SZKIK v Minister for Immigration & Anor - [2007] FMCA 1003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1003

MIGRATION – RRT decision – Indian claiming political persecution – disbelieved by Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 424A(1), 474, 476

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant:

SZKIK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG821 of 2007

Judgment of:

Smith FM

Hearing date:

19 June 2007

Delivered at:

Sydney

Delivered on:

19 June 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG821 of 2007

SZKIK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 12 March 2007, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 February 2007 and handed down on 13 February 2007. The Tribunal affirmed a decision of a delegate made on 20 July 2006, refusing to grant a protection visa to the applicant.
Under s.476 the Court’s jurisdiction is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in May 2006 on a visitor’s visa, after having worked for many years in Abu Dhabi, with visits back to his country of nationality, India. In his protection visa application lodged on 6 June 2006, he made vague claims of fearing persecution both in Abu Dhabi and India. He said:
40Why did you leave that country?
I left India, because of my life threatning problem from Muslim fanatics in Abu dhabi and CPI (M), congress goondas in Kerala and Indian authorities.
I am also involving in union movement in Abu dhabi and I believe CPI (M.L) Maoist principles in India to fighting against ruling class political parties and landlords.
41What do you fear may happen to you if you go back to that country?
The Indian government will arrest me and [illegible] up fabricated cases against me for nothing but a member of banned communist party of India (Marxist‑Leninst) people’s war group in India.
There are cases pending in the court of law at Abu dhabi and in my states.
I was targetted by state intelligence wing and federal intelligence wing.
I left my wife in India, even though she was pregnant of 8 months. I had no chances and no hope my life in India.
42Who do you think may harm/mistreat you if you go back?
1.State & Federal Authorities
2.CPI (M), Congress and BJP Goondas
3.Hindu fanatics of Muslim extremists
43Why do you think this will happen to you if you go back?
Because, I was active member of CPI (M.L.) people’s war group. I was persecuted by Indian authorities continuously. The persecution included arrests, criminal charges and frequent harassment by the police authorities.
If I go back to India, I will arrested or killed by authorities.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No, I strong believe that Authorities will not protect my life.
In my past political and social activities, I have been seeing too many fake encounter custody deaths in India.
I strongly believe that if I go back to India, I will be killed by political revenge groups or I will be arrested by Indian authorities. Please kindly consider my refugee states in India.
A delegate refused the application on the ground that only his claims in relation to India should be assessed, since the applicant had no right of return to the United Arab Emirates (“UAE”). In relation to his fears of return to India, the delegate noted that the applicant had supplied no evidence of membership of a Maoist affiliated organisation, and had given no details of “a single instance of any trouble he may have encountered”. The delegate concluded: “because the applicant’s claims are so vague and unsupported, I am not prepared to accept any of them as credible”.
The applicant appealed to the Tribunal, again acting for himself without disclosing any assistance. He presented no corroborative evidence. When he attended a hearing on 5 December 2006 he made claims clearly different from those in the protection visa application, making no claim to have an affiliation with a political party or movement, other than stating that he “had been a member” of the Marxist communist party which was then in government in Kerala.
He told the Tribunal that his only problem in India related to an event which happened in August and September 2005 on a visit. He said that he had been taken to a “gang” in a forest, and held by them for a period. He claimed the gang had prevented his return to the UAE, and had threatened his life as a result of his refusal to join them. The Tribunal explained in its statement of reasons its questioning of the applicant about these claims at some length. A transcript is not in evidence and I have no reason not to accept the Tribunal’s description.
Following the hearing, the Tribunal sent to the applicant a letter inviting him to comment on information in a form consistent with s.424A(1). The first part of the letter drew attention to the differences between his claims in his protection visa application and the evidence he gave to the Tribunal at the hearing. It summarised both his sets of claims, and then stated:
You claim that you explained to a person what happened to you in India and this person then filled in your application. However, there is consistent information in the application including such things as your religion, schooling at St Marys and other personal details. It is apparent that you provided the person who assisted you to complete the application, with personal information to enable the application to be completed. The Tribunal therefore does not consider that the other person solely constructed the claims in the application and that you had no part in the construction of the claims.
This information is important because the discrepancies between the application and evidence given by you at the hearing are so significant that they cast doubt on the truthfulness of what you have presented. Together with the claims you have set out at the hearing, this could raise serious questions about your overall credibility.
The letter also identified “other evidence you gave at the hearing [which] raises strong concerns and doubts”, and it concluded: “the Tribunal has strong concerns and doubts about your evidence at the hearing and the above dot points show the general areas of concern the Tribunal has with your claims and evidence at the hearing”.
The applicant responded to that invitation in a letter sent before the Tribunal handed down its decision, which was received by it on 6 February 2007. The letter appeared to make an assertion that the applicant “became actively involved in social activities concerned with the CPI (Marxist/Leninist People’s War Group)”.
In its statement of reasons, the Tribunal recited the history of the matter, including the correspondence. Under the heading “Findings and Reasons”, it noted how “the applicant’s claims have changed over time, significantly”. It said:
The applicant claims that he explained to a person what happened to him in India and this person then filled in his application. There is consistent information in the application including such things as the applicant’s religion, schooling at St Marys and other personal details. It is apparent that the applicant provided the person who assisted him to complete the application, with personal information to enable the application to be completed. The Tribunal therefore does not consider that the other person solely constructed the claims in the application and that the applicant had no part in the construction of the claims. The Tribunal concludes that the claims made in the application had been concocted by the applicant at the time of the application and the Tribunal discounts them totally.
Further, the discrepancies between the application and evidence given by the applicant at the hearing are so significant that serious doubts are raised concerning the applicant’s overall credibility. These serious doubts are strengthened by the subsequent claims which he provided in his letter received on 6 February 2007. This letter provided vague and confused claims regarding his involvement in the CPI(Marxist/Leninist People’s War Group) and the CPI. He appears to consider the two organisations to be the same and appears to suggest that the CPI was the anonymous group which was trying to recruit him and which prevented him from leaving India. These claims are inconsistent with the evidence he gave at the hearing and suggest that he has further concocted and improvised claims after the hearing.
The Tribunal then further analysed the claims made by the applicant at the hearing, pointing to unbelievable aspects of those claims, which in combination with its finding about the applicant’s “overall credibility” caused it to conclude that the claims made to the hearing were “fabricated” “to establish a basis for refugee status”. The Tribunal rejected each of the bases on which the applicant had claimed protection, and concluded:
The Tribunal does not accept that the applicant fears harm/mistreatment in India because of an anonymous group, or fear of the CPI(Marxist/Leninist People’s War Group), or fear of the CPI, or because of a fear of the police or Indian authorities or for any other reason. 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. The Tribunal concludes that the applicant does not face a real chance of persecution for any reason.
I have considered the Tribunal’s reasoning and procedures, and in my opinion its decision was unaffected by any jurisdictional error.
The applicant’s original application to the Court did not raise any jurisdictional error. His amended application has the following grounds:
Grounds
4.The Tribunal constructively failed to exercise its jurisdiction by failing to refer to or make any findings on the following aspects in the Applicant’s case and hence made jurisdictional error.
(1)That the Tribunal acted with bias and with a preconceived idea of rejecting the claims on the grounds that the Applicant has “fabricated his claims to establish a basis for refugee status.” The Tribunal had completely rejected the whole claims of the Applicant in the application and at the hearing by the above statement. The Tribunal erred in not specifying the reasons as to its doubts in holding the Applicants claims as fabricated. The Tribunal erred and had made a jurisdictional error in rejecting the whole claims by the Applicant as fabricated to establish a basis for refugee status.
(2)That the Tribunal constructively failed to perceive that the Applicant was ignorant and had no basic knowledge as to the political groups belonging to CPI (Peoples war group) or BJP or Congress Goondas. The Tribunal erred in not giving any consideration as to the Applicant’s educational background, his family background and his status as belonging to poor people in the community, when deciding the Applicant’s case. The Applicant had specifically stated in his claims as well as at the hearing that he had no knowledge as to the reason for the political groups and different parties to persecute him constantly. The Tribunal failed to give any consideration as to the Applicant’s sufferance in the hands of the political groups, goondas and his friends due to his inability to perceive the political reason and thus made a jurisdictional error.
(3)That the Tribunal deliberately and knowingly erred in holding that the Applicant’s claims were fabricated due to his inability to perceive the political grounds under which he was repeatedly persecuted.
(4)The Tribunal made an error in rejecting the claims of the Applicant as fabricated even after the Applicant had specifically explained in his claims, in his further submissions and at the hearing that he feared to relocate to other parts of India to live without the fear of persecution.
(5)The Tribunal deliberately ignored the details as to the forced abduction of the Applicant by the friends into areas for arms training and the fear of death the Applicant faced during his detention at the camp and thus made a jurisdictional error by ignoring the above claims.
Counsel for the Minister analysed the arguments in these grounds, correctly, in my opinion, as raising two areas of contention.

He formulated them as being a failure to address aspects of the applicant’s case presented to the Tribunal, and bias. Counsel’s submissions in relation to the first area of contention, in my opinion, fully and correctly answer the matters raised:
First ground: constructive failure to exercise jurisdiction
7.The essence of this ground is that the Tribunal failed to make findings on certain aspects of the applicant’s case. The ground does not sit comfortably with either the Tribunal’s rejection of all of the applicant’s claims or the applicant’s apparent acceptance of that fact (see paragraphs 4(1) and (4) of the Amended Application).
8.On closer examination, however, the real complaint is that the Tribunal did not take into consideration the following matters when rejecting his claims: first, his ignorance, lack of political knowledge, educational background, and family status; secondly, the suffering endured by the applicant at the hands of his persecutors; and thirdly, the details of his forced abduction by his friends. The second and third of these may be disposed of easily because they are a simple restatement of the grounds that were considered and rejected by the Tribunal as fabrications. The first only takes issue with the merits of the decision: they are matters that the applicant, by implication, says should have led the Tribunal to accepting his claims. The truth is that the Tribunal had very good reasons to reject the applicant’s claims. It was these reasons that it was required to express in its written statement and not a line by line refutation of all the evidence that may have supported his claims: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65].
In relation to bias, counsel for the Minister’s submissions were:
Second ground: bias
9.There appear to be two bases for this ground: the first is simply that the Tribunal completely rejected the applicant’s claims as fabricated; and the second is that the Tribunal “deliberately and knowingly erred in holding that the applicant’s claims were fabricated”. Neither of these can possibly establish that the Tribunal had so prejudged the matter that it was unable or unwilling to change its mind regardless of the evidence: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.
10.Further, in light of the extensive and detailed reasons given by the Tribunal once it had made its decision, these two matters cannot support a conclusion that a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the issues before it: Re Minister for Immigration and Multicultural Affairs; Ex parte H (2001) 75 ALJR 982 at [27]. This is particularly so when the nature of the Tribunal and the statutory regime under which it operates are taken into account: Ex parte H (2001) 75 ALJR 982 at [5] and [28] – [30]; Minister for Immigration and Multicultural and Indigenous Affairs v SZGMF [2006] FCAFC 138 at [14].
11.Similarly, the fact that the Tribunal had written to the applicant under the direction of s 424A of the Act indicating that it had come to a particular view adds no strength to the ground. First, the Tribunal must, as a matter of statutory obligation, tell the applicant about information that it considers would be the reason or part of the reason for its decision and tell him why that is so. Secondly, all of the circumstances must be considered: the fact that the Tribunal gave the applicant a second chance to give evidence when it was not obliged to; the fact that the letter itself was written on the basis of evidence given at the hearing; and also the strong basis for the opinion stated in the letter.
(emphasis in original)
I would accept these submissions, but would further explain why I do not consider that the Tribunal’s s.424A letter reveals either actual or apprehended bias.
A possible concern, which I discussed with counsel, arises from the positive statement in the Tribunal’s invitation for comments, where it said: “the Tribunal therefore does not consider that the other person solely constructed the claims in the application and that you had no part in the construction of the claims”.
This might appear to suggest a firm conclusion rejecting one aspect of the applicant’s explanation for his inconsistent refugee claims. However, I accept the submission of counsel for the Minister that it does not show, and would not cause a reasonable apprehension on the part of an informed lay observer, that the Tribunal had closed its minds to assessing the merits of the applicant’s refugee claims. Rather, it introduced the Tribunal’s explanation of its concern about his inconsistent refugee claims.
The letter itself properly warned that the problems identified by the Tribunal “could raise serious questions about your overall credibility”, and the apparent purpose of the letter itself was to afford the applicant a further opportunity to persuade the Tribunal in relation to the credibility of his refugee claims. That was an opportunity which the applicant had already been afforded at a hearing and, on reasoning recently given in the majority judgment in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17] and [22], was not required to be put to the applicant by way of a written invitation for comments. In my opinion, the letter read in the context of the proceedings and in its full content, would not give rise to any apprehension coming within the doctrines of actual or apprehended bias.
The applicant attended today but had no further arguments to present in support of establishing jurisdictional error. He maintained that he needed to stay in Australia because his wife had warned him against returning. However, as I have explained to the applicant, it is not my function to decide whether he should have refugee protection in Australia.

For the above reasons I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 2 July 2007