SZJOG v Minister for Immigration
[2009] FMCA 1095
•21 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1095 |
| MIGRATION – Review of RRT decision – applicant a citizen of India – where applicant had introduced new claim to third Tribunal after his initial claims were found to have no Convention nexus – where grounds of review essentially take issue with Tribunal’s finding of fact – request for adjournment considered. |
| Migration Act 1958 (Cth), s.424A |
Minister for Immigration v Khawar (2002) 210 CLR 1
| Applicant: | SZJOG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1306 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 October 2009 |
| Date of Last Submission: | 21 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2009 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,950.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1306 of 2009
| SZJOG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia in September 2004 and applied for a protection (Class XA) visa on 8 November 2004. On 21 December 2004 a delegate of the Minister refused the application for a protection visa. The applicant applied for review of that decision from the Refugee Review Tribunal on 19 January 2005. A Tribunal affirmed the decision under review on 31 May 2005. The decision was handed down on 21 June 2005. On 11 July 2006 the Federal Magistrates Court ordered that the decision be quashed and the matter remitted to the Tribunal to be heard according to law. The second Tribunal also affirmed the decision of the delegate on 26 September 2006 and handed that decision down on 17 October 2006. On 3 October 2008 this Court ordered, by consent, that that second decision also be remitted to the Tribunal to be heard according to law. The application was then considered by a third Tribunal. That Tribunal wrote to the applicant a very detailed letter pursuant to s.424A [CB 143-147] prior to the hearing which took place on 14 January 2009. The applicant responded to the s.424A letter in a written submission [CB 149-151]. On 16 May 2009 the Tribunal determined to affirm the decision not to grant the applicant a protection visa and that decision was handed down on 18 May 2009.
The ground upon which the applicant originally claimed that he was a person to whom Australia owed protection obligations was that of political opinion arising out of him having witnessed the murder of a prominent member of his caste. The applicant was required to be a witness in the prosecution of the perpetrators of this crime and claimed that he suffered as a result from revenge attacks from other members of the criminal’s caste. He did not directly use the word “caste,” he claimed that he was a member of the Naicker community and the perpetrators were members of the Thevar community.
The delegate, in his decision [CB 50 - 55], found that the essential and significant reason for the applicant’s claim to fear persecution was not related to any of the reasons detailed in Article 1A(2) of the Refugees Convention. When the applicant sought review from the first Tribunal he added another claim, that he was a member of the TNLA which is a banned terrorist movement in India. He claimed that he was wanted as a member (albeit a peaceful one) of this organisation and had been moving around India to escape arrest since the early 1990s. It was this claim that was considered by the first and second Tribunals who concluded that they could not be satisfied that it was genuine because it had been raised late in the proceedings and not formed part of the applicant’s original protection visa application.
When the matter came before the third Tribunal it sought to ensure that the alleged faults of the first and second Tribunals, the first of which is no longer considered to be an error and the second may well have arisen out of a concession imprudently made, were alleviated. The s.424A letter recites at some length the history given by the applicant and then points out the inconsistencies between that history and the latest claims. It also raises the non Convention nexus of the original application. The applicant was then invited to and attended a hearing, the details of which are set out at [CB 176 - 184]. There are frequent occasions upon which the Tribunal has made it clear to the applicant that it found it difficult to accept his claims and the reasons for that difficulty were given. There are inconsistencies in the timing of various activities that the applicant refers to.
At [84] of [CB 185] the Tribunal says:
“In the present case I consider there are good reasons for rejecting the applicant’s evidence regarding his claimed involvement in the TNLA. I am conscious of the fact that the events in which the applicant claims to have been involved took place between 1990 and 2004 and there has been a gap of four years since he first gave evidence in relation to them to the Tribunal, at the hearing before the first Tribunal on 27 April 2005. However, my fundamental problem with the applicant’s evidence, as I put to him in the course of the hearing before me, and as outlined in the Tribunal’s section 424A letter dated 15 December 2008, is that I consider that the claims he made in his original application and the claims he has made since contradict each other.”
The Tribunal then proceeds to set out those contradictions before referring to certain corroborative evidence provided by the applicant at the latest hearing. This consisted of three statutory declarations from persons who claimed that they had known the applicant and that he was a member of the TNLA and a sympathiser with the LTTE. One of the statutory declarations from a Mr RR is particularly commented upon at [88] of [CB 186]:
“Mr RR said in his statutory declaration that he knew that the applicant had been imprisoned for some time in India because of his active political role among the Tamil militant groups and the applicant himself submitted to the Tribunal a copy of a document purporting to be an order made by a Principal Sessions Judge in Ramanathapuram on 14 August 2003 releasing him on bail in relation to a charge under the Unlawful Activities (Prevention) Act 1967. In his undated response to the Tribunal’s section 424A letter dated 15 December 2008 handed to the Tribunal on 9 January 2009 the applicant said that he had been arrested by the Tamil Nadu state authorities near Kamuthi village on 7 August 2003 and produced in court on charges of supplying food to the LTTE. He said that he had been granted bail on 14 August 2003 and had been required to report to the Kamuthi police station at 10.00 am every day. As I put to the applicant, it is difficult to reconcile his evidence that he was living in Achankovil in Kerala with his claim that he was reporting every day to Kamuthi police station in Tamil Nadu after he was supposedly released on bail on 14 August 2003. Moreover it is impossible to reconcile the applicant’s claim that there are cases pending against him in India with his answer in his original application that he had never been convicted of a crime or offence in any country or charged with any offence that was currently awaiting legal action.”
For the reasons given at [92] of [CB 187] the Tribunal concluded that the statutory declarations did not outweigh the concerns which it had had regarding the applicant’s evidence and it concluded that the applicant had fabricated his claims regarding his involvement in a Tamil political movement in order to respond to the delegate’s finding that his other claim lacked Convention nexus. The Tribunal considered the Convention nexus of the original claim and also whether the case involved a selective and discriminatory withholding of state protection for a Convention reason of the sort referred to in Minister for Immigration v Khawar (2002) 210 CLR 1. It concluded that it did not.
On 12 August 2009 the applicant filed an Amended Application with this Court. He argued:
“(i) The RRT failed to complete the exercise of its jurisdiction;
(ii) That the decision led to the omission of principles of natural justice while making a decision.”
There were three particulars provided of the second ground. Particular (a) was in the following form:
(a)The tribunal rejected my claim on the basis that the court papers were not presented to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding, limiting the meaning of s424 in contravention to the Article 1A(2) of the Convention. thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support;
(b)The RRT failed to satisfy itself upon whether the applicants had a well-founded fear of persecution based upon probative material or logical grounds:
Particulars:
The situation of the pro LTTE political activities was not taken into account in spite of the independent country information report mentioning the independent Tamil revolutionary struggle launched by TNLA against the state.
The third particular was:
(c) The RRT failed to make findings on all the applicant’s claims.
Particulars:
The RRT may freshly to refer to or to reconsider the material placed before it by the applicants including those statutory declarations and other court material evidences.
In the light of the unfavourable and hostile situation I fear for the safety of my life.”
There are no particulars provided of the first ground and in their absence it would be wrong for the Court to try and guess what the applicant may have meant. Particular (a) of the second ground, whilst appearing incomprehensible at first sight, seems to me to be taking issue with the finding by the Tribunal that the applicant lacked credibility because of his failure to present his claim of being a member of the TNLA in his PVA. This is a matter of evidence and fact which the Tribunal is obliged to consider and its determinations on matters of this type are not the subject of review from this Court. The third Tribunal made it quite clear to the applicant in a s.424A letter that the issue of the late introduction of the TNLA claim was a matter of serious concern to it and it was also emphasised at the hearing.
If the applicant’s responses to these concerns were not satisfactory to the Tribunal, it acted properly in upholding the original decision. The second particular which itself is particularised seems to me to be a product of a misreading of the Tribunal’s decision. The Tribunal is not obliged to take into account the political situation for pro LTTE or TNLA activists when it had already decided that the applicant was not one of those people. That is what the Tribunal decided and country information relating to these activists was an irrelevant matter.
The third ground does not actually identify the materials and the statutory declarations which the applicant claims were not considered. My reading of the court book and the Tribunal’s decision is that all the statutory declarations of his corroborative witnesses were considered and dismissed for the reasons which I have adumbrated.
On 2 September 2009 the applicant filed an affidavit which took the form of some submissions which are particularised. The first particular refers to relocation. The Tribunal did discuss with the applicant his ability to relocate. However, in the end it made no finding on this matter and it was not part of its grounds for affirming the decision under review. The second particular relates to the Tribunal not taking into account the current Indian political situation and then mentions that the Tribunal did not comment or consider the statutory declarations supporting his claim. As has been noted the Tribunal did consider the statutory declarations and gave them little weight for the reasons extracted. As for taking into account the current situation in India this would not be relevant where a Tribunal has come to the conclusion that an applicant has not been the subject of persecution for a convention reason or has made claims which might now make him the subject of such persecution. This is what the Tribunal decided.
The third particular sets out in one lengthy paragraph a series of complaints about the current situation in India and the dangers of being a Tamil in that country. He then proceeds to make reference to other matters of the same nature including the assassination of the late Prime Minister Indira Ghandi and the assassination of her son Rajiv Ghandi before making reference to some statistics about deaths in custody in India and the prevalence of torture. These are matters which would go to the facts of an applicant’s claim for protection but are not grounds upon which a Tribunal can be said to have fallen into jurisdictional error. It seems to me that they are presented here so that the Court can indulge in merits review of the Tribunal’s decision.
The applicant appeared before me today. He sought an adjournment. He told me that he had a painful wrist and that he had to go to hospital for the last two months. He produced no medical evidence and in those circumstances I took into consideration the objections of the respondent and the fact that this was the third time his case had come before the courts albeit through no fault of his own. I declined to grant him the adjournment he sought. He then told me that he had problems in India and that what the Tribunal had decided was wrong. He said that he had told the truth about his affiliation with the TNLA. These matters are not able to influence my view that this, the third Tribunal, did not fall into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the First Respondent’s costs assessed in the sum of $4,950.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 November 2009
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