SZJTL v Minister for Immigration
[2007] FMCA 816
•29 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 816 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant not believed – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) considered – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Applicant: | SZJTL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3506 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3506 of 2006
| SZJTL |
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 signed on 10 October 2006 and was handed down on 31 October 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims based upon imputed political opinion. The background to the applicant's claims and the Tribunal decision on them is set out in the Minister's written submissions filed on 22 May 2007. I adopt, with necessary amendments, as background for the purposes of this judgment paragraphs 2 through to 10 of those written submissions:
The applicant is a male citizen of India born on 25 July 1968.[1] He arrived in Australia on 2 April 2006.[2]
[1] court book (CB) 13, 29
[2] CB 15, 39
The applicant applied for a protection (class XA) visa on 15 May 2006.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 20 July 2006.[5]
[3] CB 1-47
[4] CB 27-28
[5] CB 56-63
The applicant applied to the Tribunal for review of the original decision on 17 August 2006.[6] The applicant submitted the delegate's decision[7] and a statement setting out why he thought the decision was wrong.[8]
[6] CB 64-67
[7] CB 68-76
[8] CB 77
The applicant gave oral evidence before the Tribunal on 3 October 2006. The Tribunal signed its decision on 10 October 2006 and handed down the decision on 31 October 2006.[9]
[9] CB 93-106
The applicant's claims
The applicant claimed to fear persecution from Indian authorities because of his political opinion. In a statement that accompanied his protection visa application he claimed that he became interested in politics at University and supported the Peoples War Group (PWG). He stated he was involved in demonstrations in 1992 which resulted in Muslim youths being targeted and arrested by police. A PWG supporter assisted him into the jungle where he hid for a year. He claimed he worked in Saudi Arabia for 5 years. He stated that in 2004 police again started to harass Muslims and that they went to his store looking for him.
The decision of the Tribunal
The applicant appeared before the Tribunal on 3 October to give evidence. The Tribunal questioned him in detail in three principal areas; where he resided in India, his political opinion and level of political involvement and his passport. At hearing, the applicant claimed that he did not support any group in particular, had not been politically active but he admired the PWG.
The Tribunal rejected the applicant’s claims finding him to be entirely lacking in credibility. It found his claims were not only inconsistent with independent evidence but his oral evidence was internally inconsistent. It rejected claims that the applicant had ever been in hiding in the jungle or in hiding prior to his departure from India. Regarding the applicant's residences and periods of hiding the Tribunal found his oral evidence to be arbitrary and inconsistent. At one point he claimed to have been in hiding in the jungle in 1992. He later claimed that he resided in Saudi Arabia from 1992. The Tribunal found this inconsistency to be significant and was not satisfied with his explanation. In light of this it found the applicant had been dishonest in his evidence.
In light of the applicant's own evidence at hearing, the Tribunal found he had never been involved with the PWG. It made adverse credibility findings about the claims to have a friend involved in the PWG and his claim to have been in hiding. Accordingly, it was not satisfied the applicant had any fear in India arising from any actual or suspected involvement with the PWG. Regarding these claims the Tribunal:
a)Noted he resiled from his claim to have been an active supporter and stated that he admired the PWG but this admiration never translated into action. The applicant claimed local Muslims were arrested but was never able to explain to the Tribunal how this affected him. The applicant stated he was never arrested. Accordingly, the Tribunal found the arrest of "boys" (in the manner stated by the applicant) had little relevance to his claims.
b)Referred to its previous finding, that it was not satisfied he was ever in hiding, to dismiss the applicant's claim that PWG member assisted him into hiding. It found this claim to be an unsupported assertion.
c)Found that since the applicant, by his own admission, was never involved in any political activities, it was implausible that the police would have any adverse interest in him arising from PWG or any other political protests.
Finally, the Tribunal rejected the claim, made at hearing, that he would be arrested if he were to return to India, because he 'helped people' in or around 1992. The applicant was unable to satisfactorily explain how providing assistance, 14 years ago, would lead to his arrest now.
These proceedings began with a show cause application filed on 27 November 2006. In that application the applicant asserted actual notification of the Tribunal decision on 6 November 2006. On that basis I find that the application was filed within time.
The applicant now relies upon an amended application filed on 26 April 2007. That application asserts that the Tribunal fell into jurisdictional error by failing to comply with its obligations under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The particulars identify the information which the applicant asserts should have been disclosed but were not.
Both parties took the opportunity to file written submissions. Those of the applicant were filed on 15 May 2007 and the Minister's, as I have already noted, were filed on 22 May 2007. Both parties relied upon their written submissions at the hearing today. The applicant expressly declined to make any oral submissions.
The amended application and the applicant's submissions assert that the Tribunal was required to disclose information derived from his protection visa application that was discussed with him at the hearing conducted by the Tribunal. There is support for the contention that various aspects of the applicant's protection visa claims were discussed with him at the hearing[10].
[10] CB 98-102
It is plain from the extensive discussion recited by the presiding member in her reasons that she had some credibility concerns about important aspects of the applicant's claims. Hypothetically, if a Tribunal considers that particular information derived from a protection visa application may be a reason, or part of the reason, for affirming a decision under review the Tribunal comes under an obligation to invite comment on that information pursuant to s.424A(1). That obligation can arise at any time before a Tribunal decision is made. If evidence is available that prior to making a decision a tribunal considers that particular disclosable information will be determinative, the obligation under s.424A is probably enforceable.
However, ordinarily, as here, the Tribunal's thinking processes are not revealed until the Tribunal makes its decision. It is generally only by reference to the reasons for the Tribunal decision that the extent of the Tribunal's obligation under s.424A can be properly assessed. The fact that particular information was discussed with the applicant at the hearing does not mean that the same information was determinative of the outcome before the Tribunal. The Tribunal's thinking may well change over time. In the case of the information identified in this application, in my view it was either information provided by the applicant to the Tribunal for the purposes of the review at the hearing or it was not determinative of the outcome, or it was general country information.
The position is analysed in detail in the Minister's written submissions in relation to the several items of information identified by the applicant. I agree with and adopt for the purposes of this judgment paragraphs 16 through to 24 of those submissions with necessary amendments:
The applicant claims a breach of s.424A in relation to information regarding:
a)the date of issue his passport;
b)passport issuing and conditions for leaving the country;
c)relocation in India;
d)inconsistencies relating to his whereabouts and residences;
e)the Tribunal’s finding that he was involved with the PWG;
f)the Tribunal’s finding that he was not of adverse interest to the authorities for assisting people in around 1992 due to the time that had passed.
No s.424A obligations arise in relation to the information relied upon by the Tribunal in its findings and reasons derived from the applicant's oral evidence at hearing. Accordingly, this information was given by the applicant for the purpose of his application which falls within the exclusionary provision of s.424A(3)(b).
Passport information
The information about the date of issue of the applicant's passport did not form a part of the reason for the decision. Although this was discussed at hearing with the applicant,[11] it did not factor in to the Tribunal’s findings and reasons. In any case, the first respondent submits, and I accept, that the applicant provided his passport to the Tribunal, therefore this information falls within the exclusionary provision of s.424A(3)(b). [12]
[11] CB 101.2-101.9
[12] CB 86-87
Danish fact finders information
The Danish fact finders information in relation to passport issuing and conditions for leaving the country did not form a part of the reason for the decision.[13] However, in any case, this is information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member. Accordingly, this is information that is excluded from the operation of s.424A(1) by s.424A(3)(a).
[13] CB 101.8
Relocation information
In relation to the applicant's claim that the relocation information was not put to him in a s.424A letter, the first respondent submits and I accept first, that although this was discussed with the applicant at hearing,[14] it did not form a part of the reason for the decision. In any case, this information falls within the s.424A(3)(a) exclusion as it is information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member.
[14] CB 102.2-102.7
Whereabouts and residences information
Similarly, the inconsistencies relating to the applicant's whereabouts and residences and the time he was in hiding was drawn from the applicant's oral evidence[15] and again was information given by the applicant for the purpose of his application and is excluded from the operation of s.424A(1) by s.424A(3)(b).
Involvement with PWG information
In respect of the applicant's claim that there was a breach of s.424A in relation to the Tribunal’s finding that the applicant had never been involved with the PWG, this was the applicant's evidence at the hearing and falls within the s.424A(3)(b) as it was information given by the applicant for the purpose of his application.
(a)At CB 104.5, the Tribunal states that the applicant resiled form his earlier claim to have been an active supporter of the PWG and stated that he had 'admiration' for them but that this had never translated into action.
(b)No s.424A obligations arise in relation to this information as it did not form a part of the reason for the adverse credibility finding. Rather, the Tribunal was noting that the applicant had abandoned his earlier claim. In any case, as the applicant resubmitted the delegate's decision with his Tribunal application, this was information given for the purpose of his application and falls within the exclusion set out in s.424A(3)(b).
Problems arising from "assistance to people" information
The applicant also claims that the Tribunal was required to put to the applicant information in relation to its finding that the authorities would have no adverse interest in him now due to activities that took place 14 years ago. The first respondent submits, and I accept, that the information relied upon by the Tribunal in making this finding was derived from the applicant's oral evidence,[16] as such it was given by the applicant for the purpose of his application. Accordingly, it falls within the exclusion set out in s.424A(3)(b).
The applicant also claims that he did not comment on this information because he needed more time to give an explanation to the Tribunal. However, there is nothing in the available material which indicates that the applicant needed or requested more time to give an explanation.
[15] CB 98.4-99.3
[16] CB 102.8
I find that the Tribunal did not breach s.424A of the Migration Act.
Essentially, the applicant failed before the Tribunal because he was not believed. The adverse credibility findings made by the Tribunal were based upon a reasoned analysis of the material before it. The findings made by the Tribunal were open to it on the material before it.
I find that the decision of the Tribunal is free from jurisdictional error. Accordingly, the decision is a privative clause decision and the application must be dismissed and I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,300. Scale costs in this instance would be $5,000. I accept that costs of not less than $3,300 have been properly and reasonably incurred on behalf of the Minister on a party and party basis. The applicant is concerned about his capacity to pay costs but that is not a reason for the Court to refrain from making a costs order.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 May 2007
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