SZJUT v Minister for Immigration
[2007] FMCA 574
•11 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 574 |
| MIGRATION – Finding as to credibility is a finding of fact – finding of fact not to be set aside merely because the reviewing body thinks that the possibilities of the case are strongly against the finding. |
| Migration Act 1958, ss.91R, 415, 424A Federal Magistrates Court Rules 2001 r.44.12(1)(a) |
| Randhawa v MILGEA (1994) 52 FCR 437 NABE v Minister for Immigration & Multicultural & Indigenous Affairs ( No.2) (2004) 144 FCR 1 |
| First Applicant: | SZJUT |
| Second Applicant: | SZJUU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3615 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 11 April 2007 |
| Date of last submission: | 11 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr. Goodwin |
| Solicitors for the Respondent: | Ms J. Pownall of Australian Government Solicitor |
ORDERS
The application, amended application, and further amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3615 of 2006
| SZJUT |
First Applicant
| SZJUU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 6 December 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 October 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants a protection visa. The applicants filed an amended application on 26 March 2007 and by leave of the Court and consent of the first respondent filed a further amended application in Court.
The first named applicant was born on 8 May 1954 (the “applicant”). His wife (born 13 November 1962) is the second named applicant in these proceedings. Both claim to be from and of Indian ethnicity and Sikh faith.
The applicants arrived in Australia on 15 May 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 5 June 2006. The applicant wife did not submit her own claims to be a refugee, but is included in the application of the husband. In this application he claimed to fear persecution in India because of his political involvement in the Khalistan Federation. The applicant stated that he was arrested and detained for 10-15 days following the 5 June 1984 attack on the Golden Temple. The applicant claimed that he had to cut off his hair to save his life because “where ever people saw Sikhs, they would hang tyres on their necks and set them on fire alive” (CB 39). The applicant claimed that he was forced to take part in processions and gatherings of the Mann and Babbar Groups (CB 39), and as a consequence he (and his family) became the subject of police harassment. The applicant claimed that the police confiscated one of his buses and burnt another. The applicant continued his association with the Khalistan Federation. The applicant claimed that police conducted raids to find the applicant. The applicants left their house and lived with relatives. The applicants obtained visas and went to Singapore and then came to Australia (CB 39).
This application was refused by a delegate of the first respondent on
21 July 2006 (CB 47).
On 17 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 57). The applicant gave oral evidence before the Tribunal on
17 October 2006, at which time he maintained the claims made in his original protection visa application. The applicant’s wife was unwell and did not attend the hearing. The applicant declined the Tribunal’s offer to adjourn the hearing (CB 83).
On 31 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 86-89) (emphasis added):
On the basis of the available information, the Tribunal is satisfied that the applicants are citizens of India and that they are outside that country.
In the course of the hearing, the applicant was unable to provide important details about many aspects of his claims. The Tribunal appreciates that some of the claimed events allegedly occurred many years ago, however, in consideration of the evidence as a whole and on the basis of the available information, the Tribunal is of the view that overall, the applicant’s evidence was general and lacked details, raising doubts about the veracity of the claims. There are also plausibility concerns. The Tribunal has taken the following matters into account:
· The applicant could not give clear details about when he was sent to gatherings of Sant Jarnail Singh Bhindran. He stated that he went on several occasions. He said that whenever they had a procession he went. He stated that he does not recall dates but “in 1984….whenever they could”. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims.
· The applicant claimed that he had two buses, one of which was seized by the police and the other was burnt down. He stated that the incidents occurred after 1984 but that he did not recall exactly when. The Tribunal asked the applicant if he had any idea when those incidents occurred and he stated “some years after that [1984]”. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims.
· The applicant claimed that a religious person was killed and that he and others were accused of the murder. He said the police came to his house. The applicant could not give specific details about when the person was killed; the applicant stated “I don’t remember…after 84…” The Tribunal is of the opinion that being accused of murder is very serious and the lack of specific details raises serious doubts about the veracity of the claims.
· The Tribunal asked the applicant when he went to Gurdaspus and he stated he went “every time…whenever” they were looking for him. When asked for specific details, the applicant stated whenever there was a procession, the police came looking for him and consequently he stayed at other peoples’ homes. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims.
· The applicant claimed that at times he was beaten by the police. The Tribunal asked the applicant when he was beaten by the police and he stated that he was beaten in 1988 although he could not remember the date. He said he is just a farmer. The Tribunal is not persuaded by the explanation. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims.
· The applicant claimed that the police were looking for him last November. He later said that the police had been looking for him since the procession. He stated that “whenever there was a gathering the police came looking for me at home”. The Tribunal noted that the applicant’s response was general and asked him to be more specific about when the police went looking for him and he stated “any time… anything happened” in the area. The applicant stated that the police were looking for him because his name had been on the list since the 1984 incident. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims.
· The Tribunal asked the applicant about his actual involvement with the Babbar group and he stated that he went to different villages and asked people to join the group. He stated that whatever they used to tell them they would do. He said they took food to the poor and to those hiding in the jungles. The Tribunal asked him about any other activities and he stated “whatever our leader said…we did it”. The Tribunal asked him to be more specific about what he actually did. He said “whatever the leaders asked”, they did. He said they could not say no. Whilst the applicant referred to some activities, overall his responses were vague and lacked specific details, raising doubts about the veracity of the claims.
· The Tribunal asked the applicant when the police conducted raids and he stated that the police conducted raids when he and his wife were coming to Australia in April 2006. The Tribunal asked the applicant when exactly the police conducted the raids and the applicant stated “I don’t remember the dates now”. This response was different to what the applicant said later; upon being asked by the adviser about the April 2006 incident, the applicant now said that the police raided his home after the 28th of April 2006 when a bus was blown up in Jalandhar, but he still could not recall the exact date. He said at that time they were in the farm cutting crops and they had no idea about time. The Tribunal asked the applicant about his whereabouts during the police raid in April and he stated that he was at the farm at the time 1 to 2 kilometres away from the home. The Tribunal is not persuaded. The Tribunal is of the opinion that the lack of specific details raises doubts about the veracity of the claims. Moreover, the Tribunal finds that it is implausible that if the police were looking for him on that day, they did not find him 1 to 2 kilometres away from his home.
· The applicant claimed that the police had been looking for him since the procession (claimed since the 81/82 procession) and the 1984 incident. He stated that “whenever there was a gathering the police came looking for me at home”. The Tribunal is of the view that it is implausible that if the police had been looking for the applicant for all those years that they would not have found him. The applicant claimed that the police never found him because he had gone to friends’ and relatives’ homes. He stated that he went to his in-laws who live at Maksudpur, which is “maybe 15 to 20 kilometres” from Alampur. He also stayed in Gurdaspus which is about 40 kilometres from Alampur. The Tribunal is of the view that the applicant would have remained in close proximity to Alampur and as such, this does not explain how the police did not manage to find him. Furthermore, when the Tribunal asked the applicant why the police were looking for him. He provided vague and general answers, namely that the police were asking him why he was doing things against the government and turning people against the government. The Tribunal is of the opinion that the vagueness and generality of the responses raise doubts about the veracity of the claims.
The lack of details, generality and vagueness in the applicant’s responses have meant that the Tribunal could not be satisfied that the applicant has suffered any of the claimed harm. Furthermore, the applicant has not provided any corroborative evidence. In light of those concerns and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has been a member of the Khalistan Federation since 1981/1982, or that he was ever involved in activities relating to the Babbar Group, including but not limited to going to Group’s procession(s) with his father, or that he was sent to gatherings of Sant Jarnail Singh Bhindran, or that the applicant was present on 15 June 1984 when the Golden Temple was attacked, or that he was jailed for 10-15 days, or that his father had been martyred at that place, or that the applicant cut his hair to save his life, or that the Mann Group and Babbar Group traced his whereabouts and came on his busses, or that they forced him to attend their processions and gatherings, or that the police discovered his attendance at gatherings and started to hassle him, or that the police confiscated one of his buses and took it to the police station where they locked it up, or that the police cancelled his route permit and later trashed and set fire to his second bus, or that he was ever beaten by the police, or that his income stopped and it became difficult to meet expenses, or that he returned home and continued his involvement in the Babbar Group, or that he ever met them secretly, or that the police found out in November 2005 that he was actively involved, or that in order to escape the police, he spent “some nights somewhere and other days with my relatives”, or that he was ever accused of murdering a religious man, or that the police did not protect him, or that the police hassled his wife, daughter and mother, or that he told his party about the police and members advised him that it was difficult for him to continue living there, or that they would arrange for him to leave, or that the police ever conducted raids to find him, or that the police set fire to the wheat crop, or that the applicant knows Jadib Singh Shouhan, or that he reported incidents to him, or that on or after 28 April 2006, they did not return home and lived in hiding with their relatives, or that his party got them an Australian visa, or that they cannot return to India. In essence and for stated reasons, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.
The Tribunal is satisfied that the applicant is a Sikh. The applicant has made a general claim that Sikhs in India are ill-treated.
The Tribunal appreciates that Sikhs in India can be ill-treated. However, on balance, country information indicates that whilst there are problems in some areas, the Indian Constitution provides for freedom of religion and that the government generally respected this right in practice. The US Department of State Report, International Religious Freedom Report (Released by the Bureau of Democracy, Human Rights, and Labor
2005) notes that the Indian government “protected religious freedoms during the reporting period through speeches by the Prime Minister promoting communal harmony, the drafting of a model comprehensive law to deal with communal violence, the appointment of activists to high level positions responsible for minority issues, the creation of a Commission for Minority Educational Institutions to improve minority access to education, the establishment of a national commission to determine effective ways to improve the social welfare of religious minorities, and the repeal of controversial legislation targeting minorities”. The report indicates that, “improvements were observed during the period covered by this report and the vast majority of Indians of every religious creed lived in peaceful co-existence”. In consideration of the evidence as a whole, the Tribunal does not accept that without more, there is a real chance of the applicant being persecuted in India in the reasonably foreseeable future, on the basis of being a Sikh, or that he would receive inadequate protection from the Indian authorities.
The Tribunal has considered the applicant’s claims independently and cumulatively. Looking at the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any Convention-related harm or that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future, if he were to return to India.
Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as contemplated by the Convention.
Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
No specific Convention claims were made by or on behalf other applicants. The fate of the other applicant's application therefore depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
1) That the Tribunal erred in law due to “The Tribunal appreciates that some of the claimed events allegedly occurred many years ago, however, in consideration of the evidence as a whole and on the basis of the available information, the Tribunal is of the view that overall, the applicant’s evidence was general and lacked details, raising doubts about the veracity of the claims.” (See CB 86)
2) That the Tribunal exceeded its jurisdiction when concluded – “The Tribunal considered the applicant’s claims independently and cumulatively. Looking at the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any Convention related harm or that there is a real chance of such harm occurring…” (See CB 89)
3) The Tribunal misconstrued applicant’s claims – “Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugee Convention, as amended by the Refugees Protocol.” (See CB 89).
In his amended application filed on 26 March 2007, the applicant set out the following grounds and particulars:
Ground 1
The Tribunal failed to evaluate the Applicant’s claims in a constructive and articulate manner because of the following finding it made without drawing a balance between the Applicant’s evidence despite the Applicant attended the review hearing on 17th October 2006 which gave the Tribunal the ample opportunity to have cleared up its doubts rather than holding:-
“The lack of details, generality and vagueness in the Applicant’s responses have meant that the Tribunal could not be satisfied that the Applicant has suffered any of the claimed harm. Furthermore, the Applicant has not provided any corroborative evidence. In light of those concerns and in consideration of the evidence as a whole, the Tribunal is not satisfied that the Applicant has been a member of the Khalistan Federation since 1981/1982”. (GREEN BOOK page 84, para 02) (sic CB 88)
The Applicant submit that the Tribunal was not assessing the Applicant’s claims in a constructive and articulate manner because it failed to consider properly the following information:
a)“The Tribunal asked the applicant about his claim [that] on the 15th June 1984 he was present when the Golden Temple was attacked. The applicant stated that he was at the Temple with his father. He said they went to the Temple to pay their respects but the police did not allow them to go inside the Temple.” (See CB 84)
b)“The Tribunal asked the Applicant what happened to him personally on that day and he stated that there was fighting. He said that he and others were arrested and that he was arrested because they wanted to help people inside the Temple but the Police did not want them to go inside. He said that he and others were fighting with the police who did not want them to go inside (sic “did not permit them to enter the temple”).” (See CB 84)
c)“The applicant gave evidence that he was imprisoned by the Police for 15 days and he was released when the other villagers came to get him.” (See CB 84)
d)“The Tribunal asked the applicant if he was charged with any offences and he stated that he was charged ‘with fighting,…giving slogans against the Government… disturbing the peace…” (See CB 84)
e)The applicant gave evidence that his father could not be found after the incident and that they have never known about what has happened to his father. He said that after that incident he never saw his father again. He said they continued to make inquiries (sic enquiries) about his father but no one knew what had happened. He said his father died during that incident.” (See CB 84)
The Applicant submits that the Tribunal’s attempt to under-estimate the clear evidence given by the Applicant during the hearing and taking a negative approaches such as – “The lack of details, generality and vagueness in the Applicant’s responses…” etc by the Tribunal clearly proves that the Tribunal has failed to act according to its responsibilities under Sec.415 of the Migration Act 1958 and thereby made a jurisdictional error as per the Full Federal Court decision in NABE.
Ground 2
That the Tribunal, by its failure to conduct the review of the Applicant’s claims in a constructive and articulate manner invariably failed to carry out the mandatory jurisdictional commitment devolved upon it under Sec.91R of the Migration Act 1958 whether the Applicant’s life would be in real danger due to any ‘real chance’ that he would face either serious harm or persecution due to the following finding the Tribunal made:-
“The Tribunal has considered the Applicant’s claims independently and cumulatively. Looking at the evidence as a whole, the Tribunal is not satisfied that the Applicant has suffered any Convention related harm or that there is a real chance of such harm occurring to the Applicant in the reasonably foreseeable future.” (See CB 89)
The Applicant submits that the Tribunal having concluded that – “The lack of details, generality and vagueness in the Applicant’s responses the Tribunal could not be satisfied that the Applicant has suffered any of the claimed harm…”, has made an apparent contradiction when stated “has considered the Applicant’s claims independently and cumulatively” which finding is highly inconsistent and an imbalance of the findings with one another referred to above, including the position taken up by the Applicant under GROUND ONE above where the Applicant has given clear and positive responses to the Tribunal when questioned. Hence there was a jurisdictional error.
Findings of the Court on the application
After considering the applicant’s claims independently and cumulatively, the Tribunal rejected all of the claims other than that the applicant is an Indian citizen and a Sikh. The Tribunal set out detailed reasons for rejecting the claims.
The adverse finding of credibility was open to the Tribunal on the material before it. “A finding of credibility is a finding of fact, and a reviewing body must not set aside a finding simply because it thinks that the possibilities of the case are against, or even strongly against the finding”: W148/00A v MIMA (2001) 185 ALR 703 per Tamberlin and Nicholson JJ.
That finding of credibility “must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted or evidence which was inconsistent with facts unconditionally established by the evidence on which was glaringly improbable,”: Devries v Australian National Railways (1993) 177 CLR 472 at 479 per Brennan, Gaudron, and McHugh JJ.
There is no ground to set aside the adverse findings as to credibility and fact by the Tribunal. The findings on the evidence were findings of fact properly open to the Tribunal and are not open to challenge: Holt v Comcare 2002 FCA 1484 per O’Loughlin J at para 21. The grounds in the application all challenge findings of fact and are rejected.
Findings of the Court on the amended application
Ground 1 claims that the Tribunal failed to consider the applicant’s claims in a constructive or articulate manner as it failed to consider his claims properly, or give his evidence proper weight. The applicant then sets out as particulars various findings of fact that he seeks to challenge. The Tribunal, however, made findings which rejected all those matters and those findings are recorded at Court Book p.88 in the paragraph at the bottom of the page. Those particulars do not raise any error of law. The Tribunal is not required to accept uncritically any and all of the claims made by the applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. The Tribunal made adverse findings of credibility which have already been referred to. Such findings are findings of fact which were properly open to the Tribunal on the material before it. They are not open to challenge.
The applicant alleges a failure to comply with s.415 of the Migration Act. Section 415 provides:
(1)The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2)The Tribunal may:
(a)affirm the decision; or
(b)vary the decision; or
(c)if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d)set the decision aside and substitute a new decision.
(3)If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Nothing has been put to show a failure to comply with s.415. That claim is rejected.
The applicant then refers to the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (post) and alleges that a jurisdictional error is demonstrated by that decision. The Court accepts the submission by the first respondent as follows:
“The reference to NABE as a basis for supporting a ground of review is misconceived. The applicant did not claim to fear persecution for any reason other than his political opinion or religious belief. In the absence of any other claim by the applicant, or other claim clearly arising on the material before the Tribunal, the Tribunal was not required to consider any claims other than those made before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [68]).”
No breach of s.415 occurred.
Ground 2 alleges that the Tribunal failed to apply s.91R of the Migration Act properly as if it had considered the applicant’s claims independently and cumulatively it would have found that there was a real chance that the applicant would face serious harm or persecution in the reasonably foreseeable future. That allegation seeks to challenge a finding of fact by the Tribunal. That finding of fact was properly open to the Tribunal on the material before it. The allegation is rejected.
The applicant complained about an apparent contradiction in the Tribunal’s findings between its statements that it considered his claims independently and cumulatively and its findings of fact. The applicant refers to the findings as “an imbalance of the findings with one another referred to above”, including the position taken up by the applicant under ground 1 above. Findings of fact are not properly open to review and this ground is rejected.
Findings of the Court on the further amended application
As referred to earlier, the applicant filed an amended application with leave of the Court. The amended application alleges a breach of s.424A of the Migration Act. No particulars of that alleged breach have been given and the applicant declined an invitation by the Court to give particulars of what material he says should have been subject to a notice under s.424A. Reliance on country information by the Tribunal is within the exception to s.424A(1), that exception being prescribed in s.424A(3)(a). The Tribunal did not rely on any other information which could be subject to s.424A(1). The Court finds that the applicant has not established a breach of s.424A.
Conclusion
The respondents have shown cause why orders should not be made for the relief claimed. The application is dismissed pursuant to r.44.12(1)(a). The Court finds that the Tribunal’s decision is a privative clause decision and has not been infected with jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. The Court therefore dismisses the application and both amended applications.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Mary Giang
Date: 17 April 2007
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