SZKEW v Minister for Immigration
[2007] FMCA 888
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 888 |
| MIGRATION – Findings of fact not reviewable – adverse finding of credibility is a finding of fact – rejection of fresh material. |
| Migration Act 1958 (Cth), s.474 |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Multicultural and Indigenous (1994) 34 ALD 347 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167; (1990) 96 ALR 354 |
| First Applicant: | SZKEW |
| Second Applicant: | SZKEX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 473 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 24 May & 1 June 2007 |
| Date of last submission: | 1 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr. G. Kennett |
| Solicitor for the Respondents: | Ms. B. Anniwell of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 473 of 2007
| SZKEW |
First Applicant
| SZKEX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 13 February 2007 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 10 January 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The first named applicant was born on 1 June 1657. His wife – who is the second named applicant in the proceedings – was born on 1 June 1959. Both applicants claim to be from India, of Gujarati ethnicity and Hindu faith.
The applicants have one son and five daughters residing in India.
The applicants arrived in Australia on 26 May 2006 and lodged an application for protection visas with the Department of Immigration and Multicultural Affairs on 9 June 2006. The applicant wife did not submit her own claims to be a refugee, but is included in the application of her husband (the “applicant”). In a statement accompanying the application, the applicant claimed that he and his family were physically attacked by “Muslims thugs” during and after the 2002 race riots in Gujarat (CB 30). The applicant claimed that he was specifically targeted after BJP and Vishwa Hindu sympathisers were seen at his home and because he contested the Sarpanch elections (CB 32-3). The applicant claimed also that the Indian police have not been able to provide any protection for him or his family (CB 34, 36-7).
This application was refused by a delegate of the first respondent on 7 September 2006 (CB 65).
On 27 September 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 66). The applicant gave oral evidence before the Tribunal on 7 December 2006.
On 10 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. After considering the applicant’s claims and evidence, the Tribunal found (CB 126-131) (highlighting added):
The applicant travelled to Australia on a passport from the Republic of India and claims to be a national of India. The Tribunal accepts that the applicant is a national of India and has assessed his claims against India as his country of nationality.
In assessing the applicant's Convention claims I am required to determine whether he has a well founded fear and if so whether what he fears amounts to persecution for a Convention reason.
When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant’s credibility. When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. That said, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Moreover, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451 , per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal did not find the applicant to be a truthful or credible witness for the following reasons.
The applicant’s claims at the hearing as to why he feared returning to India were completely different to the claims he had made in his protection visa application.
In his protection visa application the applicant claimed that while the violent incidents in Gujurat continued in 2002 he decided to contest the Sarpanch elections for the Panchayat. The applicant claimed that because he had decided to contest the elections he became a target for Muslims. He claimed that the Muslims burnt his harvest and threatened him telling him not to contest the elections. He claimed he went to the police and lodged a complaint. He claimed after he lost the election he went to the police and identified the Muslims who had attacked him. The applicant claimed that the Muslims came to his farm and attacked him and he had to be admitted to hospital. At the hearing the applicant claimed that it was not him who stood for the elections for the Panchayat it was his wife. The applicant claimed his wife defeated another woman candidate who was a Muslim. The applicant claimed everything was fine from 2002 -2006. The applicant claimed that when his wife completed her term office in 2006 Muslims burnt his crops and threatened him and his wife. When the Tribunal put to the applicant at the hearing that in his protection visa application he claimed that he had decided to contest the Sarpanch elections for the Panchayat but at the hearing had claimed that it was his wife who stood for the elections the applicant claimed that he had taken an oath at the beginning of the hearing so he had to tell the truth. When the Tribunal asked the applicant why he was telling the truth today but had not provided a truthful account of what had happened to him to the Department the applicant again claimed that he had taken an oath at the beginning of the hearing. The applicant did not make any claims that the inconsistencies in his story was due to the way his story had been transcribed by his friend’s son. The Tribunal does not accept the applicant’s explanation for the differences in his story. The Tribunal is of the view that if as the applicant claimed at the hearing his wife had stood for the elections for the Panchayat and had defeated a Muslim candidate he would have made this claim in his protection visa application even if he hadn’t taken an oath. The Tribunal is of the view that the differences in the applicant’s story are significant. In his protection visa he claimed that because he stood for the elections for the Panchayat he became a target for Muslims whereas at the hearing he claimed because his wife won the election and defeated a Muslim candidate they became a target for Muslims. The Tribunal put to the applicant in a s424A letter following the hearing the inconsistencies in his story. The applicant has provided no response. The Tribunal is of the view that the fact that the significant differences in the applicant’s story as to why he fears returning to India indicates that he is not a witness of truth.
There were numerous changes to the applicant’s story at the hearing.
There were changes to the applicant’s story as to when the Muslims burnt his harvest and threatened him. At the hearing the applicant initially claimed that Muslims entered his farm, burnt his harvest and threatened him on 24 June 2006. When the Tribunal put to the applicant that it had a copy of his visitor visa application the applicant changed his story and claimed that Muslims entered his farm, burnt his harvest and threatened him not on 24 June 2006 but on 24 March 2006. At the hearing when the Tribunal put to the applicant that it had difficulty with his story that he had been attacked by Muslims as he had changed his story the applicant claimed that he had told lies to the Tribunal because he was under stress and tension. The applicant claimed that it had taken him an hour to find the Tribunal’s offices. The Tribunal has considered the applicant’s explanation that he told lies because he was under stress and tension. Having regard to all of the applicant’s evidence and the other credibility concerns listed here the Tribunal does not accept that stress and tension alone explain the changes to his story. The Tribunal is of the view that the changes to the applicant’s story as to when the Muslims entered his farm, burnt his harvest and threatened him indicates that he is not a witness of truth.
There were changes to the applicant’s story as to what happened after the Muslims burn his harvest and threatened him. The applicant initially claimed that he didn’t report the incident to the police because there are Muslims in the police force and they don’t protect Hindus. The applicant then claimed that he did call the police. He then changed his story as to what happened when he called the police. He at first claimed the police took the names of the Muslims and did nothing. He then claimed the police took the Muslims to the police station for questioning and then let them go. The Tribunal is of the view that the changes to the applicant’s story as to what happened after Muslims burnt his harvest and threatened him indicates that he was simply making up responses as he went rather than providing a truthful account of what had happened to him.
The applicant made a number of claims about the situation for Hindus in Gujurat that were not consistent with the country information before the Tribunal.
The applicant claimed that during the riots in 2002 in Gujurat the Muslims attacked the Hindus and the authorities did nothing to protect the Hindus.
The country information before the Tribunal indicates that the violence that followed the train incident in February 2002 in Gujurat was carried out by Hindus against Muslims and the authorities did not protect the Muslims. The analysis by Human Rights Watch World Report 2003 states:
The Godhra massacre was immediately followed by a four-day retaliatory killing spree, in which over two thousand people, mostly Muslim, fell victim to mobs that looted and burned their homes, destroyed places of worship and Muslim-owned businesses, and gang-raped and sexually mutilated Muslim women and girls.
Human Rights Watch's investigations, and those of Indian human rights groups, revealed that much of the violence was planned well in advance of the Godhra attack and was carried out with state approval and orchestration. State officials and the police were directly involved in the violence: In many cases, the police led the charge, using gunfire to kill Muslims who got in the mobs’ way.
The Tribunal is of the view that the fact that the applicant claimed that during the riots in 2002 in Gujurat the Muslims attacked the Hindus and the authorities did nothing to protect the Hindus when the country information before the Tribunal indicates that it was the Hindus who attacked the Muslims and the authorities did nothing to protect the Muslims indicates that the applicant is not a witness of truth.
The applicant claimed that the police in Borisana, Gujurat, will not protect him from threats made by Muslims because they [the police] are Muslims.
The country information before the Tribunal indicates that Muslims are not properly represented in either the police or the armed forces throughout India. In Gujurat in particular Hindus dominate the police force and are seen to be anti Muslim. Quoting an Amnesty International Report, social commentator Asghar Ali Engineer stated that the police behaviour in Gujarat during the riots of 2002 in which they did not stop Hindu violence against Muslims was not surprising because many officers of Gujarat police force are reportedly members of Hindu right wing organisations. The United Nations High Commission on Human rights has called on the government of India to implement recruitment policies so that at least 15% of Muslims can be represented in the police force. The National Human Rights Commission in India has also directed the Gujurat state government to reform the police following their behaviour during the riots in 2002. At the hearing when this country information was put to the applicant he claimed the police in his area were Muslims. Given the country information about the police force in Gujurat and the lack of evidence beyond the applicant’s own assertions and the Tribunal’s findings as to the applicant’s credibility the Tribunal does not accept the applicant’s claims that the police in his area will not protect him because they are Muslim.
The applicant claimed that the BJP advised him to come to Australia because he was threatened by Muslims.
The country information before the Tribunal indicates that the Bharatiya Janata or BJP was established as a radical, right-wing, Hindu nationalist organization. Gujarat is the traditional stronghold of the Bharatiya Janata Party (BJP). In 2002, a number of reports indicates that violence against Muslims continued for months because the Bhartiya Janata Party (BJP) Government of Narendra Modi in Gujarat refused to intervene and fuelled the crisis by encouraging Hindu militants to continue their assault on Muslims. In the election following the 2002 riots the BJP increased its majority in the 182-seat assembly by winning 125 seats. The Tribunal is of the view that given this country information that the present BJP government in Gujurat has encouraged violence against Muslims the applicant’s claim that the BJP advised him to come to Australia because he was threatened by Muslims is implausible.
There were numerous claims the applicant made in his protection visa application that he did not make at the hearing.
In his protection visa application the applicant claimed that
· He was attacked by Muslims when he was returning from the temple in 2002.
· Three weeks after the riots in February 2002 Muslims came to his home in the middle of the night and started smashing things up and attacked him and his wife.
· In February 2006 Muslims came to his home at night and attacked him after he had attended BJP rally in Gandhinagar.
· He belongs to the Patel group. The Patels are seen to be rich people and the Muslims attack the Patels.
At the hearing the Tribunal asked the applicant why he feared returning to India and he claimed it was because his wife had defeated a Muslim candidate in the election for the Panchayat. When the Tribunal asked the applicant if there was any other reason why he feared returning to India he claimed that the Muslims would kill him because they lost the election. When the Tribunal put to the applicant that his claims as to why he feared returning to India were different to the claims me made to the Department he claimed that the claims he had made in his protection visa application were not true. When the Tribunal asked the applicant why he had made claims in his protection visa application that were not true he claimed he hadn’t taken an oath when he made the claims in his protection visa application. The Tribunal put to the applicant in a s424A letter following the hearing that he had made claims in his protection visa application that he did not make at the hearing which may indicate that the claims were not true. The applicant has provided no response. The Tribunal is of the view that if the applicant had been attacked by Muslims when he was returning from the temple in 2002 and if he had been attacked by Muslims at his home in February 2002 and February 20026 and if he had been attacked by Muslims because he was a Patel he would have made these claims at the hearing. The Tribunal is of the view that the fact that the applicant did not make these claims at the hearing indicates that these claims are not true and the Tribunal rejects them.
The applicant submitted fraudulent financial documents and employment documents to obtain his visitor visa.
In his protection visa application and at the hearing the applicant claimed that he was a farmer. In his visitor visa application the applicant stated that he was employed in his own business New Brahmani Zerox and Stationery Stores and had been employed in his own business for fifteen years. The Department of Immigration received an allegation by email on 24 May 2006 that the applicant had provided fraudulent financial documents and employment documents to obtain his visitor visa. An officer of the Department rang the business telephone number the applicant had provided to the Department and was advised it was not a business number but was a residence number and had been a residence number for 3-4 years. An officer of the Department contacted the State Bank of India and received oral and written confirmation from the State Bank of India Kalol Branch that the applicant had provided details of transactions that were not consistent with the details of transactions recoded by their system. When this information was put to the applicant at the hearing he claimed that the BJP had organised everything for his visitor visa application. The Tribunal does not accept this explanation as indicated above it finds it implausible that the BJP who are in power in the state of Gujurat and who are known to support violence by Hindus against Muslims would organise for the applicant to leave the state and the country because he had been threatened by Muslims. The Tribunal put the adverse information to the applicant in a s424A letter following the hearing. He has not responded. The Tribunal is of the view that the fact that the applicant has provided fraudulent financial documents and employment documents to obtain his visitor visa further indicates that he is not a witness of truth.
The applicant has made a number of general claims about the situation for Hindus in his protection visa application which the Tribunal has considered.
The applicant claimed that there was continuing tension and violence in Gujurat between Hindus and Muslims and the police would not protect him.
The independent information before the Tribunal indicates that India is a secular state with no official religion. The latest International Religious Freedom Report indicates that the United Progressive Alliance (UPA) continued to implement an inclusive and secular platform based on respect for the country’s traditions of secular government and religious tolerance and the rights of religious minorities. When Terrorists attempted to provoke religious conflict by attacking Hindu Temples in Ayodhya and Varanasi the Government reacted in a swift manner to rein in Hindu extremists, prevent revenge attacks and reprisal, and assure the Muslim community of its safety. The Government also quelled religious violence in Vadodara, Gujarat, after protests over the demolition of a Muslim shrine threatened to spark Hindu-Muslim violence. On May 1, 2006, despite the Muslim community's request that authorities preserve a 300-year-old shrine in Vadodara, Gujarat, and declare it a heritage site, the Vadodara Municipal Corporation demolished the shrine, alleging that it obstructed traffic. While attempting to disperse a mob that had gathered to protest the demolition, the Gujarat police killed two Muslims. In reaction, members of the Muslim community threw stones and set four shops on fire. On May 1, 2006, the Home Ministry asked the Gujarat Government to control the situation, and deployed paramilitary forces to assist local security personnel. On May 3, 2006, the Government applied a curfew and deployed the army. In March 2005, Gujarat police detained at least 400 persons to prevent Hindu-Muslim clashes during the Shi'ite Muslim day of mourning (Muharram); the same month, Muslims called off a Muharram procession in Vadodara to prevent potential clashes with Hindus. The independent information before the Tribunal indicates that outbreaks of religious tension in Gujarat, in 2005 and 2006 have not spread as police and state authorities have taken steps to curb mob actions and prevent any violence. The Tribunal accepts that while there may be ongoing tensions between Muslim and Hindus in Gujurat the government has taken steps to prevent violence and restore communal harmony. The Tribunal is satisfied that state protection is available and adequate for Hindus if further unrest were to occur. The Tribunal is not satisfied that the applicant has a well founded fear of persecution owing to his religion.
The applicant claimed that he fears returning to India because the Muslim terrorist groups have started a campaign of terror. He referred to the bombing of the Varanasi temple and the bombing in Mumbai.
The independent information before the Tribunal indicates that while there have been recent terrorist attacks in India the authorities have acted to investigate and arrest those involved in the attacks. Moreover after the Mumbai terrorist attacks the Prime Minister and others deliberately stated that it was not a case of Muslim terrorism and told the nation to respect and protect innocent Muslims. The UPA government continued its efforts to make statements and to implement campaigns to improve religious tolerance. In September 2005 the National council Minority (NCM) convened a meeting between prominent Hindu and Muslim leaders to promote communal harmony and deepen understanding and trust among their communities. In any event the Tribunal is satisfied that the chance the applicant may be the victim of a random act of violence by a Muslim terrorist group is remote.
Taking into account all of the evidence the Tribunal finds that the applicant lacks credibility. The Tribunal does not accept that the applicant has been attacked by Muslims for the reasons he has claimed in his protection visa application or for the reasons he has claimed at the hearing. The Tribunal is of the view that the applicant has fabricated these claims in order to strengthen his claim to refugee status. The Tribunal does not accept that the applicant has a real chance of persecution arising from his race, religion or for any other Convention reason.
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 of the other applicant. 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 four grounds as follows:
(1)
The RRT failed to consider that the applicant’s claims were
Convention related.
(2)The RRT was in jurisdictional error when it reached conclusions without considering facts in issue.
(3)The RRT was in procedural error by discounting every claim as untruthful without considering individual merits of applicant’s claims.
(4)RRT did not consider the applicant’s fears which constitutes the Convention based reasons.
Findings of the Court as the grounds in the application
Ground one complains that the Tribunal did not consider that the applicant’s claims were Convention related. This claim seeks to review a finding of fact. The Tribunal did not find the applicant to be a credible witness (CB 126). The Court accepts the following summary provided by the first respondent as the reasons why the Tribunal did not find the applicant to be a credible witness:
(i)There were substantial differences between his claims in the protection visa application and his evidence at the Tribunal hearing. These matters had been put to him in writing pursuant to s.424A of the Migration Act 1958 but no response had been received (CB 126-7).
(ii)His story had changed during the course of the hearing in several respects (CB 127).
(iii)His claims about the situation of Hindus in Gujarat, and the role of the BJP in encouraging him to flee to Australia, were not consistent with country information (CB 127-8).
(iv)Several of the claims made in his protection visa application were not made at the hearing (CB 129).
(v)The Applicant had submitted fraudulent documents and false information in obtaining the business visa which he had used to travel to Australia. (This issue was also raised with the Applicant by letter pursuant to s.424A) (CB 129-130).
Findings as to credibility are for the Tribunal to make. A finding as to credibility is a finding of fact: W148/00A (post). It is not the function of judicial review by a court to review the findings of fact by the Refugee Review Tribunal, unless it can be shown that “the trial judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable”: Devries v Australian Railways Commission (post).
In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; Tamberlin and R.D. Nicholson JJ stated at para [64]:
The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “`has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court finds no basis on which to set aside the findings of the Tribunal as to the credibility of the applicant. Having found that the applicant “is not a witness of truth” (CB 130) the Tribunal set out extensive reasons for concluding as a matter of fact that “it does not accept that the applicant has a real chance of persecution arising from his race, religion, or for any other Convention reason” (CB 131). Those were findings of fact properly open to the Tribunal that are not subject to review. Ground one is rejected.
Ground two alleges that the Tribunal reached conclusions without considering facts in issue. A transcript of the hearing has not been tendered to the Court. Nothing has been put to substantiate this ground. It is apparent from its decision that the Tribunal considered the facts in issue. Ground two is rejected.
Ground three alleges procedural error “by discounting every claim as untruthful without considering [the] individual merits of [the] applicant’s claims.” The Tribunal set out extensive reasons for finding the applicant not to be a truthful and credible witness (CB 126.5-131.3). The Tribunal gave consideration to the individual merits of the applicant’s claims and rejected them. Those findings of fact were properly open to the Tribunal on the material before it and are not subject to review. Ground three is rejected.
Ground four alleges that the Tribunal “did not consider the applicant’s fears which constitute the Convention based reasons.” This ground is factually incorrect: the Tribunal considered the claims of fear by the applicant, and rejected those claims.
The applicant’s claims at the hearing as to why he feared returning to India were completely different to the claims he had made in his protection visa application. (CB 126.6)
The Tribunal then gave extensive consideration to the applicant’s claims of fear and set out why it rejected them (CB 126.6-129.8 and 130.3-131.3).
At the hearing the Tribunal asked the applicant why he feared returning to India…(CB 129.5)
Clearly the Tribunal considered the applicant’s alleged fears. The Court rejects Ground four.
In the applicant’s affidavit filed on 13 February 2007, the applicant alleged that the Tribunal failed to understand why he could not tell the truth in his initial application for a visa, alleging that if he had told the truth he would not get a visa. This statement shows that the applicant was prepared to lie in order to get a visa. The Tribunal was entitled to take that admission into account in assessing whether the applicant is a witness of truth. As stated earlier, findings as to credibility are a matter for the Tribunal. It has not been established that the Tribunal failed to understand why the applicant could not tell the truth in his initial application. The applicant stated that he had to tell the truth at the hearing because he had taken an oath (CB 126.9). The Tribunal considered the applicant’s explanation and did not accept it for the reason set out by it. The Tribunal then concluded, as was open to it, that if his claim that his wife had stood for election was true, he would have included it “in his protection visa application even if he hadn’t taken an oath”. At CB 127.5, the Tribunal considered the applicant’s explanation for “the numerous changes to the applicant’s story at the hearing” that he was under stress and tension and it took him an hour to find the Tribunal’s office. The Tribunal decided, as it was entitled to do on the material before it, and having heard the applicant, that it “did not accept that stress and tension alone explain the changes to his story.” The Tribunal concluded that the changes to the applicant’s story indicate that he is not a witness of truth. There is therefore no good ground for asserting that the Tribunal misunderstood the applicant’s reasons for not telling the truth. The reasons given were considered and rejected. This allegation is rejected.
Oral submissions by the applicant
Oral submissions were made by the applicant at the hearing before the Court on 24 May 2007. The applicant sought to tender what he said was a membership card of a political party. The Court accepts the submission of the first respondent that the Tribunal did not make any finding as to whether the applicant was, or was not, a member of the party as named on the card sought to be tendered. Producing the card cannot therefore show that the Tribunal made any error of fact as to the applicant’s membership of a political party. The card was not before the Tribunal. There is no evidence that the applicant was prevented from producing that card to the Tribunal. The Court refused to accept the card into evidence as it was new factual material not produced to the Tribunal.
In submissions today the applicant sought an adjournment to obtain further material which was not put before the Tribunal. That application for an adjournment was refused for apparent reason.
Conclusion
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.
Accordingly, the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 6 June 2007
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