SZJOT v Minister for Immigration
[2007] FMCA 1705
•10 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1705 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth), s. 474 |
| Applicant: | SZJOT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3124 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 October 2007 |
| Date of last submission: | 10 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2007 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Ms E. Warner Knight, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3124 of 2006
| SZJOT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of India who claims to be entitled to a protection visa on the basis of a fear of persecution by reason of her political opinion arising from her membership and activism of the People’s War Group (PWG or Naxalites) in India. The Applicant claims to fear persecution from the authorities, the PWG, the BJP and Hindu groups in India.
On 24 March 2006, the Applicant arrived in Australia, having legally departed from Trivandrum International Airport on a passport issued in her own name and a visitor visa issued on 20 February 2006.
On 5 May 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
On 3 June 2006, a delegate of the First Respondent 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.
On 21 June 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 10 October 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Tribunal found the Applicant not to be a credible and truthful witness and found that the Applicant had fabricated most of her claims. The Tribunal comprehensively rejected every claim made by the Applicant in respect of past harm, membership of the PWG and a well-founded fear of persecution from those identified bodies and groups for a Convention reason. In particular, the Tribunal had regard to “significant inconsistencies between her written and oral claims”. Such inconsistencies were identified to the Applicant in a s.424A letter dated 30 August 2006 and sent to the Applicant’s adviser for comment. The adviser responded by letter dated 13 September 2006 on behalf of the Applicant. The Tribunal found the various explanations proffered to be unsatisfactory.
The Tribunal’s decision discloses exchanges the Tribunal had with the Applicant about various aspects of her evidence that caused it concern.
The Tribunal noted that it put to the Applicant that her claim of a fear of persecution from the PWG was not made by her in her application for a protection visa and noted the Applicant’s explanation that her adviser may have missed including such a claim. The Tribunal did not accept that the Applicant’s adviser would have left out such claims if in fact the Applicant had mentioned them at the time of her application for a protection visa; and did not accept that the Applicant would have failed to mentioned such a claim in her application for a protection visa or in her application for review by the Tribunal. Further, the Tribunal noted that the Applicant was only able to give “the most banal generalities” with regard to the PWG. Ultimately, the Tribunal did not accept that the Applicant was a member of the PWG or had any active participation in the group “because she knew next to nothing about the group”.
Because the Tribunal rejected the Applicant’s membership of the PWG, the Tribunal did not accept that the PWG had turned against her for having ceased her activities with the PWG or that she has any fear of harm from members of the PWG.
The Applicant claimed to fear persecution because the work she did with the PWG was against the interests of the Congress Party, BJP and other Hindu groups. However, because the Tribunal rejected the Applicant’s claims to be a member of the PWG and rejected the Applicant’s claim of a fear of harm from the PWG, the Tribunal did not accept that she had any fear of harm from the Congress Party of India, the BJP or other Hindu groups by reason of her activities with the PWG.
The Tribunal also rejected the Applicant’s claims of earlier detention and arrest. The Tribunal also rejected the Applicant’s claims of having charges pending in India arising out of her association with the PWG.
The Tribunal found that “The totality of the applicant’s evidence shows a propensity to exaggerate and tailor her evidence in a manner which achieves her own purpose.”
Accordingly, the Tribunal was not satisfied that the Applicant has suffered past harm or that there is a real chance that she will be harmed by the authorities or any other person, party or group for a Convention reason if she were to return to India now or in the reasonably foreseeable future. The Tribunal affirmed the decision under review.
On 26 October 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant’s husband was also an applicant before the Tribunal, although his application relied on his relationship with the Applicant. Only the Applicant had claims under the Refugee Convention. Only the Applicant sought judicial review of the Tribunal’s decision in her application filed on 26 October 2006.
The Applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The Applicant confirmed that she relied upon the grounds identified in an amended application filed on 28 February 2007.
The amended application asserted that the Tribunal failed to make findings in relation to her claims of active participation in Communist trade unions and her fear of persecution from the PWG and Congress leaders. The amended application also alleged that the Tribunal was biased against the Applicant because it rejected her explanation of why she was unable to provide meaningful information in support of her claims; that the Tribunal erred in rejecting her explanation as to the inconsistencies between her written and oral claims because her adviser failed to write down her claims; that the Tribunal rejected her new claims unfairly; that the Tribunal failed to accept that the Applicant tried unsuccessfully to relocate to another part of India; that the Tribunal unreasonably rejected the Applicant’s claims because she was unable to demonstrate knowledge of Mao; and that the Tribunal should have given consideration to the Applicant’s personal participation in the PWG movement rather than the Applicant’s knowledge and expertise on the ideas of Mao.
The grounds of the application were interpreted for the Applicant and she was invited to make submissions in support of each ground and in support of her application generally. The Applicant made no meaningful response other than to commence to reiterate her factual claims.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered each claim made by the Applicant in relation to those bodies and groups from whom she alleged to fear persecution. Those bodies and groups are referred to above in these Reasons. The Tribunal comprehensively rejected every claim made by the Applicant of a well-founded fear of persecution for a Convention reason on credibility grounds and found that her claims were fabricated. In particular, the Tribunal identified and considered the Applicant’s claims of a fear of persecution from members of the PWG, and the Congress Party. The PWG is the same body as that identified by the Applicant as CPI(M) and Naxalites. The Tribunal provided reasons for its adverse credibility findings. In the circumstances, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it.
Accordingly, the allegation that the Tribunal failed to make findings about the Applicant’s claims of fear of persecution at the hands of the PWG and Congress leaders is not made out.
In relation of the Applicant’s allegation of bias, no evidence was provided by the Applicant in support of such contention. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task with a mind not open to persuasion. Accordingly, the Applicant’s allegation of bias is not made out.
The other grounds relied upon by the Applicant are no more than disagreements with the Tribunal’s evaluation of the evidence and its resultant findings, in particular, its adverse credibility findings in respect of the Applicant’s evidence. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. To revisit those findings seeks merits review which this Court cannot undertake.
The Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative of clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth), this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 26 October 2006, is dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 10 October 2007
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