SZJZV v Minister for Immigration
[2007] FMCA 2013
•11 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2013 |
| MIGRATION – Review of Refugee Review Tribunal decision – adverse credibility finding – no failure to consider the applicant’s claims – no evidence of bias on the part of the Tribunal – impermissible merits review – choice and use of country information a matter for the Tribunal – no denial of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.65, 36(2), 424A |
| SZJSA v Minister for Immigration and Citizenship [2007] FMCA 1891 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 66 ALR 299 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 |
| Applicant: | SZJZV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 54 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 August 2007 |
| Date of Last Submission: | 14 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 8 January 2007, and amended on 27 June 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 54 of 2007
| SZJZV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 8 January 2007, and amended on 27 June 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 30 November 2006 and handed down on 19 December 2006, which affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.
Background
The first respondent has filed a bundle of relevant documents in this matter (the Court Book (“CB”)) from which it can be discerned that the applicant is a citizen of India who claimed to be of Roman Catholic faith. He arrived in Australia on 2 May 2006 and on 26 May 2006 applied for a protection visa. (The application is reproduced at CB 1 to CB 17 with annexures.) On 24 June 2006, a delegate of the respondent Minister refused to grant the visa, and on 20 July 2006 the applicant applied to the Tribunal for review of the decision (CB 27 to CB 30). A statement from the applicant was attached to that application (CB 31).
The applicant attended a hearing before the Tribunal on 23 October 2006. The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 60.8 to CB 62.8). The Tribunal also wrote to the applicant by letter dated 25 October 2006 seeking his written comments on certain material that it said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 44 to CB 46). The applicant sought an extension of the time within which to respond to this letter, in addition to providing a copy of a letter from his father (CB 47 to CB 48). The Tribunal decided not to grant an extension of time (CB 49 to CB 50), and it proceeded to make its decision (CB 55 to CB 71).
The applicant’s claims to protection
The applicant’s claims to protection arise from his fear of harm from a gang (known as “rowdies”), and from a “Mr Swami Ji,” the “mastermind” behind the rowdies, who had been responsible (at the direction of a local politician) for the murder of a person in September 2004 in a Hindu temple. The applicant claims that he had informed on the whereabouts of this gang to police and that while on bail, the gang members sought retribution against those who had informed on them, including the applicant. At the hearing before the Tribunal, the applicant made a further claim, for the first time, that while he had been at college (in 2000), he had fallen in love with a Hindu girl whose father had threatened to kill him.
The Tribunal
The Tribunal did not accept that that there had been a relationship with a Hindu girl as the applicant had provided no evidence apart from the oral evidence he gave at the hearing, and further, it found this evidence to be “not credible or plausible” given that the evidence changed in the “course of the hearing.” Nor did the applicant give any reasons as to why this claim was not included in the original application, or provided to the Tribunal prior to the hearing (CB 68 .3). Further, the Tribunal, while it accepted that a murder had occurred in September 2004, and that “rowdies” appeared to be implicated in the murder, and that a politician had been arrested, it did not accept that the applicant had been the informer as claimed. The Tribunal found the applicant’s oral evidence to be “inconsistent and not credible” (CB 68 .7).
The Tribunal then went on to consider the alternative in the event that it was wrong in this finding, and the applicant had been the informer (CB 68.9). In these circumstances the Tribunal found that adequate state protection by way of the police was available to the applicant (CB 69.3). On this basis, the Tribunal found that there was nothing in the material before it, including the information provided by the applicant, which would enable it to find that the applicant faced a real chance of persecution in the future for a Convention reason (CB 69.6). Notwithstanding this finding, the Tribunal again went on to consider the alternative in the circumstance that it was wrong, and found that it would be reasonable for the applicant to relocate to another state in India to avoid the harm that he feared (see CB 69.7 to CB 70.7). In all therefore, the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and it affirmed the decision under review (CB 70).
Application to the Court
By way of amended application made on 27 June 2007, the applicant put forward the following grounds, with particulars:
“1.That the decision of the Refugee Review Tribunal (‘the Tribunal’) was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or ‘integers’ central to the applicants’ claims;
2.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars of Grounds
a. The Tribunal did not consider the applicant as a member of a social group comprising those who had given information to police relating to a gang involved in the murder of a prominent religious figure;
b. In relation to a. above, the Tribunal did not consider the applicant’s claim that another informant had been abducted by the gang.
c. The Tribunal accepted the applicant’s claims that the murder had taken place.”
Prior to the hearing, the applicant filed written submissions which did not appear to address the grounds as pleaded in the amended application, but provided a lengthy list of additional complaints about the Tribunal’s decision. I also have before me the first respondent’s outline of submissions filed on 7 August 2007. During the course of the hearing, the Court raised an issue relating to s.424A with the first respondent, and subsequent written submissions were filed by the first respondent and by the applicant, much of which repeated what was in the first set of written submissions.
The hearing before the Court
At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Tamil language. Ms A Mitchelmore of Counsel appeared for the first respondent.
At the hearing, the applicant stated that the Tribunal was biased because it would not let him live in Australia, and requested that the Court provide him with justice and to return his matter to the Tribunal so that he could obtain justice.
The applicant stated that a friend had assisted him in drafting the first set of submissions which were before the Court at the hearing. The applicant was unable to assist the Court further, and for example, demonstrated no understanding of how the reference in the submissions to the “case of ‘Muin’” (paragraph 8 of the written submissions) was relevant to, or could assist, his case. I cannot help but note that these submissions were to a very large extent similar to written submissions in a matter recently considered by the Court (SZJSA v Minister for Immigration and Citizenship [2007] FMCA 1891 (“SZJSA”)). These submissions were also identical to grounds set out in an amended application, and were also identical with what was presented to this Court recently in SZKNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1439. (See also the “postscript” at [59]-[64] in SZJSA.)
Both sets of written submissions filed by the applicant (in particular the first) are in many ways unhelpful to the applicant in prosecuting his case before the Court as to a large extent, they are not referable to the Tribunal’s decision. Nonetheless, given that the applicant is unrepresented before the Court, I will deal with each of the complaints as stated in the applicant’s documentation.
Grounds One and Two in the Amended Application
The first and second grounds in the amended application assert that the Tribunal failed to properly exercise its jurisdiction in that it failed to take into account certain relevant considerations which the applicant said were central to his claims. These considerations were mainly that:
a)the Tribunal failed to consider that the applicant was a member of the social group comprising those who had given information to police relating to the rowdies, who were involved in the murder of a prominent religious figure;
b)that it did not consider the applicant’s claim that another informant had been abducted; and
c)that the Tribunal accepted the applicant’s claims that the murder had taken place.
That the applicant states that the Tribunal accepted his claim that the murder had taken place is plainly not a complaint about the Tribunal’s decision. I therefore saw “(c)” in his particulars as being the basis for submitting that, notwithstanding that the Tribunal accepted the applicant’s claim that the murder had taken place, it did not consider his circumstances as a member of a social group, being those who had given information to police, and that the Tribunal failed to consider his claim that another informant had been abducted by the gang.
On its face, the Tribunal’s decision record, that is, its analysis and reasoning, presents some difficulty as to the nature of various findings made by the Tribunal. The Tribunal rejected the applicant’s claim to have been an informer on the rowdies gang. Yet it then went on to consider the alternative in the event that, as it said, it was wrong, and that he was an informer. Further, in considering the alternative, it found that the state in India could provide adequate protection. Nonetheless, it again went on to consider, if it was wrong in this finding, whether it would be reasonable to expect the applicant to live elsewhere in India away from his home state of Tamil Nadu and found ultimately that it was.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), the High Court set out what has become to be known as the “what if I am wrong approach” to the assessment of whether an applicant has a well-founded fear of persecution for a Convention reason. The exercise of the Tribunal’s function clearly involves it in considering each claim, and integer or aspect of a claim, and to weigh the evidence and material before it, and to make findings upon which it may base its conclusion of whether or not an applicant’s fear of persecution for a Convention reason is well-founded. If such a finding is not made with appropriately sufficient confidence, that is, if it is attendant with such a degree of doubt, then the Tribunal may need to consider the alternative that its finding may be incorrect, and then consider the alternative to determine whether an applicant has a well-founded fear. (See in particular Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), Guo, Abebe v the Commonwealth (1999) 168 ALR 1.) This was further explained by a Full Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (“Rajalingam”), where Sackville J, with whom North J agreed, stated that there are cases in which there could well be circumstances in which the Tribunal must take into account the possibility that past events had occurred, even in circumstances where it finds those past events probably did not occur.
While what is clear is that if the Tribunal has no real doubt that its findings are correct, then it is not bound to consider whether its findings might be wrong, the issue is “its apparent confidence in its conclusions” (see Rajalingam at 239-240).
In submissions, Ms Mitchelmore submitted that while the Tribunal had accepted that a murder had taken place, and that the rowdies and their political leader were implicated, that its “primary finding” was that the applicant was not an informer in relation to the rowdies’ involvement in this murder, and that such a finding of fact cannot be the subject of challenge in this Court (with reference to Wu Shan Liang). Ms Mitchelmore’s submission was that although the Tribunal went on to make further findings on the alternative basis, that it was not necessary for it to do so.
The Minister relies on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 66 ALR 299 for the proposition that the Tribunal only needed to consider those matters that it was bound to consider, and that the particulars of the considerations that the applicant now says the Tribunal failed to take into account, go to the “secondary line of reasoning” in which the Tribunal engaged, and that even if the applicant could establish jurisdictional error in the Tribunal’s approach in that part of its reasons, the principal factual finding and conclusions based on that finding would remain. Therefore, this finding that the applicant was not an informer was a sufficient and independent basis on which the decision to affirm the delegate’s decision, insofar as it related to the claim of fear from the rowdies, could be sustained.
If the Tribunal was confident in its finding that the applicant had not informed on the rowdies, then some question arises as to why it felt the need to go on and consider the alternative. While it is not wrong in itself to have done so, the fact that it did do so does engage the question as to whether what has been described as the “primary finding” was therefore attendant with sufficient doubt as to have caused the alternative to be considered.
However, on balance, and on a fair reading of the Tribunal’s analysis, I agree that the Tribunal’s finding that the applicant was not an informer was not made with such doubt as to have required the Tribunal to consider the alternative. The Tribunal’s reasoning in this regard is plain. The Tribunal found the applicant’s evidence to be inconsistent and not credible. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred in the hearing. From this account, it is clear that the applicant gave a number of different accounts as to the circumstances by which he claimed to have been an informer. For example, at first he stated that he was the only informer, then contradicted himself and stated that six, and later five, others were informers with him, and further that he gave no answers to “several questions and refused to answer others.” It was the inability to be satisfied as to the applicant’s evidence in this regard that led the Tribunal to reject the claim that he was an informer.
I agree with Ms Mitchelmore that this was a finding that was open to the Tribunal on what was before it, and that this is not a finding that can be, in that sense, subject to review by this Court (Wu Shan Liang). I also agree that this finding is sufficient to deal with the applicant’s complaint that the Tribunal did not consider him as a member of a social group comprising those who had informed on the rowdies. Plainly, if the Tribunal found that he was not an informer, no consideration of whether he was a member of any such social group was necessary.
Nor, for that matter, can I see error in the Tribunal’s approach to its consideration of the circumstance if the applicant had been an informer. The applicant did initially claim in the statement attached to his protection visa application (see CB 16.7) that “five people” were detected by the rowdies gang as “the people behind their arrest and forwarding information to the police.” The Tribunal repeated this statement verbatim in its own decision record (see CB 59.8). Given the applicant’s own evidence initially at the hearing that he alone was the informer, there is some doubt whether it can be said, that there were circumstances arising from his claims that may have required the Tribunal to consider his possible membership of a social group for the purposes of the Convention. Whatever the situation in this regard, I agree with Ms Mitchelmore that the only common link between the alleged informers (whether five or six) was their claimed shared fear of persecution at the hands of the rowdies, which the Tribunal plainly found was not for a Convention reason, but was a fear of revenge being taken by the rowdies because of their having informed the police of the rowdies’ location. (See Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; (1997) 142 ALR 331, and further, Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; (2004) 206 ALR 242.)
The applicant’s complaint that the Tribunal did not consider his claim that another informant had been abducted by the gang does not succeed for the same reason as set out above. The applicant had certainly made reference to a “Mr BJ,” who was one of the friends who had been abducted (see CB 16.10), and this again was reproduced in the Tribunal’s decision record in setting out the applicant’s claims (see CB 59.10 and CB 60.1). Again there are doubts about the applicant’s subsequent evidence in this regard, given what is reported as his statements to the Tribunal. That the Tribunal’s finding that the persecution, even if the applicant was a member of this group, was not for a Convention reason, included and subsumes the applicant’s evidence as to what he said occurred to Mr BJ (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]).
Complaints set out in written submissions
The two sets of the applicant’s written submissions contain identical paragraphs which themselves are identical in wording to complaints and submissions (sometimes presented by way of amended application) often seen in this Court. Nonetheless, given that the applicant was unrepresented before the Court, I considered each of the complaints on their face to see if a jurisdictional error in the Tribunal’s decision could be discerned.
The submissions of 3 August 2007 assert actual bias on the part of the Tribunal. The applicant appears to allege that given the evidence before the Tribunal and the findings of the Tribunal in relation to the matters which are subsequently asserted to show jurisdictional error on the part of the Tribunal, reveal that the Tribunal was biased. I saw this as a complaint that the Tribunal’s failure to accept the applicant’s claims and to find for the applicant, given the evidence that he had provided, could only be because of its bias against him.
Wherever alleging bias, or for that matter lack of good faith, the applicant must comply with the requirement that such allegations must be “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]; see also Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 (“SBBS”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).
The applicant puts forward no evidence to support such a serious claim. He refers only to the Tribunal’s findings in its decision record. It is a rare and extreme case for an allegation of bias, or lack of good faith, to be apparent from nothing else than the reasons for decision of the decision maker (SBBS). It will be an exceptional and rare case where bias can be demonstrated solely from the Tribunal’s decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). On what is before the Court, this ground is not made out.
In paragraph two of the submissions of 3 August 2007, the applicant complains that the Tribunal failed to take into consideration the threat to his life and liberty, and to consider the impact on him because of his “religious background.” In relation to the complaint of the Tribunal’s alleged failure to consider the threat to his life and liberty, I cannot see in the circumstances of what is before the Court now that this rises above a request for impermissible merits review (Wu Shan Liang). The Tribunal plainly looked at all of the applicant’s claims, including the threats of harm (in context of his life and/or liberty) as they were said to rise from the rowdies, and in relation to the allegation concerning the father of the Hindu girl with whom he said he had fallen in love in 2000.
The Tribunal plainly addressed the issue of the claimed relationship and found that there had not been such a relationship (CB 68.3). It addressed the issue of the fear of harm from the rowdies by finding that the applicant was not an informer, and in the alternative, that even if he had been, any such harm that he feared was not for a Convention reason, that adequate protection would be available to him, and that he could reasonably relocate to another state away from Tamil Nadu.
Other than the religious overtones linked to the murder which occurred in a Hindu temple, there is nothing else and certainly not anything of a nature to show that the applicant feared harm for a religious reason in any of the applicant’s claims to have caused the Tribunal to have dealt with any aspect of his claims as it may be said to relate to the Convention ground of religion. In fact, the applicant’s statement (see CB 16.3) makes it plain that he did not belong to any “political or religious group” but that his opposition to the leader of the rowdies was “against the misdeeds conducted by Mr Swami Ji.” The only other possible connection is that as a Catholic, he had fallen in love with a Hindu girl. Again the Tribunal comprehensively dealt with the applicant’s claim when it found that there had not been any such relationship. This complaint does not succeed.
In paragraph 3 of the written submissions of 3 August 2007, and paragraph 2 of the submissions of 31 August 2007, noting that in both under the heading of “law” and also with reference to s.91R(2), the applicant complains that the Tribunal failed to properly consider whether the applicant would suffer “serious harm” as set out in s.91R(2).
The applicant made two sets of claims. The first dealing with the murder, and the fear of harm from the rowdies, and the second, the fear of harm from the father of the Hindu girl with whom he said he had a relationship in 2000. To the extent that the applicant’s complaint is that the Tribunal failed to understand the relevant test that it was required to apply I note that the Tribunal reminded itself of the relevant test in its decision record by what is set out at CB 57. The Tribunal rejected the claim that the applicant had ever had a relationship with the Hindu girl. It gave reasons for this based on both the lack of credibility of the applicant’s oral evidence, the lack of plausibility of this evidence, his failure to have included this claim prior to the hearing, and the scarce and unsubstantiated evidence given by the applicant. This finding was open to the Tribunal on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”) at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 (“W148/00A”) at [64]-[69] per Tamberlin and Nicholson JJ). Given that the Tribunal found that there was not a real chance of harm to the applicant, and given its finding that the claimed relationship had not occurred, then there was no requirement that the Tribunal engage in any additional consideration of whether the harm feared was “serious harm” for the purposes of s.91R. Simply, the Tribunal found that the claim of fear of harm was not credible or plausible.
Similarly, in relation to the rowdies, the Tribunal found that the applicant was not an informer on the rowdies as he had claimed. Again, this did not require the Tribunal to address the issue of “serious harm” beyond having made the finding that it did. But even in considering the claims made by the applicant in the context that he was an informer, the Tribunal found that adequate state protection was available and that in any event the applicant could reasonably relocate to another part of India. This complaint therefore does not assist the applicant.
Paragraph 4 in the submissions of 3 August 2007 (in identical terms to paragraph 3 of the subsequent submissions), complains about the Tribunal’s use of country information. The applicant’s complaint in this regard, is in wording identical to a complaint often seen in this Court. The difficulty is that the lack of specificity in this generally expressed complaint makes it difficult to determine exactly what the applicant is complaining about. To the extent that he complains that the Tribunal was preoccupied and did not have a fresh look, and to the extent that this may imply bias on the part of the Tribunal in that it did not bring an open mind to the proceedings, I have already dealt with this issue above. Further, it is not clear to what the applicant refers when he says that the Tribunal “failed to consider the Amnesty International Country Information.” There is nothing before the Court to show that the applicant referred the Tribunal to any such report. Nor does the applicant say how the Tribunal’s failure to refer to any such report reveals jurisdictional error on its part.
That the Tribunal made some reference to country information is clear. The Tribunal has set out country research in its decision record. In relation to the murder that took place in the temple the Tribunal’s account of what occurred at the hearing reveals that it specifically referred the applicant to relevant newspaper reports. The Tribunal used country information as a background to understanding the role of rowdies, the circumstances surrounding the claimed murder (which the Tribunal accepted had occurred), and general information on law and order in India.
The Tribunal rejected the applicant’s claims to have been in a relationship with the Hindu girl, not for any reason based on independent country information, but simply because it did not accept the applicant’s evidence in this regard. The Tribunal rejected the applicant’s claim that he was the informer who therefore had incurred the wrath of the rowdies based on his own inconsistent and not credible evidence. None of this involved reference to independent country information. The Tribunal plainly referred to newspaper reports when dealing with the issue of adequate state protection (in the event that the applicant had been an informer), and in relation to the issue of relocation in India. In both circumstances, this was a course open to the Tribunal and the weight to be placed on such country information is of course a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [32]). This complaint does not succeed.
In paragraph 6(a) of the written submissions of 3 August 2007 (and paragraph 4(a) of the subsequent written submissions), the applicant asserts that the Tribunal placed too high an onus of proof on him and failed to give him the “benefit of the doubt.”
The Tribunal operates within a statutory regime (with particular reference to ss.65 and 36(2) of the Act), that requires in the case of a protection visa matter that the Tribunal reach a requisite level of satisfaction that the applicant in effect meets the definition of refugee as set out in Article 1A(2) of the 1951 Convention relating to the status of refugees (see United Nations Treaty Series Volume 189 page 137). (See SJSB v Minister to Immigration Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and Minister for Immigration Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)
Although the submissions are silent on this point, in all probability the author of the these submissions derives the concept of “benefit of doubt” from paragraphs 203 and 204 of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria For Determining Refugee Status (reedited Geneva January 1992) (“the Handbook”). The guidelines provide for situations where it is difficult for a refugee to “prove every part of the case,” and that it is necessary therefore, in a guideline directed to those who determine claims to refugee status, to give the applicant the benefit of the doubt. The guidelines emphasise however, that the benefit of the doubt should only be given after all available evidence has been obtained and checked, and that the determiner of refugee status (the “examiner”) is satisfied as to the applicant’s credibility.
The Handbook as a whole, however, remains only a useful guide (notwithstanding that some parts have been adopted by Courts in Australia), and does not have binding authority in Australia law (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Dawson J, Semunigus v Minister for Immigration Multicultural Affairs [1999] FCA 422 per Finn J.).
As already stated, the Tribunal must reach a requisite level of satisfaction that the applicant meets the definition of refugee. Before the Tribunal, it is for the applicant to persuade the Tribunal that all the relevant statutory elements are made out (Guo). There is no obligation on the Tribunal to uncritically accept any or all of the applicant’s assertions (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). This is not inconsistent with the appropriateness of the Tribunal adopting a liberal attitude concerning “proof” of persecution.
In the case currently before the Court, the Tribunal accepted some aspects of the applicant’s evidence. For example, that the murder that had occurred in the religious temple in September 2004 had occurred. Equally as plainly, it rejected other parts. But it is within the proper exercise of the Tribunal’s function that it is entitled to accept or reject or give weight to the evidence put forward by the applicant as it thinks appropriate in all the circumstances (Lee v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 46 at [27]). The Tribunal’s conclusion that the applicant’s oral evidence in relation to the relationship with a Hindu girl in 2000 was not credible or plausible, and that had the threat been genuine, it would have been raised by the applicant at an earlier time, and that the evidence given by the applicant was “scarce and unsubstantiated,” was plainly open to the Tribunal in all the circumstances. Further, the Tribunal’s rejection of the applicant as being an informer on the rowdies was also open to it, given the view that it took of his oral evidence which it found to be inconsistent and not credible, and his refusal and evasion in answering other questions. This was the view that the Tribunal took that other aspects of his evidence in this regard were not plausible. These are factual findings for which the Tribunal gives reasons and are consistent with its role as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh).
The two central findings that the applicant had not been in relationship with a Hindu girl in 2000, and had not been an informer on the rowdies, are sufficient in themselves, given that they deal with the totality of the applicant’s claims to support and substantiate the Tribunal’s reason for finding that the applicant was not a refugee and for affirming the decision that was the subject of the review. The Tribunal’s findings were plainly open to it on what was before it. No error is demonstrated in these circumstances (Kopalapillai at 558-559, W148/00A at [64]-[69], per Tamberlin and Nicholson JJ). The Tribunal’s findings adverse to the applicant were open to it, it gave reasons. In these circumstances, it is difficult to see this claim as other than the applicant seeking impermissible merits review (Wu Shan Liang).
In paragraph 6(b) of submissions of 3 August 2007 (paragraph 4(b) of the subsequent written submissions), the applicant complains that the Tribunal “left out individual elements of the applicant’s claim.” As stated, this complaint does not succeed if what is asserted is that the Tribunal failed to deal with integers of the applicant’s claims. As I have already set out above, the Tribunal did deal with all of the applicant’s claims as put by him.
However, when this statement is looked at with what follows at sub-paragraph (b), it appears that what the applicant is claiming is that the Tribunal only looked at the individual elements of his claims and determined whether the claims amounted to persecution. That is, it dealt individually with the various parts of his claims, but did not look at his claims as a whole to determine whether this would amount to persecution.
The Tribunal is required to assess whether the applicant’s fear of persecution is well-founded. This not only requires consideration of relevant claims, but in addition any cumulative effect when these are taken together. There may be situations of course, that when each claim is considered individually it does not give rise to a well-founded fear of persecution. But when some or all of the claims are taken together, the situation may change.
But in the circumstances of this case, I cannot see that this complaint can succeed. The Tribunal comprehensively went through each aspect of the applicant’s claims. Indeed this Tribunal (at the risk of being found to have made findings attendant with doubt), not only considered each of the applicant’s claims and made clear findings free from doubt, but then, in what was probably an overzealous attempt to be comprehensive, or perhaps even fair to the applicant, considered alternatives when plainly there was no need to do so. Ultimately, the Tribunal found: “having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee’s Convention” (CB 71.3). The Tribunal accepted some aspects of his claims, plainly, and comprehensively rejected other key aspects. It considered alternatives to its findings adverse to the applicant, and plainly, when taken together, all of the evidence was not such as to persuade the Tribunal to the applicant’s favour. This complaint does not succeed.
The applicant’s complaint at paragraph 7 of the submissions of 3 August 2007 and paragraph 5 of subsequent submissions (see also below), complain that the Tribunal failed to see that (the reference is to “applicants” but there is only one applicant before the Court), the applicant satisfies the elements required to satisfy the Refugee Convention definition. Plainly, this is nothing more than a request for impermissible merits review (Wu Shan Liang).
To the extent that paragraph 5 in the applicant’s subsequent written submissions makes reference to the Federal Magistrates Court having failed to note (the reference is to “not”) that the applicant satisfied the definition of refugee, whoever authored these submissions for the applicant plainly “copied” these paragraphs from an appeal to the Federal Court from this Court. This Court has not made any such decision in respect of the applicant. Secondly, whether this Court fails to note that the applicant satisfied the definition of refugee or not does not assist the applicant as this is not its function, and is of course the province of the Tribunal as the “decision-maker par excellence” (Durairajasingham). In any event it seeks yet again impermissible merits review (Wu Shan Liang).
Paragraph 8 of the written submissions of 3 August 2007 asserts in part that, “I strongly believe that there is a lack of procedural fairness in my case as was in the case of Muin’.” Given this professed strong belief, I specifically asked the applicant at the hearing before the Court to explain this complaint. He was unable to do so and in fact had no idea as to the nature of what was being asserted, and as set out above, it was at this point that the applicant explained that the document had been drafted by someone else.
To the extent, however, that taken on their face the submissions claim a lack of procedural fairness and that the applicant’s case is the same as that in “Muin” (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 (“Muin”)), the submission asserts that the applicant was denied procedural fairness because he had been misled into believing that the Tribunal had read some information contained in the “Part B” documents. Unfortunately for the applicant there is nothing before the Court now to show that he had in fact been misled into believing that the Tribunal had read information which had been in the “Part B” documents, presumably a reference to “Part B” of the protection visa application. Nor, for example are there any relevant agreed facts before the Court now as was the situation in Muin. I also note that this is a matter to which s.422B of the Act applies (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35). In all therefore, this complaint does not assist the applicant.
Both sets of submissions make reference to a number of sections of the Migration Act but do not, other than for s.91R with which I have already dealt, explain the relevance of these sections to the applicant’s application currently before the Court. The references to ss.414 and 415 do not assert error on the part of the Tribunal, nor can I otherwise see that they assist the applicant.
The applicant also makes reference to s.430. The submissions claim that the Tribunal failed to analyse properly the “future harm” if the applicant were to return to India. On what is before the Court now, this mere assertion does not succeed. The credibility of the two sets of claims put forward by the applicant (the relationship with the Hindu girl and the wrath of the rowdies were plainly rejected by the Tribunal on credibility and implausibility grounds). Plainly also in the alternative, the Tribunal found that if the applicant were to return to India, adequate state protection would be available to him in the event that his claims of harm were genuine (which the Tribunal found they were not), and that in any event he could be reasonably expected to live elsewhere other than in his home state of Tamil Nadu. The Tribunal was plainly focused in making these findings on the situation were the applicant to return to India. This complaint does not succeed.
By way of the paragraph 5 of the written submissions of 3 August 2007 (filed prior to the hearing before the Court), the applicant complains that the Tribunal breached the obligations set out in s.424A because it did not give to him before the Tribunal hearing, hearing the information that the Tribunal had regarding Tamil Nadu in India, and that the Tribunal used this information as part of its decision, and he refers to what is set out at CB 65 to CB 67.
Further Consideration
During the course of the hearing before the Court, I gave both parties the opportunity to file further written submissions in relation to any possible breaches of s.424A. The applicant’s subsequent written submissions (I understood the initial reference to “s.424” to be in error and given the context the applicant clearly was referring to s.424A), again assert a failure by the Tribunal in relation to the “independent evidence” and adds a further alleged breach of s.424A in that the Tribunal, as far as it can be inferred from what is put in these submissions, did not put to him its views about the “genuineness of my statements about my harassment of systematic nature.” The submissions state that the Tribunal used independent information and took a particular view of information that he had provided (presumably by way of his evidence), and did not mention to him that it was going to use this adverse information to decide against him, presumably this was also said to be in breach of s.424A.
Firstly as Ms Mitchelmore submits in subsequent written submissions, the nature of what constitutes “information” for the purposes of s.424A and the limited scope of the application of this section must be seen in light of the High Court’s decision in SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”).
Second, the applicant complains that the Tribunal did not give him the independent country information concerning Tamil Nadu and India as set out at CB 65 to CB 67. To the extent that it may be said that the Tribunal made reference to country information relating to rowdies, the political situation in Tamil Nadu, law and order in India, the murder on 3 September 2004, and political party power in Tamil Nadu, none of this “information” is specifically about the applicant personally or another person, nor is it about a class of persons of which the applicant or another person is a member (s.424A(3)(a)), such as to make such information fall within the exception contained in s.424A(3)(a) from the obligations set out in s.424A(1) (QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22], Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14]).
Further the Tribunal’s adverse view of the applicant’s evidence that he provided at the hearing, insofar as it relates to its finding that the applicant had not been in a relationship with a Hindu girl, and that he was not an informer on the rowdies, were in any event findings based on information that the applicant himself had put to the Tribunal at the hearing. The only relevance of country information in regard to these findings was that the Tribunal accepted that there had been a murder in September 2004, but as explained by the High Court in SZBYR at [18] with reference to VAF v Minister for Immigration Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”), the Tribunal’s disbelief of the applicant’s evidence is not “information” within the meaning of s.424A(1). In this regard, that obligation is not enlivened in these circumstances.
At CB 68, when dealing with the claim of the relationship with a Hindu girl in 2000 (CB 68.2 to CB 68.4), the Tribunal rejected the applicant’s claim that there had been such a relationship for a number of reasons, including that the claim was not credible or plausible. But the Tribunal also said that, the claimed threat from the Hindu girl’s father was not included “in the earlier application.” Presumably, this is a reference to the protection visa application. The Tribunal reasoned that, if the threat was so severe as now claimed by the applicant that it necessitated his “constantly moving around,” that it would have been put in that earlier application. Again with reference to SZBYR, as Ms Mitchelmore submits, the absence of any reference to this claim in the applicant’s protection visa application was not “information” which in advance of the Tribunal’s reasons could be assessed as involving a rejection, denial or undermining of the applicant’s claim to be owed a protection visa, as was said in VAF and endorsed by the High Court in SZBYR.
The term “information” within the meaning of s.424A(1) does not contain within its meaning a noting by the Tribunal of the “absence of evidence.” The significance of the Tribunal’s finding in this regard was its highlighting of the fact that the applicant had not previously raised the claim. Given what was said by the High Court in SZBYR, s.424A did not require the Tribunal to put to the applicant the absence of information in the protection visa application about the claim made for the first time at the hearing, relating to his relationship to a Hindu girl in 2000. In all therefore, this complaint also does not succeed.
Although not directly raised by the applicant’s material before the Court, I did consider whether the applicant was afforded a fair hearing before the Tribunal in the context of s.425 and what the High Court relevantly said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
The determinative issue (see SZBEL at [44]) was the Tribunal’s disbelief of the applicant’s evidence at the hearing before it in relation to both his claims. The Tribunal reports that at the hearing it (CB 62.7):
“… put to the applicant that it was concerned about the many inconsistencies during the hearing and asked the applicant if there was anything further he wanted to say.”
Conclusion
I cannot discern jurisdictional error in the Tribunal’s decision as it is said to arise from what is in the applicant’s amended application, nor in the two sets of subsequent written submissions, nor otherwise. This application is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 11 December 2007
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