SZIGX v Minister for Immigration - [2007] FMCA 868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 868

MIGRATION – Review of decision by Refugee Review Tribunal – interlocutory hearing – whether time for filing application should be extended – whether the Refugee Review Tribunal made unwarranted findings – whether the Refugee Review Tribunal applied the wrong test in assessing evidence.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2
Federal Magistrates Court Rules 2001, r.44.05

WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZIGX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG382 of 2006

Judgment of:

Emmett FM

Hearing date:

30 May 2007

Date of last submission:

30 May 2007

Delivered at:

Sydney

Delivered on:

7 June 2007

REPRESENTATION

Solicitors for the Applicant:

Mr R. Turner, McMahons National Lawyers

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms F. Mizlaff, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG382 of 2006

SZIGX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

9 December 2005and handed down on 20 December 2005.
The Applicant was born on 20 February 1976 and claims to be from India and of Ezhava ethnicity and Hindu faith (“the Applicant”).
On 14 June 2003, the Applicant arrived in Australia having legally departed from Cochin International Airport on a passport issued in his own name and a temporary business visa issued on 28 May 2003.
On 11 July 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by members of the dominant Bharatiya Janata Party (“the BJP”) in India because of; (i) his ethnicity and a previous relationship with a woman of a wealthy, influential and higher caste family; and (ii) his “campaigns for the recognition and acceptance of the Ezhava people”.
On 21 November 2003, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 10 December 2003, the Applicant lodged an application for review by the Refugee Review Tribunal of the Delegate’s decision. The Applicant made no new claims and provided no further material in support of the review application.
On 3 March 2004, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa. The Applicant sought review of that decision in this Court and the application was dismissed.
On 5 October 2005, on appeal from the Federal Magistrates Court, the Full Court of the Federal Court of Australia set aside the decision by consent and remitted the matter to the Refugee Review Tribunal for determination according to law.
On 20 December 2005, a differently constituted Tribunal (“the Tribunal”) affirmed the decision of the Delegate.
On 7 February 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 24 October 2005, the Tribunal invited the Applicant to come to a hearing on 8 December 2005. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the protection visa application.
The Applicant attended a hearing before the Tribunal on 8 December 2005 and gave oral evidence.
The Tribunal recited with some particularity the claims made by the Applicant in his statement lodged in support of his protection visa application. The Tribunal noted that during the hearing it became apparent that some of the Applicant’s oral claims were inconsistent with his written claims. The Tribunal noted that the Applicant stated that he wished to rely upon his oral claims. As a result of that request, the Tribunal noted that where there were inconsistencies between the protection visa application and the Applicant’s oral evidence it took the Applicant’s oral evidence as representing the claims that the Applicant wished to make.
The Tribunal noted the Applicant’s oral claims that because of a relationship with a high caste woman and the disapproval of her family, relatives of the woman tried to kill him because he was of a lower Hindu class. The Applicant also stated that members of the BJP wanted to kill him because of his relationship with the high caste woman. The Tribunal noted that the Applicant confirmed that there was no other reason that he feared being harmed.
The Tribunal recounted its exchange with the applicant about whether he remained in contact with the woman. The Tribunal noted that the Applicant stated that the relationship commenced in 1999 when the woman would come and visit the Applicant in his shop. The Applicant stated that the relationship continued for two years following which they decided to marry. The Applicant stated that when he went to the registrar to provide details of the intended marriage, the registrar told the woman’s father.
The Applicant claimed that, as a result of this relationship, he was beaten and suffered injuries that left him in hospital for 6 months. The Tribunal noted that the Applicant asserted that, towards the end of his 6 month stay in hospital in Kerala, his attackers found out he was in hospital and came there to threaten him. As a result, the Applicant claimed that he moved to Tamil Nadu.
The Applicant stated that, whilst in Tamil Nadu, he telephoned the woman, however, her mother answered the phone and recognised his voice.
The Applicant claimed that BJP members found him in Tamil Nadu and assaulted him.
The Tribunal had regard to independent country information that it identified in its decision.
The Tribunal commenced the Findings and Reasons section of its decision with a recognition that in assessing an applicant’s credibility it is important to be “sensitive to the difficulties often faced by asylum seekers.” The Tribunal acknowledged that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal noted that it was not required to accept uncritically any or all allegations made by an applicant.
The Tribunal accepted that the Applicant is an Indian national. However, the Tribunal found that the Applicant had “considerably embellished and exaggerated his claims in an attempt to enhance his claims to refugee status.”
The Tribunal accepted that the Applicant formed a relationship with a high caste woman, that they wished to marry and that the woman’s family objected to the relationship, as a result of which, the marriage did not take place. However, the Tribunal did not accept that the Applicant was beaten by BJP supporters and hospitalised for 6 months because of the relationship.
The Tribunal noted that the relationship had been ongoing for 2 years. It further noted that, following the alleged attack resulting in the Applicant’s hospitalisation, it took his attackers 6 months to find out he was in hospital.
The Tribunal noted that the Applicant claimed that he went to Singapore and Malaysia to seek protection. However, the Tribunal noted that Applicant remained in Singapore for only 1 day and in Malaysia for 2 days and then returned to Tamil Nadu, where the Applicant claimed he was at risk.
The Tribunal found in accordance with the Applicant’s evidence that the Applicant took no steps to seek protection whilst he was in Singapore or Malaysia. The Tribunal rejected the Applicant’s explanation of the SARS scare and the cancellation of flights as the reasons for remaining for such short periods in Singapore and Malaysia.
The Tribunal found that the return of the Applicant to Tamil Nadu suggested that the Applicant did not genuinely fear being persecuted in India. Further, the Tribunal expressed the view that it was likely that the Applicant undertook the travel to Singapore and Malaysia as a way of gaining a travel history which would increase the chance that he would be able to obtain an Australian visa.
The Tribunal found that the Applicant had fabricated his claims that he was beaten by BJP members; that he moved to Tamil Nadu to avoid being physically harmed; that he was assaulted in Tamil Nadu; and that he travelled to Singapore and Malaysia to obtain protection.
The Tribunal did not accept there was an ongoing relationship between the Applicant and the woman and was not satisfied that the Applicant was persecuted as a consequence of his “thwarted romance”. In the circumstances, the Tribunal found that the chance that the Applicant faced harm amounting to persecution in the reasonably foreseeable future as a result of the past relationship with the woman was remote and insubstantial.
The Tribunal concluded that having considered the evidence as a whole it was “not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

The proceeding before this Court

The Applicant was represented before this Court by his solicitor,

Mr Turner. Mr Turner confirmed that the Applicant relied on the application filed by him on 7 February 2006. In his application, the Applicant sought an extension of time for the filing of the application because more than 28 days had expired between notification to the Applicant of the decision of the Tribunal and the filing of the Applicant’s application.
The application for extension of time was not accompanied by an affidavit by the Applicant explaining the reasons for his delay. Such an affidavit is required under r.44.05 of the Federal Magistrates Court Rules 2001. The Applicant did not appear at the hearing before this Court and no other evidence was provided to this Court to explain the Applicant’s delay in the filing of his application. Mr Turner, in his written submissions, referred to the Christmas period as an excuse for the delay because the Court’s Registry is closed. Mr Turner further submitted that the First Respondent did not oppose an extension of time in its response to the application, filed on 20 April 2007. However, even if the First Respondent were to consent to an extension of time, it is still for the Applicant to persuade the Court that the explanation for any delay is reasonable and that any such extension would not be futile.
The First Respondent’s counsel, Mr Reilly, opposed the granting of an extension of time on the basis that the application did not disclose a jurisdictional error and that a fair reading of the decision made it clear that the decision of the Tribunal was not affected by jurisdictional error. Counsel for the First Respondent submitted that this Court should consider the matter in the light of the applicant’s interlocutory application for an extension of time and decide the matter accordingly.
Both parties agreed that the matter would proceed as an interlocutory matter in light of the First Respondent’s opposition to an extension of time. There being no evidence of any explanation for delay, however, having regard to the relatively short period of delay, the Court proceeded to consider the utility of extending time.
The Applicant’s solicitor confirmed that the Applicant relied on the application filed on 7 February 2006 identifying the following grounds:
“1. The Tribunal’s decision was based on unwarranted assumptions and/or a lack of evidence.
Particulars
a. The following findings were based on unwarranted assumptions and/or lack of evidence
(ii) That the BJP had lost power in India
(ii) That the Applicant should be aware of the reasoning and motivation of his persecutors
(iii) That he would be persecuted when his relationship was only casual rather than only commencing when it was clear that he intended to marry a higher-caste woman
2. The Tribunal applied the wrong test
PARTICULARS
a. The Tribunal found, by implication, that evidence which was embellished or exaggerated was untrue, when these terms mean that the basis of the evidence was true
b. That the Applicant’s evidence had shifted when a fair reading of the evidence showed that the evidence had developed during questioning not shifted”

Ground 1

Mr Turner referred the Court to WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437 (“WAGO of 2002”) in support of the contention that where a Tribunal makes a finding based on unwarranted assumptions that is an error going to the jurisdiction of the Tribunal’s decision. In WAGO of 2002, the Full Court of the Federal Court of Australia found that the tribunal had failed to take into account the evidence of a witness, in circumstances, where the Full Court found there was no evidence upon which the Tribunal could reject that evidence.
The Applicant contends that, in the proceeding before this Court, the Tribunal made findings that had no evidentiary foundation.
Ground 1 Particular (a)(i) contends that the Tribunal made an unwarranted finding that it considered it “implausible” that the BJP would persecute the Applicant because in the 2004 national election in Kerala no BJP member was returned and the national government was a Congress led coalition rather than a BJP government.
The Applicant’s submission arises from the following paragraph contained in the Claims and Evidence section of the Tribunal’s decision:
“I put to the applicant that the BJP did not win a seat in the 2001 state elections, that no BJP member was returned from Kerala in the 2004 national elections, and that the current government in Kerala is – like the national government – a Congress-led coalition. I put to the applicant that under these circumstances, I considered it implausible that the BJP would be persecuting him. The applicant disagreed with this. I put to the applicant that I had difficulties with his claims. The applicant stated that he is an only child and that his parents depend on him. The applicant stated that he lost everything. If he returns to India he will “lose the most precious thing in his life”.”
The First Respondent contended that the Tribunal was not intending to make a finding at all, let alone a finding of the nature contended for by the Applicant. Rather, the Tribunal was attempting to recite exchanges it had with the Applicant about various aspects of his evidence. In support of that contention, the First Respondent submitted that there was no mention by the Tribunal in the Findings and Reasons section of its decision of the elections, let alone any finding based on the 2004 national elections.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal rejected the Applicant’s claims of assaults by the BJP both in Kerala and Tamil Nadu because of his relationship with the high caste woman. This adverse finding arose from the Tribunal’s finding that the Applicant did not have a subjective fear of persecution in India. That finding by the Tribunal was based on its finding that, following those assaults, the Applicant had travelled to Singapore an Malaysia and had not sought protection in either of those countries. Further, the Applicant returned to Tamil Nadu, being a place where he claimed to have been at risk.
Those findings led the Tribunal to state the following:
“Overall, while I accept that at some stage in the past the applicant wished to marry someone whose parents did not approve of him, I do not accept that the applicant was beaten by BJP members or anyone else for this reason, that he moved to Tamil Nadu to avoid being physically harmed, that he was assaulted in Tamil Nadu or that he travelled to Singapore or Malaysia to obtain protection. I am of the view that the applicant fabricated these claims in an attempt to enhance his claims to refugee status.”
Having rejected the claims of past persecution and having found that the Applicant did not have an ongoing relationship with the high caste woman, the Tribunal found that the chance that the Applicant would face harm amounting to persecution in the reasonable foreseeable future as a result of his past relationship is “remote and insubstantial”.
The findings made by the Tribunal to which I have referred above were open to it on the evidence and material before it and for which it provided reasons.
A fair reading of the Tribunal’s decision makes it clear that none of the findings referred to above relied in any way on the result of the 2004 national elections and the fact that a Congress led coalition was in power.
I do not accept that, in putting to the Applicant that it considered it implausible that the BJP would be persecuting the Applicant and noting the Applicant’s disagreement, the Tribunal was intending to make a finding that the BJP were not persecuting him because of the result of the national elections.
A fair reading of the Tribunal’s decision makes it clear that in the passage referred to, the Tribunal was doing no more than seeking to recite matters raised by it with the Applicant in exchanges about concerns it had with the Applicant’s evidence.
In relation to Ground 1 Particular (a)(ii), Mr Turner referred the Court to the sentence in the Tribunal’s decision in the Findings and Reasons section of its decision where it said “At the hearing the applicant indicated that towards the end of his six months in hospital, his attackers learned that he was there and came to threaten him. In my view, it is implausible that it would take his attackers almost six months to find out that he was in hospital.”
Mr Turner contended that the Tribunal’s finding that it was “implausible” that the attackers would take 6 months to find out the Applicant in hospital, was unwarranted.

However, the Tribunal made clear in the Claims and Evidence section of its decision its exchange with the Applicant about its concerns in respect of his claim that the people who had attacked him found out that he was in hospital. The Tribunal records as follows:
“He stated that towards the end of his six months in hospital, the people who had attacked him found out he was in hospital. I asked the applicant why it took so long for them to find out. The applicant appeared unable to explain why it would take months for them to find out that he was in hospital.”
In finding that it was implausible that it would take the Applicant’s attackers almost six months to find out that he was in hospital, the Tribunal raised the issue with the Applicant and noted his response.
In the circumstances, the Tribunal’s finding that it was implausible that it would take the Applicant’s attackers almost six months to find out that he was in hospital was open to it on the evidence and material before it and for which it gave reasons.
In relation to Ground 1 Particular (a)(iii), Mr Turner referred to the Tribunal’s finding that the woman’s family and friends did not need to wait until the Applicant approached the registrar about his impending marriage to take steps to stop the relationship, and contended that such a finding was unwarranted.
The Tribunal accepted the Applicant’s evidence that the relationship had been ongoing for two years before an approach to the registrar was made during which time the woman would come regularly to visit the Applicant in his shop. The Tribunal stated that it did not accept that the Applicant was beaten and hospitalised for six months because of the relationship. The Tribunal stated that part of the reason that it did not accept that claim was that the Applicant’s evidence was that he and the woman had carried on a relationship for two years before approaching the registrar during which time the woman regularly visited him. The Tribunal found that, in those circumstances, the woman’s family and friends would not have needed to wait until the Applicant approached the registrar to take steps to stop the relationship. A fair reading of the Tribunal’s decision does not disclose that the Applicant claimed that the woman’s parents did not know of their relationship, rather they did not know of the impending marriage until told by the registrar. In the Claims and Evidence section of its decision, the Tribunal noted that the Applicant stated that his parents did not mind about the relationship. In the Findings and Reasons section of its decision, the Tribunal accepted that the woman’s family objected to the relationship. There was no transcript tendered to this Court to suggest that the Tribunal’s decision record is other than accurate.
In the circumstances, the finding of the Tribunal that the woman’s family and friends did not need to wait until the Applicant approached the registrar before taking steps to stop the relationship was open to it on the evidence and material before it and for which it provided reasons.
Ground 1 essentially cavils with the findings of fact made by the Tribunal. As stated above in these Reasons, those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons. It is not open to this Court to conduct merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Accordingly Ground 1 is not made out.

Ground 2

Ground 2 Particular (a) cavils with the Tribunal’s finding that “the applicant has considerably embellished and exaggerated his claims in an attempt to enhance his claims to refugee status.”
Mr Turner stated that the Tribunal “applied the wrong test” in relation to assessing the Applicant’s evidence, in that, if the Applicant’s answers were not complete at the first instance, then any attempt to explain his answers was disbelieved by the Tribunal. Mr Turner submitted that the correct test was to ask was each answer complete and if it was not then the Tribunal should be prepared to accept the developing evidence.
Mr Turner submitted that embellishment and exaggeration do not necessarily mean that the evidence is untrue. That may be so. However, it is a matter for the Tribunal to evaluate the evidence before it. The Tribunal found that any embellishment and exaggeration was “considerable” and done for the purpose of enhancing the Applicant’s claims for refugee status. Further, the Tribunal found that the Applicant’s claims of a well-founded fear of persecution were fabricated.
Mr Turner’s submissions were made in the absence of any transcript. As stated above in these Reasons, the findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it provided reasons. The Tribunal made its findings in the context of its awareness of the difficulties often faced by asylum seekers in providing evidence and for the Tribunal in assessing an applicant’s credibility. The authorities to which the Tribunal referred and the statements of principle are correct.
It was for the Tribunal to evaluate the Applicant’s evidence and to place whatever weight or characterisation it thought appropriate. It did so. The Tribunal gave the Applicant the benefit of the doubt in relation to inconsistencies between the Applicant’s oral claims and his written statement. The Tribunal noted that it is possible that misunderstandings may have arisen because of the process used in the preparation of the protection visa application and that it was possible that the Applicant’s friend or his migration agent added claims that the Applicant had not communicated. At the Applicant’s request, the Tribunal had regard to the Applicant’s oral evidence only where there was any inconsistency with the protection visa application.
In the circumstances, there was no error in the manner in which the Tribunal approached its task of assessing the evidence before it, particularly the Applicant’s credibility.
Accordingly, Ground 2 Particular (a) is not made out.
Ground 2 Particular (b) is to some extent connected with Ground 2 Particular (a).
However, Mr Turner referred specifically to the Tribunal’s finding that in response to questioning the Applicant’s evidence “shifted”. That finding was in relation to an exchange between the Tribunal and the Applicant about the contact the Applicant had had with the woman since he had been in Australia and his attempt to contact her during that time. The Tribunal found that there was not an ongoing relationship between the Applicant and the woman or that either the Applicant or the woman had any interest in resuming the relationship. The Tribunal, in the Finding and Reasons section of its decision, described the changes in the Applicant’s evidence on this issue as a “shift”. Mr Turner appeared to object to the characterisation of the Applicant’s evidence as shifting.
However, in the Claims and Evidence section of its decision, it is clear that the Tribunal explored fully its concerns with the Applicant about his evidence in relation to his contact with the woman. The Tribunal noted the Applicant’s responses to the Tribunal’s questions on this issue and the expansion of the Applicant’s evidence on the issue as the Applicant was “pressed” for further details. In particular, the Tribunal noted that when it first asked the Applicant how he knew the woman was waiting for him, he answered that his friends had told him. When asked how his friends knew she was waiting, the Applicant responded because she was unmarried. The Tribunal then noted that the Applicant stated in response to further questioning that the friends met her and she told them she was still waiting. The Tribunal found that the Applicant’s evidence on this issue had “shifted”.
In the circumstances, the characterisation by the Tribunal of the Applicant’s evidence “shifting” is one that was open to the Tribunal in its evaluation of the oral evidence given by the Applicant. Otherwise, the findings made by the Tribunal about the Applicant’s ongoing relationship with the woman were open to it on the evidence and material before it and for which it provided reasons. The Applicant’s complaint as identified in this particular does no more than again cavil with the assessments made by the Tribunal of the Applicant’s evidence.
Accordingly ground 2 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 7 February 2006, is dismissed with costs.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 5 June 2007