SZKJW v Minister for Immigration
[2007] FMCA 1338
•27 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1338 |
| MIGRATION – Information under s.424A(1) does not include findings as to credibility – reference to gaps in evidence is not information – Tribunal entitled to accept or reject evidence – weight is a matter for the Tribunal. |
| Migration Act 1958 (Cth), ss.36(2), 424A, 425, 474 |
| SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 |
| Applicant: | SZKJW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 950 of 2007 |
| Judgment of: | Turner 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 G. Johnson |
| Solicitors for the Respondents: | Ms B. Anniwell of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 950 of 2007
| SZKJW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 19 March 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”) signed on 5 February 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa (Court Book “CB” 112-122). The applicant filed an amended application on 5 June 2007.
The applicant was born on 16 March 1970 and claims to be from India, of Hindu Patel ethnicity and Hindu faith.
The applicant’s husband and daughter remain in India.
The applicant arrived in Australia on 31 May 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 13 July 2006. In this application she claimed to be the president of the “Women Freedom Force”, a ladies wing of the Bhartiya Janta Party (BJP). The applicant claimed that congress party workers became angry at her after their female members started joining the BJP. The applicant claimed that she was threatened and physically attacked, but did not report these incidences to the police because her husband “wanted me to leave the politics” and was concerned about what the reports would do to their reputation. The applicant claimed that she was later attacked by strangers who blamed her “for the death of some people during communal riots”, and she fled to Australia to save her life (CB 15-17).
This application was refused by a delegate of the first respondent on
7 August 2006 (CB 52-60).
On 29 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 61). The applicant attended for a hearing before the Tribunal on 20 October 2006 (which was postponed, CB 80) and 22 November 2006 (which was adjourned, CB 85). The applicant failed to attend a hearing on 8 December 2006 (CB 90), however, the Tribunal agreed to reschedule the hearing for 31 January 2007. The applicant attended the hearing before the Tribunal on 31 January 2007 and gave evidence and presented oral arguments (CB 118).
By decision signed on 5 February 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicants claims, the Tribunal found (CB 119-22) (highlighting added):
I am satisfied that the applicant is a citizen of India.
The Tribunal is aware that an assessment of credibility should be approached with caution (SAAK v MIMA [2002] FCA 367 (28 March 2002) and Kopalapillai v MIMA (1998) 86 FCR 547) and that it is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras 196-197 and 203-204). A decision-maker does not have to have rebutting evidence available before she or he can lawfully hold that a particular assertion by an applicant is not made out (Selvadurai v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, Heerey J, 20 May 1994, at page 7). It is also clear that the Tribunal is not required to accept uncritically all claims made by applicants. In Rhandawa v the Minister for Immigration, Local Government and Ethnic Affairs (1994 52 FCR 437 at page 451) Beaumont J observed that a liberal attitude concerning proof of persecution in the context of an application for refugee status “should not, however lead to an uncritical acceptance of any and all allegations made by suppliants”.
The applicant’s claims are entirely dependent upon an acceptance of her as a credible witness. The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty she faces as an asylum seeker. The Tribunal does not accept the applicant as credible and consequentially rejects all of her material claims.
The applicant claims that if she returns to India she will face persecution for reasons of her political opinion, because of her activities from 1997 as a senior member of a women’s movement group. She claims that her problems began after her father in law died and that from 1997 until she left India in 2006 she was threatened, assaulted and targeted by her enemies. In assessing the applicant’s Convention claims, I am required to determine whether she has a well founded fear, and if so, whether what she fears amounts to persecution for a Convention reason.
The Tribunal has taken into account the applicant’s claims in her protection visa application and her evidence before the Tribunal. The Tribunal has also taken into account the applicant’s Tourist Visa Application and the information on her passport which she submitted to the Tribunal. The Tribunal accepts that the applicant comes from the State of Gujarat and that she is married with two children. The Tribunal does not accept that the applicant is unaware of her husband and son’s whereabouts in India. The Tribunal is not satisfied that the applicant left India because she feared persecution, as described in her application and evidence before the Tribunal.
The following inconsistencies, contradictions and implausibility lead the Tribunal to conclude that the applicant is not a credible witness in relation to certain aspects of her claims:
·In her protection visa application the applicant stated that she had worked as a social work manager and was involved in political activities in India. In her evidence before the Tribunal she stated that she carried on working in her political area up to the time she came to Australia. In her Tourist Visa Application she stated that she had been employed for 2 years and 2 months as a maid/nanny with Desai family. When questioned by the Tribunal about why she did not include her employment with the Desai family in her Protection Visa Application, she stated that she just filled out the form and said something about child care. When asked by the Tribunal why she did not refer to her son in her protection visa application she stated that she was only worried about her daughter and forgot about this in the form.
·During her evidence before the Tribunal the applicant claimed that in 2002 she went to live with her parents for 2-3 months and in the same year she returned to her husband’s house. She stated that her husband then told her to leave. When asked what she was doing between 2002 and 2004 she stated that she was living with her mother. She stated that her son was born on 7 April 2003. When asked how her son had been conceived when her husband had thrown her out of the house in 2002, she stated that she returned to her husband in 2002 and her husband told her to leave after her son turned 12 months.
·The applicant claimed that from 1997 until 2006, when she departed India she was the target of threats and on one occasion, an assault. When questioned about the assault incident, the applicant was vague about what happened and could not remember the date of the assault and thought that it could have been 2001.
·The applicant remained in Gujarat for the period 1997 until 2006 even though she claimed that she was persecuted and feared serious harm during that period. Her decision to remain in Gujarat for that period suggests that the applicant did not fear persecution as claimed.
The Tribunal is not satisfied that the applicant was the victim of persecution in India during the period referred to in her Protection Visa application and her evidence before the Tribunal. The Tribunal wrote to the applicant as required by s.424A of the Act. The applicant did not reply in writing. The matters referred to were discussed with the applicant during the Tribunal hearing and her explanations in regard to the different information provided in her Tourist Visa Application and her Protection Visa Application are not convincing. It is the Tribunal’s view that the applicant fabricated her Protection Visa Application claims in an effort to satisfy the Department that she was in fear of persecution because of her political activity. The Tribunal is of the view that she did not mention her position as maid/nanny with the Desai family because to do so would cast doubt on her Protection Visa Application claims.
The Tribunal also finds it implausible that had the applicant suffered as claimed, she would have remained in Gujarat for the relevant period. The Tribunal is not satisfied that the applicant was involved in any political activity which attracted threats and harm as claimed. The Tribunal is of the view that the applicant was employed as a maid/nanny with the Desai family and once she arrived in Australia she decided to stay. The applicant told the Tribunal that a distant relative from Gujarat was living in Australia at the time she arrived in Australia. She telephoned India to obtain the relative’s phone number and then made contact and moved to Griffith on 20 June 2006. The Tribunal is of the view that had the applicant formed the intention to remain in Australia prior to leaving India, she would have contacted relatives and obtained contact details before departing India. The fact that she sought those details after her arrival in Australia indicates that her decision to remain was made after she arrived in Australia.
The Tribunal is not satisfied that the applicant was threatened, assaulted or harmed in any way by political opponents or any other parties. The Tribunal does not accept that the applicant’s husband told her to leave their family home at any time or that his and their son’s whereabouts are unknown to the applicant. There is no credible evidence upon which the Tribunal could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if she returns to India.
Accordingly the Tribunal is unable to find that the applicant has a well founded fear of persecution for a Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for 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 Act”).
The application
In her application, the applicant set out three grounds as follows:
(1)That the Tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
Particulars
(a)There was certain adverse information used by the Tribunal to affirm the decision under review.
(b)The Tribunal did not disclose the information in accordance with section 424A(1).
(2)That the Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.
(3)That the Tribunal made denial of natural justice because it failed to provide further opportunity before the Tribunal.
The applicant filed an amended application on 5 June 2007 setting out the following grounds and particulars:
(1)Breach of section 424A(1) of the Migration Act.
Particulars
(a)There was certain informations (sic) used by the Tribunal without providing more opportunity to respond. The adverse informations used by the Tribunal was not given to the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The Tribunal did not disclose the information in accordance with s.424A(1) of the Migration Act.
(b)The Tribunal did not take into account any evidence or materials before him, neither the Tribunal gave enough time to get supporting evidence or inquiry to comment on the adverse information under section 424A(1), which the Tribunal relied upon or used against the applicant to affirm the delegate’s decision. The similar kind of information used by the Tribunal member without providing further opportunity to comment on the information before the Tribunal.
The Court understands the grounds and particulars in the amended application to be one ground, namely a breach s.424A of the Act, with two particulars.
Findings of the Court as to the grounds in the application
Ground one asserts a breach of s.424A(1) of the Act because adverse information was not disclosed to the applicant. The Tribunal concluded that the applicant was not a credible witness (CB 120.5). The Court accepts the following submissions for the first respondent:
(a)“information” in s424A(1) does not extend to the Tribunal’s subjective appraisals, thought processes, determinations or to identified gaps, defects, lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps.
The Court refers to the decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] in support of that submission. The first respondent has provided the Court two cases in which the decision in SZBYR has been considered. Those cases are SZITN v Minister for Immigration and Citizenship [2007] FCA 1007 and Hao Jiang v Minister for Immigration and Citizenship [2007] FCA 907. Neither of those cases detract from the proposition or submission from the respondent as just quoted by the Court. The fact that the applicant did not mention her son in her application for a protection visa therefore was not “information” for the purposes of s.424A(1). The Tribunal sent a s.424A letter to the applicant (CB 92). There is nothing to establish that the letter did not refer to all information that was required to be disclosed by s.424A(1). It is for the applicant to establish their case. Ground one is rejected.
Ground two alleges a lack of procedural fairness. It has not been established that there was any breach of Division 4 of Part 7 of the Act, which sets out the requirements of natural justice required to be accorded to the applicant. A denial of procedural fairness has not been shown. Section 424A and s.425 were complied with. Ground two is rejected.
Ground three alleges that the Tribunal denied natural justice “because it failed to provide further opportunity before the Tribunal.” The applicant was invited to attend before the Tribunal (CB 67, 83, 87, 96 and 98). The applicant was invited to comment on information put to her by the Tribunal (CB 92,93) and the applicant attended the Tribunal on 31 January 2007 (CB 118); she was assisted by an interpreter. The Tribunal was not required to provide any further opportunity to the applicant. The Court dismisses ground three.
Findings of the Court as to the grounds in the amended application
As stated above, the Court will treat the two paragraphs as particulars of the alleged breach of s.424A(1). The applicant complains in particular (a) that information was given to the delegate for the purpose of obtaining a protection visa (and therefore it was not given to the Tribunal). The Tribunal’s s.424A letter referred specifically to information in the protection visa application. It has not been established that the Tribunal relied on any other information as the reason, or part of the reason, for affirming the decision of the delegate. A breach of s.424A(1) has not been established. Particular (a) is rejected.
Particular (b) alleges a breach of s.424A(1) because the Tribunal did not take evidence into account. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. It has not been shown that the Tribunal did not take relevant material into account. Particular (b) also complains that the Tribunal did not provide the applicant with further opportunity to comment before the Tribunal. That allegation is rejected for reasons already expressed in relations to the application. Particular (b) is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, which 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 and amended application are dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 9 August 2007
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