SZKIK v Minister for Immigration and Citizenship

[2007] FCA 1671

FEDERAL COURT OF AUSTRALIA

SZKIK v Minister for Immigration and Citizenship
[2007] FCA 1671

SZKIK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1314 OF 2007

RARES J
25 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1314 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKIK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	25 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1314 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKIK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	25 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing constitutional writ relief to the appellant in respect of a decision of the Refugee Review Tribunal which affirmed a decision of a delegate of the Minister to refuse a protection visa: SZKIK v Minister for Immigration [2007] FMCA 1003.

2. The appellant is a citizen of India who lived in both Kerala State and the United Arab Emirates.  He resided in the latter country from 2002 to 2005 although he travelled between his homeland and there on occasions during that period.  He claimed in his application for a protection visa to have been an active member of the Communist Party of India (Marxist‑Leninist) People’s War Group and to have believed in the Communist Party of India’s (Marxist-Leninist) Maoist principles.

3. He claimed to have been persecuted by the Indian authorities continuously through being arrested, being the subject of criminal charges and frequent police harassment.  He also claimed to have been the subject of cases which were pending in the Indian courts and to have been targeted by State and Federal intelligence agencies in India.  He claimed that these aspects of State harassment gave him a fear that if he returned to India he would be arrested and falsely prosecuted by the authorities or killed.

4. He claimed to have had a ‘life-threatening problem’ from what he described in his application for a protection visa as the CPI(M), Congress and BJP Goondas, Hindu fanatics and Muslim extremists.  (The tribunal inferred that the reference to Muslim fanatics and involvement in the union movement appeared only to relate to his problems in Abu Dhabi in the United Arab Emirates.)  He said that he feared harm or mistreatment from the Indian State and Federal authorities, the CPI(M), Congress Goondas, BJP Goondas, Hindi fanatics, Muslim extremists and political revenge groups.  He claimed that the authorities would not protect him and that he had seen ‘many fake encounter custody deaths’ in India.

5. The appellant gave evidence to the Refugee Review Tribunal in December 2006 concerning his circumstances in India from the time of his return to live there in August 2005 until his departure in May 2006.  At that stage, in the hearing before the tribunal, he claimed that he feared persecution in India because in August or September 2005 he was invited to join an anonymous group of people there who were training with guns and sticks in a forest.  After he refused to join, he claimed he was threatened with injury and death and beaten a few times.  These people, he claimed, prevented him from returning to employment in the UAE and threatened to frame him with the police.  He hid and fled to Australia but these people were apparently still looking for him.  He claimed if he returned to India this anonymous group would find him and injure him or kill him and that the Indian authorities would be unable to protect him because he was poor.

6. Before the tribunal he claimed that he had given details of this last claim (a fear of the forest group) to the person who assisted him in the preparation of his protection visa application but that person prepared the application without regard to it. The tribunal raised with the appellant the discrepancies between his visa application claims and those advanced at the hearing before it in a letter sent pursuant to s 424A of the Migration Act 1958 (Cth) after the conclusion of the hearing.

7. In its account of the hearing forming part of its statement of decision and reasons, the tribunal set out details of the questions it had asked of the appellant and his responses.  I think it is fair to observe that the tribunal’s questioning of the appellant indicated in plain terms that it had very considerable reservations at that stage about the credibility of much of what he had to say.

8. The tribunal noted that although it had provided the appellant with ample opportunity at the hearing he had not claimed that he was an active member of the Communist Party of India (Marxist-Leninist) People’s War Group or believed in the Communist Party of India (Marxist-Leninist) Maoist principles.  He did not claim at the hearing to have suffered harm or mistreatment in India as a result of his past political involvement as outlined in his protection visa application.  Nor did he claim at the hearing to fear returning to India because of any past political involvement.  Likewise at the hearing he did not make any claims in relation to the problems he asserted in his protection visa application form with the CPI(M) (whatever that is) and Congress Goondas or to have observed any matter relevant to persons dying in custody in India.  Nor did he claim at the hearing to have feared harm or mistreatment from the Indian Federal authorities, the CPI(M), Congress Goondas, BJP Goondas, Hindu fanatics, Muslim extremists and other political revenge groups.  The tribunal found that he only claimed at the hearing to have feared harm in India from the anonymous group in the forest which he had refused to join. 

9. The tribunal concluded that the claims made in the application for a protection visa had been concocted by the appellant at the time of the application and it said that it completely discounted those claims. It then found that the discrepancies between the original claims in the application for a protection visa and the evidence given by the appellant at the hearing were so significant that it had serious doubts concerning his overall credibility. It referred to the appellant’s letter dated 6 February 2007 received in response to the tribunal’s invitation to comment under s 424A sent on 21 December 2006 as strengthening the tribunal’s concerns as to the appellant’s overall credibility. The tribunal observed that the appellant’s February 2007 letter provided vague and confused claims regarding his involvement with the CPI (Marxist-Leninist) People’s War Group and the CPI. There appeared to be suggestions in the letter that both those groups were the same or that the CPI was the group in the forest. It observed that those claims were inconsistent with the appellant’s evidence at the hearing and suggested to the tribunal further concoction and improvisation by him.

10. At the end of the day the tribunal found that it did not accept the application claims made at the hearing any more than it had his claims made in his protection visa.  In particular, the tribunal did not accept that the appellant had no knowledge concerning the identity of the group which had taken him to the forest and with whom he had spent a week.  Nor did it accept that an organisation in Kerala and other Indian States which was so well organised that, according to the appellant’s claims, they would find him wherever he went in India, would seek to recruit him but would not disclose anything about their goals or aims.  The tribunal did not accept that such a group would seek to or succeed in keeping their name, goals and aims completely secret from the appellant even though he was supposed to be a person they were forcibly seeking to recruit.

11. The tribunal also rejected as implausible the appellant’s claims that he fled to Australia only after he had been prevented from travelling to the United Arab Emirates because the anonymous group would have stopped him at the airport from travelling to the Emirates but, somehow, not Australia.  The tribunal found the appellant’s claims concerning the forest group to be implausible.

12. Ultimately it concluded that the appellant had concocted his claims for the purpose of his application for a protection visa and that they were a fabrication to establish a basis for refugeestatus.  It did not accept that he had ever been arrested in India by the police for the reason that he gave or that he had been framed by an anonymous group.  It did not accept his account of being taken by the anonymous group or being threatened or prevented, beaten or stopped from travelling to the United Arab Emirates.  The tribunal did not accept the appellant’s fears of harm or mistreatment in India for any of the reasons which he gave and said:

    ‘The Tribunal rejects all of the claims made by the applicant concerning the events after his return to India in 2005 and his claimed fears of persecution should he return to India.  The Tribunal does not accept that his wife is in hiding in India.  The tribunal concludes that the applicant did not have a genuine fear of persecution for any reason at all.  The Tribunal cannot discern any other circumstances which might give rise to a real chance of prospective harm, let alone persecution.’

13. The tribunal accordingly found that the appellant was not a person to whom Australia owed any protection obligations under the Refugees Convention and affirmed the delegate’s decision.

14. Before his Honour, the appellant argued that, first, in effect the tribunal had failed to address aspects of his case which he had presented to it and secondly, that the tribunal was biased.  His Honour rejected those claims in a way which does not reveal any error.  Indeed, I agree with his Honour’s reasons for rejecting them.

15. Before me the appellant’s ground of appeal was as follows:

    ‘His Honour erred in finding that the Refugee Review Tribunal took into consideration the ignorance, lack of political knowledge, educational background and family status of the appellant when rejecting the claims.’

16. In essence, that really sought to assert that the tribunal should have had regard to the alleged ignorance, lack of political knowledge, educational background and family status of the appellant in assessing his overall credibility.  None of these matters are considerations which it was essential for the tribunal to consider in forming a view as to credibility such as would amount to a jurisdictional error:  see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 per Mason J.

17. The trial judge found that the tribunal gave legally sufficient reasons for coming to a conclusion as to the appellant’s overall credibility.  It was not required to express in its written statement any line-by-line refutation of his evidence or to take into account every single possibility as to why it might otherwise be accepted.  I agree. 

18. The appellant filed written submissions on the appeal. He asserted that the tribunal should have clarified orally during the hearing the discrepancies to which its letter under s 424A referred and that it failed to construe the facts in a proper manner according to law or to give him a reasonable opportunity to clarify them. In my opinion, that argument is without any substance. The appellant had ample opportunity to clarify the matters in his response to the s 424A letter. Indeed, the course of questioning during the hearing which is recounted in the tribunal’s statement of decision and reasons indicates, as I have pointed out, that it must have been apparent that the tribunal was then having significant problems with accepting his overall credibility.

19. The tribunal referred to his educational background and the fact that he had completed Year 10 at a Catholic school, he being a Catholic. It noted that initially he told it that he could read and write English and could understand it. But the tribunal then referred to the appellant’s subsequent statement that he did not read or write English. At that point, the tribunal said it had indicated he should be careful with his answers as he had earlier said that he could read and write English. I reject his assertion in written submissions that the appellant needed an oral explanation at the hearing beyond what was said at the hearing as appears in the tribunal’s statement of decision and reasons as well as the s 424A letter. It was for the appellant to satisfy the tribunal that his claims could be made out, which he failed to do.

20. The appellant’s written submissions also argued that during the hearing he had told the tribunal his claims were already stated in the application.  He then asserted that the tribunal was wrong to make its findings concerning improvisation of his claims in relation to his involvement in the People’s War Group.  There was no transcript of the evidence or hearing before the tribunal.  I am not satisfied that the appellant’s argument in this regard has any substance.  The tribunal recorded in its statement of decision and reasons that the appellant told it at the hearing that he did not do anything for the Communist Party of India‑Marxist (CPI-M).  He said to the tribunal that he had simply been told to become a member and he did.  The tribunal also noted the Communist Party was the current government in Kerala and the appellant had told the tribunal he had no problems in that State because of the government.  He told the tribunal at the hearing that his only problem in India was with the forest group.  There is no basis on which it could be arguable that the tribunal made an erroneous finding concerning the appellant’s involvement with the CPI Marxist-Leninist People’s War Group.  Its findings in relation to that matter were open to it on the evidence.

21. Last, the appellant argued in his written submissions the tribunal made a mistake because not only did he fear persecution at the hands of the forest group, he also feared it from the authorities and ruling communist government.  There was plainly evidence before the tribunal to support its conclusion.  It was for the tribunal to decide what evidence it accepted.  The last part of this complaint asserts:

    ‘The Tribunal failed to accept both the claims put forward by the [appellant] at the hearing and in the original claims.’

22. It was the tribunal’s function to consider whether it accepted those claims or not.  It was open to the tribunal to reject the claims, as it did.

23. In my opinion, no arguable jurisdictional error has been shown to have occurred or affected the way in which the tribunal reached its findings of fact or ultimate conclusion.

24. For these reasons the appeal fails.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        5 November 2007

The Appellant appeared in person:
Counsel for the Respondent:	JS Mitchell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 October 2007
Date of Judgment:	25 October 2007