SZKAM v Minister for Immigration

[2007] FMCA 1231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAM & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1231

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal – no s.424A(1) obligation in respect of information upon which the Tribunal did not rely in affirming the decision under review.

Migration Act 1958, ss.91X, 424A

Applicant: SZKAM, SZKAN & SZKAO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 119 of 2007

Judgment of: Cameron FM

Hearing date: 27 July 2007

Date of Last Submission: 27 July 2007

Delivered at: Sydney

Delivered on: 27 July 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr. T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 119 of 2007

SZKAM, SZKAN & SZKAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an amended application dated 18 April 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 7 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 17 June 2006 refusing the applicants’ application for a protection visa.

2. Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicants’ names.

Background facts

1. Only the first applicant has made specific claims for a protection visa, his wife and child relying on their membership of his family.  For convenience, therefore, the first applicant will be referred to as the applicant in these reasons. 

2. Quoting from the letter from the applicant’s solicitor to the Minister’s department dated 14 May 2006, the Tribunal described the applicant as follows:

   The Applicant was born in Delhi and has two siblings who remain there.  He left school in 1988.  A large part of his childhood was spent in Rohtac, which is located about 70kms from Delhi in Harayana.

   … the applicant became principal of [business name given], which he operated from 1996 until the time that it closed in 2005 as a result of a combination of factors.  From 1989 to 1991 he studied at the MD University graduating with a Bachelor of Commerce.  (Court Book (“CB”) page 111).

3. The applicant claims to fear persecution in India because the police harass him as they suspect he was involved in the kidnapping of a baby.

4. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-8 of the Tribunal’s decision (CB 111-115). Relevantly, they are in summary:

   a)while the applicant was working at his business he noticed a young girl who worked in the shop across the road. She had the same surname as he and was of the same caste.  She would occasionally ask for money and said that she was an orphan, her father being murdered by her mother. She approached the applicant and asked him to provide her with some dowry and to present himself to prospective in-laws as her family member for the purpose of marriage.  The applicant complied out of a sense of charity and a marriage took place;

   b)the applicant continued to visit the girl’s home, which she shared with her grandmother and younger sister.  On one such visit, the girl’s mother attended with a young baby about twelve days old and explained that she was looking after the child for someone who had died.  A few weeks later the police attended the applicant’s workplace and accused him of being complicit in child stealing for profit.  When taken to the police station on a number of occasions from 28 April 2005, the applicant was beaten, mistreated, regarded as an organised criminal and a paedophile;

   c)the applicant found out that the girl’s mother was part of an organised gang.  The baby had been kidnapped from the Sanjay Ghandi Hospital and the woman was part of a wider child stealing gang.  The applicant was released after paying a 5,000 rupee bribe but the police attention persisted.  The police visits disrupted the applicant’s commercial activities and almost destroyed his marriage; and

   d)to further exacerbate the difficulties of the situation, the police insisted that the applicant be a witness against the gang or he would be prosecuted as one of them.  During this period he began to receive regular death threats from gang members.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). 

2. In reaching its conclusion the Tribunal found the applicant’s evidence to be inconsistent and implausible.  It did not find him to be a truthful witness and thus did not accept his material claims, including that the Indian police suspected that he was involved in the crime in question.

3. Secondly, the Tribunal found that the applicant had departed India unhindered by the Indian authorities in April 2006, which indicated that the Indian authorities were not adversely interested in the applicant.

4. In essence the Tribunal found:

   I do not consider the applicant to be a truthful witness.  I am of the view that the applicant fabricated his material claims … in an attempt to create for himself the profile of a refugee.  In dealing with this application the Tribunal has formed a firm view that the applicant lacks credibility and that his claims cannot be accepted.  (CB 116).

Proceedings in this Court

1. In his amended application the applicant asserts that the Tribunal acted in breach of s.424A of the Act. The applicant refers in this respect to a newspaper report provided by the applicant to the Tribunal and which is referred to in the Tribunal’s decision record. I find that the Tribunal did not act in breach of s.424A for the following reasons.

2. As para.1(a) of the amended application states, the newspaper report was provided by the applicant.  Certainly it was originally provided to the Minister’s department under cover of the applicant’s solicitor’s letter dated 9 June 2006 and thus, on that occasion, pre-dated the decision of the delegate.  However, that letter of 9 June 2006, with,

   
   

   I infer, its enclosure, was sent again by the applicant’s solicitor under cover of a letter dated 5 July 2006, this time to the Tribunal. As such the furnishing of that information falls within the exception set out in s.424A(3)(b) of the Act as information which the applicant gave to the Tribunal for the purposes of his application, with the result that there is no obligation under s.424A(1) for it to be re-served on the applicant for his comments.

3. The applicant submitted, in his amended application, that the Tribunal relied on the information contained in that newspaper account when arriving at its decision to affirm the delegate’s decision.  However, that misunderstands the Tribunal’s reasoning.  The Tribunal had concluded that the applicant lacked credibility and his claims could not be accepted because his evidence had been inconsistent and implausible.  This was the basis of the Tribunal’s findings.  The newspaper article in question was merely referred to by the Tribunal on the basis that it failed to corroborate the applicant’s version of events in the sense that the applicant had presented no evidence of a corroborating nature.  Thus, it could not be said that the information contained in the newspaper articles or the articles themselves were the reason or part of the reason for the Tribunal affirming the delegate’s decision.

4. For these reasons no breach of the section has been demonstrated and the other grounds set out in the amended application which are based on the s.424A claim do not need individual discussion as they rise and fall on the matters already discussed in these reasons.

Conclusion

1. Consequently, jurisdictional error on the part of the Tribunal has not been demonstrated. The application will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date:  10 August 2007