SZKBR v Minister for Immigration

[2007] FMCA 1712

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1712

MIGRATION – RRT decision – Indian claiming political persecution – conflicting claims presented in visa application and to Tribunal – general failure to be satisfied – whether sufficiently addressed all integers – no jurisdictional error – application dismissed.

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2

Applicant: SZKBR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG221 of 2007

Judgment of: Smith FM

Hearing date: 4 October 2007

Delivered at: Sydney

Delivered on: 4 October 2007

REPRESENTATION

Counsel for the Applicant: Mr G Sarginson

Counsel for the First Respondent: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,800. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG221 of 2007

SZKBR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in 2006, and applied for a protection visa on the ground that he feared persecution if he returns to India. He claimed that he had been training the cadets of a political youth group called Yuva Morcha (“YM”) at training camps in Kerala. YM and also the BJP and RSS became the target of violent attack from party workers of the rival CPI(M) party. He personally received threats after the murder of a political leader, and on a date in January 2006 an angry mob attacked his house and threw a bomb at the house, while he was absent. The police did not support him, but filed a report saying there was a “gas cylinder blast”. He then travelled to other parts of India, but could not settle, and came to Australia.

2. A delegate of the Minister refused the application on 29 August 2006. In his reasons, the delegate noted that the YM was the youth wing of the BJP, which was accused of targeting minorities especially Christians and Muslims, and that it was curious that the applicant, who was a Catholic, would be approached to undertake the training of its cadets.

3. On appeal, the applicant attended a hearing held by the Tribunal on 2 November 2006. According to the Tribunal’s brief description, he made a different claim of persecution arising from an association with the YM. He told the Tribunal that he had become aware of their attacks on members of the CPI(M) party, and had informed the police. As a result, he was threatened by YM members, who were responsible for throwing a bomb at his house on a date in February 2006.

4. When the Tribunal pointed out that this was significantly inconsistent with the claim made with his visa application, the applicant claimed that both groups were out to get him, and he also suggested that another factor in his persecution by YM members was that he was a Christian.

5. The Tribunal again put the inconsistency to the applicant in a written invitation for comment, suggesting that it reflected adversely on his overall credibility. The applicant’s only response was to forward to the Tribunal a newspaper report about an attack on a senior BJP leader, allegedly by CPI(M) workers, and he said he had been present with a YM group at the time.

6. In a decision handed down on 4 January 2007, the Tribunal affirmed the delegate’s decision not to grant a protection visa. It identified the claims originally made in the visa application and to the Tribunal, including in his letter to the Tribunal. Its reasons for finding that it was not satisfied that the applicant had a well‑founded fear of being persecuted for any of the Convention reasons were expressed concisely in one paragraph:

   The Tribunal accepts that the political conflict between CPI(M) and BJP/YM manifests itself on occasions in physical confrontation and violence between the parties’ respective members/supporters.  However, the Tribunal does not accept that the applicant has suffered persecution, as he has claimed, by either party for any of the Convention reasons.  The Tribunal bases this finding on the directly conflicting accounts given by the applicant in his written statement and at the hearing as to the identities of the perpetrators of the claimed persecution.  Based on this conflicting evidence relating to the applicant’s claimed past persecution, the Tribunal also does not accept that the applicant is likely to be persecuted for any of the Convention reasons should he return to India. 

7. As I would understand its reasoning, the Tribunal was not satisfied that the applicant had any history of suffering persecution in the manner claimed, by either of the parties he had identified as his persecutors, because it found his evidence to have been not believable as a result of his presenting markedly different histories.

8. The applicant now applies to the Court to set aside the Tribunal’s decision and to order it to reconsider his refugee claims. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have authority to decide whether the applicant’s refugee claims are true, nor whether he should be granted a protection visa or any other permission to stay in Australia.

9. The applicant has been assisted by counsel appointed under the free legal advice referral scheme, who has addressed his written and oral submissions at an amended application. A number of grounds are formulated, but essentially it was contended that the brevity of the Tribunal’s reasons should lead me to conclude that there were essential integers in the applicant’s refugee claims which were not addressed by the Tribunal, in accordance with its jurisdictional duty to review the applicant’s entitlement to a protection visa.

10. In particular, it is contended that this error is established by the absence of specific findings by the Tribunal going to various elements in his history, such as: whether the applicant was a member of YM; whether in fact he did inform police of illegal activities of YM; whether he was in fact threatened or attacked by YM members; whether the response of the police constituted adequate State protection; whether CPI(M) members threatened or attacked the applicant by reason of his membership of YM; whether an attack occurred on a BJP leader in the presence of the applicant; and whether the applicant’s religion had any relationship between the threats of violence he was allegedly subject to and the adequacy of the police response. It was argued that the absence of discussion on these matters suggested that the Tribunal had not thought about these elements in the applicant’s claims, citing well known principles considered in Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.

11. In response, the Minister’s submission is that the Tribunal’s finding that the applicant had not “suffered persecution, as he has claimed, by either party for any of the Convention reasons” in its general terms addressed the whole of the claims made by the applicant, and that its reference to the “directly conflicting accounts given by the applicant” sufficiently identified a single good reason for its general conclusion, being its adverse view of the applicant’s general credibility.

12. I accept that submission. This is a situation in my opinion where the background to the Tribunal’s critical paragraph suggests, rather than the contrary, that the Tribunal considered all the applicant’s evidence, and was able to reject all the details in his refugee claims on the basis of a general finding on credibility (cf. Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47] and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]).

13. Its inability to be satisfied as to any of the applicant’s claims to have suffered persecution for any reason, meant that it was unnecessary for the Tribunal to address issues of State protection, nor to engage in a characterisation of whether the reasons for harm suffered by the applicant were Convention reasons (compare WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [14]).

14. I am therefore not persuaded that any of the errors identified in the eight grounds of review set out in the amended application has been established. I am unable to find any legal error in the reasoning of the Tribunal, nor any evidence of a factual error revealing jurisdictional error.

15. I am not persuaded that the Tribunal’s decision was affected by jurisdictional error, and I must therefore dismiss the application.

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

Associate:  Lilian Khaw

Date:  15 October 2007