amended application, which ground is rejected later in this decision.
Ground 8 This is the same as ground 8A (renumbered) of the amended application, which ground is rejected later in this decision.
Ground 9 This is the same as ground 9 of the amended application, which ground is rejected later in this decision.
Ground 10 This is the same as ground 10 of the amended application, which ground is rejected later in this decision.
Ground 11 This is the same as ground 11 of the amended application, which ground is rejected later in this decision.
Ground 12 This is the same as ground 12A (renumbered) of the amended application, which ground is rejected later in this decision.
Ground 13 This ground does not challenge the decision of the Tribunal.
Amended application
In the amended application filed on 21 April 2006, the applicant set out fourteen additional grounds as follows (repeated numbers have been given the letter ‘A’):
1.The Refugee Review Tribunal has failed to see that the applicant satisfies the criteria for Article 1A(2) of the Convention. The decision record of the Tribunal refers to four key elements that are required to satisfy the Convention definition. The applicant states that he satisfies the four key elements and therefore entitled to get protection visa.
The first element – applicant must be outside his country.
The second element – the applicant must fear persecution. If the applicant returns to India his life would be in danger.
The third element – the persecution which the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.
The fourth element – the feat (sic) of persecution for a Convention must be a “well founded” fear. The applicant fulfils all the four elements.
2.The Tribunal has not considered the case of the applicant. A reading of the decision record of the Tribunal will go to show that the matter has been decided in haste.
3.The Tribunal failed to see that the claims of the applicant are credible.
4.The Tribunal failed to see that the applicant had faced lot of difficulties and if at all the Tribunal had some doubts, benefit of doubt should have been given to the applicant.
5.The reasons given by the Tribunal for the rejection are vague. Many portions of the decision are just extraction of acts and rules and some other definition and it seems the ‘dismissal’ portion has been just included in the said formats. Therefore the Tribunal has not applied its mind and has passed this order mechanically.
6.The many decisions cited by the Tribunal are general in nature and therefore suffer from the infirmity as referred in point 5 above.
7.The Tribunal had simply said ‘I do not accept’ for all the facts given by the applicant. If at all the Tribunal required more details if should have given sufficient time to the applicant.
8.The applicant states that the principles of natural justice has been denied.
8[a]. The Tribunal has taken the facts in relation to the marriage very lightly. The applicant was questioned by the Tribunal for few hours and the application had given answers to the best of his about though he had mental blocks.
9.A reading of the decision will go to show that the Tribunal was interested in dismissing the claim of the applicant rather than dealing it on the correct points stated by the applicant.
10.The Tribunal which has to deal with the matter had completely ignored the sufferings of the applicant by simply saying the claims of the applicant is a ‘fabricated story’.
11.The Tribunal failed to see that the applicant had fear because of religion which is convention based.
12.The Tribunal had committed jurisdictional error in considering third party sources and ignoring the first hand information stated by the applicant.
12[A].In any event the Tribunal should have allowed the claim of the applicant.
Grounds 1, 3, 4, 8a, 10, 11, and 12a
These grounds all seek a review of the decision of the Tribunal on the merits. That is, they are all complaints about the conclusions that the member drew from the evidence before the Tribunal. The applicant does not rely upon any error that would be judicially reviewable in these grounds.
As pointed out by counsel for the Minister, credibility is for the Tribunal. That is, it is up to the Tribunal member to determine what part of the evidence is accepted or rejected, and what inferences to draw from that evidence.
For these reasons these grounds can not succeed.
Grounds 2, 5 and 9
These grounds relate to a claim that the Tribunal failed to bring an independent mind to the decision making process and properly consider the Applicant’s claims and evidence.
It is clear that the Tribunal did consider the claims relied upon by the Applicant. The decision sets out the findings of the Tribunal member and the reasons for those findings in a decision that runs to 16 pages. The reasons of any decision maker do not need to be a line-by-line recounting of all of the evidence, only a sufficient statement to allow the parties to understand why the decision was made and to demonstrate that it was made according to law. The reasons in this case adequately explain why the Tribunal member did not believe the applicant, specifically referring to a number of issues that were significant to the member (see the quote in paragraph 7 above).
The applicant complains that part of the decision, being the recounting of the legal tests to be applied, and the formal conclusions, are in a standard form. It must be remembered that Tribunal members decide many matters, all with the same issues of law. The use of a standard statement of the law in the reasons does not show error on the part of the Tribunal member. The essential test is whether the Tribunal member considered the facts and circumstances of the case: contrast the decisions considered in Filonis v Transport Accident Commission [2003] VCAT 2038.
There is nothing in the decision to show that the Tribunal member did not apply the correct tests, nor specifically consider the facts and circumstances of this case.
There is nothing on the face of the decision, nor in the material before me to indicate that there was any actual bias on the part of the member. Nor is there any material to show circumstances which were such as would give rise to a reasonable apprehension of bias. I reject this claim.
Ground 7
The applicant claims that he was not accorded sufficient time to properly put his case.
The applicant had received an earlier decision of the delegate dated
21 July 2005. In it, the delegate found the applicant’s information to be ‘broad, vague, and lacking in relevant detail’ (at page 3). The applicant sought the review before the Tribunal on 5 August 2005.
On 13 September 2005 he was invited to attend the hearing on
13 October 2005, and in that letter he was told that:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The transcript is not before me in this case. There is no affidavit evidence of the applicant to support this claim. There is nothing to indicate that he sought more time or an adjournment of the hearing.
It is not appropriate to simply draw inferences that the Tribunal has not properly carried out its tasks, in the absence of evidence: see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241.
I therefore dismiss this ground.
Grounds 8, 12 and 12a
These grounds are all expressed in general terms. The applicant did not file a written summary of argument explaining the basis for these grounds, nor was he able to point to anything not covered in the other grounds, save for a complaint that the Tribunal member considered country information.
It is clear that the Tribunal member is entitled to considered country information as part of the decision making process. None of the country information dealt specifically with the applicant, but rather the general situation in India. There is no error in the Tribunal member having regard to this material as part of the evidence.
I therefore find that these grounds are not made out.
Conclusion
Much of the applicant’s case before the Court is that the Tribunal erred in not accepting his evidence. The applicant appeared before the Court with the aid of a Malayalam interpreter. The applicant was invited by the Court to make submissions in support of his application initially and in reply, but declined to do so.
I agree with and adopt the following passages on page two of the decision of the Tribunal.
Under s.65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
Subsection 36(2)of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. “Refugees Convention” and “Refugees Protocol” are defined to mean the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively: s.5(1) of the Act…
It is not the function of judicial review by a court to review the findings of fact by the Refugee Review Tribunal, unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R D Nicholson JJ stated at paragraph 64:
“The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge ``has failed to use or has palpably misused his advantage'’ or has acted on evidence which was ``inconsistent with facts incontrovertibly established by the evidence'’ or which was ``glaringly improbable.'’
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 ; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
I find that the Tribunal did not act on evidence that was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.
The Tribunal decided at page15 of it’s reasons that, “for all the reasons set out above I find that the Applicant is not a truthfull or credible witness and has fabricated a story that he has been involved in an inter religious marriage in Kerala to support his claims for refugee status.” As a result of this finding, the applicant cannot be considered to fear persecution for a reason within the Convention definition of “Refugee,” and does not satisfy the s.36(2)criteria for a protection visa.
The application for Review is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 22 November 2006
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