SZJLN v Minister for Immigration - [2008] FMCA 1021

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1021

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – principal applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 91R, 414, 415, 424A

First Applicant:

SZJLN

Second Applicant:

SZJLO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 968 of 2008

Judgment of:

Driver FM

Hearing date:

21 July 2008

Delivered at:

Sydney

Delivered on:

21 July 2008

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents:

Mr M Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

Exhibit A1 is to be returned to the first applicant.
The application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 968 of 2008

SZJLN

First Applicant

SZJLO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 25 March 2008. The Tribunal affirmed a decision of a delegate of a Minister not to grant the applicant a protection visa. The applicants are from India and made claims of political persecution.
Background relating to the applicants’ protection visa claims and the decisions of the Minister's delegate and the Tribunal on them are conveniently summarised in the Minister's written submissions filed on 14 July 2008. I accept and adopt as background for the purposes of this judgment paragraphs 2 through to 22 of those written submissions:
The applicants are husband (“primary applicant”) and wife, Indian nationals and Hindu.
The applicants arrived in Australia on 17 February 2006.
The applicants applied for a protection visa on 30 March 2006 under s.36 of the Migration Act 1958 (“the Migration Act”).
Primary applicant’s claims
In the application for a protection visa the applicants sought protection in Australia based on the primary applicant’s fear of harm from Muslims arising from:
(a)the primary applicant being a Hindu activist and having previously persecuted Muslims; and
(b)the primary applicant being an active member of Shiv Sena since 2001.
The primary applicant claims:
(a)Muslims attempted to kill him on multiple occasions; and
(b)he was unable to “live openly” and needed to keep moving for 3 years.
The second applicant did not make any separate refugee claims herself. She made a family unit claim under s.36(2)(b) of the Migration Act.
Decision of the Delegate
On 3 May 2006 a delegate of the Minister refused to grant a protection visa to the applicants. This decision was based on an assessment of the primary applicant’s claims and independent country information. The delegate found the applicants did not have a well-founded fear of persecution.[1]
[1] Green Book (“GB”) at 44
Review in the Tribunal
On 23 May 2006 the applicants lodged an application for review of the delegate’s decision in the Tribunal.[2]
[2] GB at 72
A differently constituted Tribunal affirmed the delegate’s decision on 5 September 2006.[3]
[3] GB at 58
On 29 September 2006, the applicants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.[4] The Federal Magistrates Court quashed the first Tribunal’s decision and remitted the matter to the Tribunal.
[4] GB at 77
In a letter dated 22 November 2007 the applicants were invited by the Tribunal to provide any documents or written arguments to the Tribunal in support of their claims.[5]
[5] GB at 86
In a letter dated 9 December 2007 the applicants were invited to attend an oral hearing on 8 January 2008 at the Tribunal.[6]
[6] GB at 88
On 7 December 2007 the Tribunal received a request for postponement[7] and by letter dated 9 December 2007 granted the postponement.[8]
An oral hearing was ultimately held at the Tribunal on 18 January 2008. The primary applicant attended but his wife was absent due to illness. The hearing was conducted with the assistance of an interpreter and a representative solicitor accompanied the primary applicant.
In a letter dated 13 February 2008 from the Tribunal the applicants were invited to provide comments on certain information provided to the Tribunal by the primary applicant.[9]
No response was received from the applicants to the invitation to provide comment.
The Second Tribunal’s decision
On 17 March 2008 the Tribunal affirmed the delegate’s decision not to grant a protection visa to the applicants.
In coming to its decision to affirm the decision of the [delegate] the Tribunal reviewed at length the written and oral claims and evidence provided to the Tribunal. Firstly, it reviewed the applicable law in unobjectionable terms. It then set out the primary applicant’s claims and evidence. Finally, it set out its findings and reasons.
The Tribunal accepted the applicants were Indian nationals and Hindu. However the Tribunal did not accept the claims of persecution in India based on the primary applicant’s religion and previous membership of Shiv Sena. The Tribunal observed and commented on inconsistencies between the primary applicant’s written and oral statements, inconsistencies in oral evidence given at the first and second hearings, and the changing nature of his oral evidence. Based on the significant inconsistencies in the primary applicant’s evidence, the Tribunal found the claims lacked credibility and the primary applicant was not a witness of truth.
The Tribunal found the primary applicant was prepared to exaggerate his role in Shiv Sena so as to create the profile of a refugee for himself. The Tribunal accepted the country information that suggested members of Shiv Sena were not under threat or at risk of persecution in India. The Tribunal concluded the primary applicant did not have a well‑founded fear of persecution for a Convention reason.
The Tribunal found the applicants did not have a well-founded fear of Convention-related persecution if they returned to India, now or in the foreseeable future. The Tribunal found the applicants were not persons to whom Australia owed protection under the Migration Act.
[7] GB at 90
[8] GB at 91
[9] GB at 119
These proceedings began with a show cause application filed on 18 April 2008. The applicants now rely upon an amended application filed on 24 June 2008. The grounds in that amended application are:
(a)The Tribunal failed to assess the Applicant’s refugee claims in a ‘Constructive and Articulate Manner as required by s 414 and s 415 of the Migration Act 1958’… because of the following conflicting and contradictory findings;
The Tribunal accepts that the first named Applicant became a Member of Shiv Sena in 2001. There is nothing in the country information to suggest that Members of Shiv Sena are under threat or at risk of persecution. The Tribunal is satisfied that, in the event that the first named Applicant wishes to continue his Membership in Shiv Sena in the foreseeable future, it would not pose any threat to him
The Tribunal finds that the first named Applicant is not a witness of truth and was prepared to exaggerate his role in Shiv Sena and fabricate his claims….” (‘Ground One’)
(b)The Tribunal was ‘Manifestly Unreasonable’ towards the Applicant because of its following conclusion:
When considering the evidence as a whole, the Tribunal finds that there are a number of inconsistencies between the first named Applicant’s written evidence and oral evidence, between oral evidence given by him at the first hearing and the second hearing well as the internal inconsistencies and changes in the oral evidence by the first named Applicant at the hearing.
The Applicant submits that the Tribunal did not find that the Applicant per se fabricate evidence…despite some credibility with the Applicant’s evidentiary problems. Therefore the Applicant submits that the Tribunal’s total disregard of the plausibility of the Applicant’s evidence was highly unreasonable and unfair.
The Applicant submits that the method used by the Tribunal earlier to equate a positive situation as to the Applicant’s Membership in the Shiv Sena with a negative situation subsequently in its findings to dismiss the Claims for the Refugee was ‘procedurally unfair’ and thereby denied the Applicant with ‘justice’ and ‘fair play’ which was a grave error made by the Tribunal. (‘Ground Two’)
(c) The Tribunal committed jurisdictional error;
i.The Tribunal failed to uphold its jurisdictional commitment under s91Rof The Act;
ii.The Tribunal failed to give due recognition to the Applicant’s written and oral evidence nor supporting documents whereby the Applicant was denied a fair hearing and justiciable findings;
iii.The Tribunal failed to carry out a proper test as to the Applicant’s real chance of facing serious harm. (‘Ground Three’)
I have before me as evidence the affidavit accompanying the original application as well as the court book filed on 3 June 2008. I also received as a tender, exhibit A1, which comprises a document handwritten in the Gujarati language bearing the date 21 May 2001 and an English language translation. The translation was made by On Call Interpreters and Translators Agency at some unknown time. As best as the first applicant can recall the translation was obtained in April or May this year.
The first ground in the application is a complaint about alleged inconsistent findings by the Tribunal. The first applicant asserts a breach of ss.414 and 415 of the Migration Act. It is unnecessary to decide whether a breach of those sections would amount to a jurisdictional error because the asserted inconsistency is not an inconsistency. The Tribunal accepted that the first applicant became a member of Shiv Sena in 2001. The Tribunal rejected his contention that he was a high profile member of the party. Specifically, the Tribunal did not accept that the first applicant played a key role in the organisation. There is no inconsistency in those findings. I reject ground 1.
Ground 2 asserts that the Tribunal decision was manifestly unreasonable, presumably in the Wednesbury sense. The particulars refer to Tribunal findings relating to apparent inconsistencies between the first applicant's written and oral evidence, and also between the oral evidence given by the first applicant at the first and second Tribunal hearings as well as inconsistencies within the oral evidence given by the first applicant at the second Tribunal hearing. In my view, the adverse credibility findings made by the Tribunal were open to it on the material before it. I accept the Minister's submission that the factual findings made by the Tribunal were for it and not this Court.
The first applicant also asserts in this ground that there was something procedurally unfair about the Tribunal decision or its process. I reject that contention. The Tribunal met its obligations to invite the applicants to a hearing. From the extensive discussion at GB 144 to 150, it appears that the hearing opportunity was a real one. The Tribunal put to the applicants in writing pursuant to s.424A of the Migration Act apparently adverse information. The Tribunal also sought information on whether the second applicant wished to attend another hearing before the Tribunal as she was unwell and unable to attend the hearing on 18 January 2008. The Tribunal records that no response was received. I reject ground 2 in the application.
Ground 3 asserts a breach of s.91R of the Migration Act. I am satisfied, however, from my reading of the Tribunal decision that the Tribunal understood the task that it had to perform. It considered the first applicant's claims of past harm and made adverse factual findings.

The Tribunal then made a forward looking assessment[10]. In so doing, the Tribunal met its obligations both under s.91R of the Migration Act and the Refugees Convention.
[10] GB 154
The first applicant also asserts in this ground that the Tribunal failed to give due recognition to his evidence and supporting documents.

The first applicant drew my attention to the fact that he had submitted a number of documents to the first Tribunal[11]. He asserted in his oral submissions that he was questioned about issues dealt with in at least some of those documents at the second Tribunal hearing. However, as I pointed out to him, if that occurred it would not indicate a failure by the Tribunal to have regard to those documents. The Tribunal may have wanted to test the credibility of his evidence by comparing his oral evidence to the documentary record.
[11] GB 69
The first applicant placed particular emphasis on the fact that he had wanted to submit a further document to the Tribunal and had been unable to do so. The Tribunal records[12] that the first applicant indicated that he wished to submit a document to the Tribunal and sought two weeks to obtain an English translation of that document. The Tribunal agreed to the first applicant's request and granted him until 1 February 2008 to submit the document. As at the time of writing its decision no further documents had been submitted to the Tribunal.
[12] GB 150
The first applicant complains that it took a long time to have the document translated into English and that he understood the Tribunal would inform him orally of when the decision would be handed down. It is possible that in the course of the Tribunal hearing the first applicant was told that the Tribunal would take into account whatever might be submitted up to the date of handing down. That would be consistent with common practice and the Tribunal's legal obligations.
As matters turned out, the decision was not handed down until

25 March 2008
. I am unable to say whether the Tribunal gave any indication to the first applicant that he would receive oral notification of a pending handing down of the decision. However, on 17 March 2008 the Tribunal wrote to the applicants’ authorised recipient to invite the applicant to the handing down of a decision[13].
[13] GB 127
The first applicant asserted orally from the bar table that his authorised recipient, an experienced migration solicitor, failed to inform him of the handing down notification. Even if that were so, however, it would not indicate any error by the Tribunal. In any event, the applicant did not submit the English language translation at any time before the Tribunal decision was handed down.
I am prepared to infer from the second last dot point at GB 69 that the document in the Gujarati language, which I received as an exhibit[14], was before the Tribunal. It may have been on the basis of that document or on the basis of the first applicant's oral evidence or both that the Tribunal accepted that the first applicant had become a member of Shiv Sena in 2001[15]. That is what the document says. It says little more. In my view, even if the first applicant had submitted an English translation of the document to the Tribunal prior to the handing down of the Tribunal decision it would have made no difference.

The document, in substance, goes no further than confirming his Shiv Sena membership as at 21 May 2001. It certainly does not establish that the first applicant played a key role in the organisation.
[14] Exhibit A1
[15] GB 154
In my view, the first applicant did not lose any real opportunity by his apparent inability to obtain an English translation of the short Gujarati letter between 2006 when the Gujarati version was apparently given to the Tribunal and 25 March 2008 when the second Tribunal decision was handed down. I reject the third ground of review.
I find that the Tribunal decision is free from jurisdictional error.

The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I also direct that exhibit A1 be returned to the applicant.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $5,000.

That is the amount prescribed under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The first applicant did not wish to be heard on costs. The second applicant did not appear either at the directions hearing on 16 May 2008 or today. She did not sign either the original show cause application, or the amended application. Although named as a party she appears not to have taken any part in the proceedings. In the circumstances I will not make a costs order against her. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 July 2008