SZIQP v Minister for Immigration - [2007] FMCA 1506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1506

MIGRATION – Review of decision of RRT – where applicant’s claims amount to no more than a request for merits review.

Migration Act 1958, s.424A

Kamal v Minister for Immigration [2002] FCA 818

WABY v Minister for Immigration [2002] FCA 1091

Applicant:

SZIQP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File number:	SYG1049 of 2006

Judgment of:

Raphael FM

Hearing date:

15 August 2007

Date of last submission:

15 August 2007

Delivered at:

Sydney

Delivered on:

15 August 2007

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1049 of 2006

SZIQP

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He arrived in Australia on 16 September 2005. On 27 September 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 4 November 2005 a delegate of the Minister refused to grant a protection visa and on 21 November 2005 the applicant applied for review of that decision.
The Tribunal invited the applicant to a hearing which he attended on 27 February 2006. On 28 February 2996 the Tribunal determined to affirm the decision under review and it handed that decision down on 21 March 2006. The applicant provided with his application for a protection visa a statement in handwriting of some nine page. In it he explained that his father was a retired policeman and that his family were of the Islamic religion. He explained that the family had lived in police quarters until his father’s retirement when they moved in to a village of some size near Chennai in Tamil Nadu.
He spoke about problems between the Muslim residents of the village and the Hindu community and in particular a serious attack upon a group of Islamic youth on 28 October 1999. The applicant complained to the police following this attack. He said that the police did not take much action. Some time later whilst he was walking with a friend he was attacked by a group of six persons who had weapons. The police were called and the applicant identified at least one of the people who seemed to have been involved in the incident. He stated that this caused problems because the people involved in the assault were extremely angry with him. He went into hiding and was unable to get a good job because he feared further reprisals. He was told that the group would not allow him to live peaceably. His father recommended that he travel away from India and he came to Australia on 27 July 2005. He was unhappy in Australia and homesick and so he left and returned to India on 1 August. At first things were all right but soon a member of the Hindu organisation that had caused his problems came to his home. His parents suggested that he return to Australia and seek this country’s protection.
When the application was considered by a delegate of the Minister it was said in the reasons which can be found at [CB 96]:
“It is reasonable to expect that the applicant would provide a full and frank account of his circumstances in his refugee application. The applicant’s claims, however, are vague and lacking in specific details, for example, the applicant has not provided any specific details about his political activities other than to state that he was the important position in a group which intended the stop the problems between the Muslim and Hindu communities and to protect the Muslim community or membership of any specific political organisation. Furthermore, the applicant has not substantiated any of his claims with documentary evidence such as police reports, newspaper articles or medical certificates. Consequently, I am not satisfied that the applicant has a significant adverse political or religious profile in his local community.”
When the matter came before the Tribunal the applicant provided it with copies of two passports and his father’s pension details but otherwise he provided no additional documentation. He gave the same story to the Tribunal but it would appear that once again the history was lacking in detail. The Tribunal stated in its findings and reasons at [CB 156]:
“The Tribunal acknowledges that, in assessing an applicant’s credibility, it must be sensitive to the difficulties often faced by asylum seekers in presenting their claims and should give the benefit of the doubt to those who are generally credible but unable to substantiate all of their claims. The Tribunal recognises that it is important that a liberal attitude is required in the proof of refugee status.
The Tribunal has come to the conclusion that the applicant is not credible in respect of key aspects of his claims for protection. Not being satisfied in respect of these aspects of his claims leads the Tribunal to conclude that the applicant is not in genuine fear of persecution nor is there a real chance of persecution of its return to India.
…
The Tribunal does not accept that in 1999 the applicant provided key evidence of a prominent Hindu person attacking Muslims and since then the applicant has been subject to ongoing threats of harm from various Hindus.
The Tribunal does not accept this claim because the applicant’s evidence in respect to this claim is most unconvincing. The applicant in his oral evidence to the Tribunal provided only vague, non-specific and ill-defined detail on these claimed events. He knew little of the person he claimed to have provided eye witness evidence on and what had become of him, was unclear about who subsequently was threatening him and unclear about the nature of the threats made to him.”
The Tribunal went on to opine that there were other inconsistencies in the applicant’s statements to it and because the applicant had made business trips to Malaysia and Singapore and because he had lived in the village all his life it was not satisfied that he held a genuine fear of serious harm on his return by virtue of events which had occurred in 1999.
The applicant’s grounds for suggesting that the Tribunal had fallen into jurisdictional error in the manner in which it came to its decision are contained in his amended application. The first ground sets out a series of statements which are intended to establish that the applicant’s claims fall within the Convention definition. I have no problem with agreeing with him that they do. The second ground indicates that the Tribunal failed to see that he had satisfied the four key elements. But in my view this statement, acknowledging the Tribunal’s decision, does not in any way point to a jurisdictional error in that decision. The third matter raised by the applicant was that the Tribunal had failed to see that he was nervous at the time of the hearing and the Tribunal should have considered matter on merits rather than on some answers given by the applicant in his state of mental stress.
There is nothing in the Tribunal decision to suggest that it had any concerns about the applicant’s mental condition or that the applicant had indicated to it that he was nervous. However, the Tribunal does recognise in the passage which I have previously extracted from [CB 156] that it has a responsibility to be sensitive to the manner in which applicants present their claims and I have no reason to believe that it was not as sensitive as it acknowledged it should be. In any event the purpose of the hearing is for a Tribunal to listen to the claims being made by an applicant and to give that applicant the opportunity of making the best he possibly can of those claims.
In this particular case the applicant was well aware from the decision of the delegate that there were some lacunae in his claims and that they needed some substantial bolstering in order to become convincing. Notwithstanding this no effort was made to do anything more than to repeat what was before the delegate. It is not unreasonable and it does not seem to me to be unreasonable for the Tribunal to have come to the same conclusion as the delegate concerning the credibility of the applicant in these circumstances. The Tribunal is only able to consider a matter on its merits if it has some evidence to consider and it is the absence of evidence that caused the Tribunal to make the findings that it did concerning the applicant’s credibility. As Mansfield J said in Kamal v Minister for Immigration [2002] FCA 818 at [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.”
And Tamberlin J said in WABY v Minister for Immigration [2002] FCA 1091 at [17]:
“It is well settled that in reasoning to its conclusion there is no obligation on the RRT to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning.”
The fourth matter raised by the applicant was that the Tribunal failed to see that he was an eye witness to an event of fighting between Muslims and Hindus. The Tribunal actually does not make such a finding. What it says was that it does not accept that he provided key evidence in relation to such a fight. The question of whether or not the fight took place is not specifically addressed. In any event all the applicant is asking for in this ground is impermissible merits review. The fifth matter raised by the applicant was that the Tribunal failed to see that his life was under threat as he gave evidence. But the Tribunal has made a finding of fact that he did not give that evidence. And once again all the court is being asked to do is to reverse a finding of fact by the Tribunal.
The sixth matter raised by the applicant was that the Tribunal committed a mistake by stating that he was not a credible witness. It will be seen from the extracts from the judgments that I have already cited that the Court is not able to interfere in this way. The seventh matter raised by the applicant was that the Tribunal failed to see that he had sought asylum as he could not get any kind of protection or help from any of the authorities. This matter is not really addressed by the Tribunal because the Tribunal had concluded that the applicant did not get himself involved with the authorities in the manner he had suggested. If it had considered the matter it would no doubt have concluded that the applicant, having gone to the police on two occasions and having had something done as a result of his complaints, could no longer be heard to say that there was no protection from the authorities. The final matter raised by the applicant is that the Tribunal was not correct in saying that his evidence was unconvincing. The hearing before the Tribunal is an inquisitorial procedure. It is for the Tribunal to determine what is convincing and what is not. What may convince one Tribunal may not convince another. But a court cannot interfere with a decision by a Tribunal as to this except in very exceptional circumstances such as those where the Tribunal indicates its lack of conviction resulting from evidence which does not in fact exist. Once again, in relation to this ground the applicant is seeking impermissible merits review.
Although there has been no suggestion that the Tribunal fell into error in the manner in which it dealt with the documentation to which it referred for example by failing to provide the applicant with a letter pursuant to s.424A of the Migration Act 1958 (the “Act”), it is clear from the Tribunal’s decision that both the passports and the father’s retirement document were provided to the Tribunal by the applicant and hence were exempted from the definition of information for the purposes of that subsection.
I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: