SZJZB v Minister for Immigration

[2009] FMCA 1039

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJZB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1039

MIGRATION – Review of RRT decision – applicants husband and wife from India – where Tribunal noticed inconsistencies between the applicants’ oral evidence – whether Tribunal failed to consider alleged medical condition of wife – where other grounds essentially seeking merits review.

Migration Act 1958, ss.424A, 425

WAKS v Minister for Immigration [2006] FCAFC 32
Re Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425
SZJZB & Anor v Minister for Immigration [2008] FCA 1731

First Applicant: SZJZB

Second Applicant: SZJZC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1082 of 2009

Judgment of: Raphael FM

Hearing date: 1 October 2009

Date of Last Submission: 1 October 2009

Delivered at: Sydney

Delivered on: 1 October 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr H Bevan

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1082 of 2009

SZJZB

First Applicant

SZJZC

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants, who are husband and wife, are citizens of India who arrived in Australia on 14 May 2006.  On 22 June 2006 the male applicant applied to the Department of Immigration and Citizenship for a protection (Class XA) visa and his wife was joined in that application having completed Part D of the form (CB 27) as a person who did not have her own claims to be a refugee.  A delegate of the Minister refused to grant the protection visas and the applicants sought review of the delegate’s decision from the Refugee Review Tribunal which affirmed that decision on 21 November 2006.  The applicants sought review from this court which dismissed the application but upon appeal that decision was reversed and the matter was remitted to the Tribunal to be heard and determined according to law.

2. A differently constituted Tribunal interviewed the applicants and on 7 April 2009 determined to affirm the decision under review.  That decision was handed down on 8 April 2009.

3. The grounds upon which the male applicant, who I will hereafter refer to as the “applicant”, claimed that he was a person to whom Australia owed protection obligations fell within the convention ground of political opinion.  The applicant is a Muslim living in Hyderabad.  He was a shopkeeper who joined the MIM Party and claimed to work actively for it and for its candidates in both local and state elections.  He said that he had joined MIM in about 1998.  In 2004, the applicant was involved in electioneering for the MIM candidate when he was approached by an opposition party known as the TDP.  He says that they asked him to join their party and to work for them and when he refused they threatened to kill him. 

4. He said the same threats were delivered to his mother and to his wife and that he reported these threats to the police in 2004.  In January 2005 he claimed that there was an attack on his business.  He had received phone threats before that but he did not take those seriously.  In January the shop was attacked and he was injured and had to go to hospital for a few days.  He referred this matter to the police telling that a group of 12 people carrying hockey sticks came in and smashed up the shop and his bicycle.  He said that he knew that they were TDP supporters because they spoke in the Telegu language.  It was after this happened that his family met together and agreed that he should leave India.  He says that he spent some time thereafter in Mumbai and Delhi and Madras before leaving for Australia in 2006.  He did not work in his shop after the attack.  He believed that if he returned to India the same people would seek him out and find him and cause him and his wife harm.

5. The applicant was closely questioned by the first Tribunal whose grounds and reasons are substantially reproduced in the decision record of the second Tribunal at [CB 165-172].  That first Tribunal pointed out to the applicant a number of inconsistencies in his evidence, in particular, some of the dates which he gave about the incidents he complained of, his lack of knowledge of the policies and procedures of the MIM party and the time he took from the serious incident complained of until he actually left India for Australia, being over 14 months.  The Tribunal was concerned about the difference in evidence between the applicant and his wife.

   “The Tribunal asked the applicant wife where her husband was living from January 2005.  She stated that he lived in Hyderabad and that he did not live anywhere else before coming to Australia.  The Tribunal asked the applicant wife when her husband closed his business.  He said that it was after the attack.  The Tribunal asked when the attack on the business occurred. The applicant wife said it was in September 2004.

   …

   The Tribunal asked the applicant husband why his spouse stated that he lived in Hyderabad and did not live anywhere else.  The applicant stated that he has an uncle in Mumbai and he made trips to Mumbai to inquire about coming to Australia.  The Tribunal noted that the applicant said earlier that he had only spent two months in Hyderabad while his wife stated that he continued to live there.  The applicant said that his wife meant that he lived in Hyderabad but travelled to other areas. 

   The Tribunal asked the applicant to comment on the fact that his wife said that the attack on the business occurred in September 2004 while the applicant husband said that it was in January 2005.  The applicant husband said that it happened in January 2005.  The applicant said that his wife had a bad memory and maybe she had forgotten.”  [CB 171 – 172]

6. When the matter came before the second Tribunal, both the husband and wife appeared. The husband told me today that whilst he was giving his evidence his wife was absent from the room and, whilst she gave her evidence, he was absent. There is no proof of this and it is not clear from the Tribunal’s written decisions but I do not think that it matters because on 11 March 2009 the Tribunal wrote to the applicant a letter pursuant to s.424A of the Migration Act 1958 (the “Act”) setting out the inconsistencies in the evidence between himself and his wife to which the applicant responded on 1 April 2009. The second Tribunal decision is short. It notes that the first applicant essentially repeated the core claims he made to the first Tribunal. The second applicant said that she had no new evidence to provide. They both confirmed that they had read and understood the issues discussed by the former Tribunal in its decision and they understood that credibility was an issue.

7. The Tribunal commented that there were contradictions in the evidence provided by the applicants at the hearing with the former Tribunal.  The Tribunal noted that the first named applicant stated that his business was destroyed in January 2005 and thereafter he did not live permanently in Hyderabad.  The second named applicant stated that the business was attacked in September 2004 and her husband remained in Hyderabad until 2006.  The Tribunal further noted that the first named applicant stated at the previous hearing that the business was still operating until 2006 but he later stated that it ceased to operate in 2005.  The Tribunal commented that these contradictions raised doubts for the current Tribunal as to whether the applicants provided a credible account of their circumstances in India. The applicants were asked if they wished to comment.  The first named applicant stated that the claims were true and that his wife may have forgotten what happened to them in India.  The second named applicant stated that she did not wish to comment.

8. The Tribunal pointed out concerns it had with the applicants’ lack of knowledge of MIM and its concerns about the first applicant’s membership. The first applicant indicated that he had no further documents to provide. All these matters were raised by the Tribunal in the s.424A letter which was responded to by the first applicant [CB 159]. He stated:

   “My wife was confused and she was not mentally fit because she had memory loss.  We were trying for a baby after our marriage in December 2003 but she was not able to get a baby because of some medical conditions and the doctor gave some negative information for getting baby so she was always upset and she lost her memory for that reason.  After coming to Australia we tried for a baby and luckily my wife became pregnant but unfortunately she lost the baby, and I think this is also happened because of her mental condition. 

   So, there is no contradiction about my claim, my claim is a genuine claim, what my wife told the Tribunal that was the result of her medical condition” …

9. In its Findings and Reasons the Tribunal did not accept as credible the first applicant’s claims that he was involved with the MIM political party in India or that he was targeted and attacked by opponents in the TDP.  The Tribunal considered that the applicant did not provide a consistent account of his circumstances and made reference to the inconsistencies in the evidence about the timing of the attack and whether he lived in Hyderabad thereafter.  The Tribunal made reference to the inconsistencies between the applicant’s evidence and that of his wife:

   “The first named applicant claims that the contradictions in the evidence provided by him and his wife can be attributed to his wife’s memory loss.  He has offered an opinion that his wife is mentally unfit to provide evidence, however even if the Tribunal were to accept his opinion and disregard the second named applicant’s evidence, the contradictions in his own evidence remain.”  [42] [CB 176].

10. The Tribunal concluded that it could not be satisfied that the applicant was involved with MIM based upon his lack of knowledge of the procedures of that party and its performance during the 2004 elections.  It found that the applicants did not provide consistent accounts of the circumstances in India.  As the Tribunal rejected the applicant’s association with the MIM, it rejected his claims that he was targeted by the TDP and that he was attacked by them.  It did not believe that if he returned to India he would be the subject of any persecution then or in the immediate future.

11. On 5 May 2009 the applicant filed an application for review of the second decision of the Tribunal with this court.  He provided four grounds upon which he claimed the Tribunal had fallen into jurisdictional error.  The first ground was that the Tribunal did not consider the medical condition of the second applicant and the Tribunal also did not assess all aspects of the claim.  This claim was particularised as follows:

    (i) The first named applicant claims that the contradictions in the evidence provided by him and his wife can be attributed to his wife’s memory loss.  He has offered an opinion that his wife is mentally unfit to provide evidence.

    (ii) Even if the Tribunal were to accept his opinion, and disregard the second named applicant’s evidence, the contradictions in his own evidence remain.  But the Tribunal did not provide details.

    (iii) It has formed the view that the applicants provided contradictory evidence regarding their difficulties (nothing mentioned here) in India.

12. There was no evidence provided by the applicant to the Tribunal which would indicate that his wife’s evidence was in any way to be doubted.  It was the applicant himself who promoted his wife as a potential witness.  It was only when the contradictions were pointed out to him that he made the claims that he did.  The Tribunal considered those claims and essentially rejected them but noted that even if it had not done so the contradictions in the applicant’s evidence still remained.  The Tribunal was entitled, in assessing the merits of the applicant’s claim, to consider and assess the merits of the evidence being given on his behalf.  It could not be said that it did not take into account his representations about his wife’s mental condition but it was perfectly entitled to reject those representations in the absence of any evidence that she had lost her memory or that she was mentally unfit to give evidence.  The other two particulars of the claim appear to me to be unsustainable.  The Tribunal did not have to repeat the details of the contradictions in the applicant’s evidence that it had already set out and which have been set out in detail in the extract from the decision of the first Tribunal.

13. The second claim made by the applicant was a complaint that the Tribunal expected more information about MIM than the applicant was able to give.  This is a claim for merits review which this court cannot entertain.  The third ground traverses the same concerns and cannot be dealt with by the court for the same reason.  To the extent that it makes some comment about the Tribunal not wanting to pay full attention to the applicant, which could be construed as a complaint of bias, it is not properly particularised and does not meet the tests laid down in WAKS v Minister for Immigration [2006] FCAFC 32 at [30] per Nicholson, Lander, and Siopis JJ, nor the test for apprehended bias considered by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425 at [27 - 31].

14. The fourth ground repeats that the Tribunal made its decision on the basis of evidence which came from a witness who had a medical condition and the Tribunal did not consider the doctor’s certificate. The doctor’s certificate referred to is found at [CB 160]. It merely indicates that the applicant’s wife did have a stillborn child in August 2007 but went nowhere towards indicating that evidence which she might give in April 2009 could be impugned by reason of her mental condition.

15. Before me today the applicant said that when he and his wife were interviewed by the Tribunal they were interviewed separately. It transpired that what he meant was that although they came into the Tribunal together they were separated when they were giving evidence. Provided the Tribunal ensures that each applicant is aware of the evidence given by the other, and any inconsistencies arising therefrom, there is no breach of s.425 in dealing with a hearing in this way, per Jagot J, SZJZB & Anor v Minister for Immigration [2008] FCA 1731 at [7]. There is no breach of any other of the requirements for procedural fairness set out in division 4 of the Act provided a letter under s.424A is sent to the parties setting out the required matters and this was done on 11 March 2009 [CB 156].

16. On 17 September 2009 there was filed at this court a submission on behalf of the second applicant.  Regrettably, it did not reach my chambers until about 28 September.  The submission makes reference to certain difficulties between the first and second applicant which I have no need to expand upon in these reasons.  The court has advised the second applicant that the matters raised in that submission do not impinge in any way on the decision of the Tribunal and that even if they constituted grounds for applying to the Minister for reconsideration of her claim to remain in this country this was not a matter with which the court could deal.  At the hearing today she was assisted by Mr Neagle, a legal practitioner, who kindly offered to assist her outside the court.  He noted the matters raised by the court in relation to the submission and may provide her with further assistance if he believes it is warranted.  But given that so far as the Tribunal is concerned the second applicant was not a person who had her own claims to be a person to whom Australia owed protection obligations her fate must rest with that of her husband.

17. As I am unable to find that there are any grounds upon which I could say that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions and made its decision the application shall be dismissed and the applicants must pay the respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  22 October 2009