SZKMP v Minister for Immigration

[2007] FMCA 902

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 902

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.422B, 424A, 441A

Minister for Immigration  v SZGMF [2006] FCAFC 138

Applicant: SZKMP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1174 of 2007

Judgment of: Driver FM

Hearing date: 8 June 2007

Delivered at: Sydney

Delivered on: 8 June 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson
Sparke Helmore

INTERLOCUTORY ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1174 of 2007

SZKMP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 1 March 2007 and was handed down on 22 March 2007.  The Tribunal affirmed a decision of the Minister not to grant the applicant a protection visa.  The background to the applicant’s claims and the decision on them are summarised in an outline of written submissions filed on behalf of the Minister on 6 June 2007.  I adopt as background for the purposes of this judgment paragraphs 2 and 3 of those written submissions:

   The applicant claimed to be of the “untouchable Dalit caste of Hindus” and to have been the leader of Kerala Dalit Federation (KDF), protesting on behalf of the rights of Dalit labourers. He claimed to have led a large demonstration on 30 August 2003 against a large corporate employer on behalf of Dalit workers and residents. He was detained and allegedly attributed the profile of a terrorist by Indian authorities. The applicant then fled to Mumbai but he became aware that the police were tracking him down.

   The Tribunal “was not impressed” with the applicant’s account regarding the significance of his profile and found his account of how he knew the police were about to target him was “implausible and unconvincing”: court book (CB) 75.9-76.1.  The Tribunal also found that the applicant had plagiarised information about the 30 August 2003 protest from an internet website (CB 76.2). In view of the “implausibility and unreliability” of the applicant’s evidence, the Tribunal found that the applicant’s claimed experiences had been “lifted” from a website in bad faith. Accordingly, the Tribunal found that none of the applicant’s substantive claims were reliable: CB 76.4. 

2. These proceedings began with a show cause application filed on 11 April 2007.  The applicant asserted actual notification of the Tribunal decision on 22 March 2007.  I find that the application was filed within time.  The application was supported by an affidavit filed on the same day which annexed a copy of the Tribunal decision.  The second paragraph of that affidavit asserts procedural unfairness by the Tribunal.  I also have before me the Minister’s response filed on 26 April 2007, the court book filed on 3 May 2007 and the Minister’s submissions which I have already noted were filed on 6 June 2007. 

3. The applicant now relies upon an amended application filed yesterday.  There are four grounds in that amended application.  The first is that the Tribunal erred in making a credibility finding against the applicant which was impulsive and unconvincing without a proper evidentiary basis and based on speculation.  The particulars refer to the following quote from the Tribunal decision on page 76 of the court book:

   The Tribunal finds implausible and unconvincing the Applicant’s account as to how he knew that Mumbai police were about to target him as a suspect in the alleged November 2005 bombing. 

   The Tribunal finds that the Applicant has plagiarised information about the 30 August 2003 protest and related events in order to place himself in those events. 

   The Tribunal has nevertheless considered whether the Applicant or someone assisting him might have resorted to a borrowed text in order to help him with the burdensome and complex task of describing an actual danger faced by him. 

   However, in view of the implausibility and unreliability of the Applicant’s evidence about his escape from Kerala and about his predicament in Mumbai and how he got out of it, the Tribunal finds that the “experiences” at the heart of the Applicant’s claims have been lifted from the website entirely in bad faith. 

   The Tribunal is not satisfied on the Applicant’s evidence that any of his substantive claims are reliable.  The Tribunal is not even satisfied on the evidence before it that the Applicant is even a Dalit. 

4. The amended application asserts that there is no basis for this finding and that the Tribunal failed to consider the circumstances surrounding the matter.  The amended application asserts actual bias and illogicality.

5. In relation to this ground, in his oral submissions the applicant asserted a number of factual errors.  Initially the applicant took me to page 45 of the court book at paragraph 8.  He told me that an individual was erroneously named in that paragraph.  That is of course part of the delegate’s record of her decision which is not the subject of the present proceedings. 

6. The applicant also submits that the Tribunal was mistaken in making references on page 74 and 75 of the court book to the applicant being targeted by police from Mumbai.  He denies making that claim and says that he rather claimed to have been targeted by Kerala and Delhi police.  Nevertheless the record of the Tribunal hearing appearing in the Tribunal decision has the applicant making a claim of being targeted by the Mumbai police.  In the absence of a transcript the applicant is unable to prove that the Tribunal was wrong.  I gave directions in this matter on 7 May 2007 and among my orders was an order giving the applicant the opportunity to file a transcript by 7 June 2007.  He did not take advantage of that opportunity.

7. The adverse credibility finding made by the Tribunal is a strong one.  Nevertheless, given what appeared to be the damning evidence of an apparently plagiarised account from the internet, the finding made by the Tribunal was open to it on the material before it.  I reject the contention that there was nothing to support the adverse credibility findings. 

8. There is also no substance to the assertions of illogicality and bias.  Even if illogicality could be established it would not equate to jurisdictional error.  The applicant acknowledged in his oral submissions that at the time of the Tribunal hearing he had no evidence to support his claim that he was a member of the Dalit caste.  However, he tendered, and I accepted as an exhibit (exhibit A1), a letter purportedly from the president of the Bharathaya Dalit Congress dated 16 May 2007 which on its face supports the applicant’s claim in that regard.  That evidence was unavailable to the Tribunal so it could not be taken into account.  I am unable to say whether it would have made any difference if it had been available.  I find that there is no arguable case of jurisdictional error based upon the first ground of review.

9. The second ground asserts procedural unfairness and a failure to investigate the applicant’s genuine claims. The ground also asserts a constructive failure to exercise the Tribunal’s jurisdiction. In the absence of particulars to is difficult to clothe this ground with any meaning. The applicant’s affidavit asserts procedural unfairness in relation the Tribunal’s consideration of the issue of the plagiarised information. The applicant asserts in the affidavit that he was not given an opportunity to contest at any time that information before the Tribunal decision. That assertion is false. Page 59 of the court book is a letter dated 14 February 2007 to the applicant from the Tribunal pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) directly to precisely that issue. Further, I agree with and adopt for the purposes of this judgment with necessary amendments paragraphs 5, 6, 7 and 10 of the Minister’s submissions, noting that the submissions were responsive to the original application rather than the amended application:

   Following the Tribunal hearing on 14 February 2007, the Tribunal handed the applicant a letter pursuant to s.424A of the Act (CB 59-65). This letter complied with the requirements in ss.424A and 441A(2) and outlined the Tribunal’s concerns about the applicant’s claims and sufficiently explained why that information was relevant to the review: s.424A(1)(b).[1]

   Specifically, the letter attached the internet article from which the applicant apparently plagiarised his claims in relation to the August 2003 protest. The Tribunal had highlighted each of the passages of the article that were identical to his claims. The letter warned the applicant that the information could undermine confidence in his credibility. The letter also attached the relevant pages from his protection visa application which contained the identical claims.

   The applicant provided a response to this letter on 28 February 2007 in which he accused the delegate of bias and failing to weigh properly his claims: CB 66-67. The Tribunal ultimately relied on the information contained in the s.424A letter to find that the applicant had plagiarised his claimed experiences. As the applicant was given an opportunity to comment on that information, no breach of s.424A has occurred.

   The application also alleges a denial of natural justice without any particulars. Section 422B of the Act applies to this application and the applicant has not demonstrated any breach of the Tribunal’s obligations under Part 7, Division 4 of the Act. Accordingly, this ground must fail.

   [1] Minister for Immigration  v SZGMF [2006] FCAFC 138 at [40]-[44]

10. Paragraph 8 of the Minister’s submissions also deals with the question of the information provided by the applicant at the hearing in relation to the bombing incident and his supposed predicament in Mumbai. I agree with the Minister’s submission that if that information was indeed conveyed to the Tribunal at the hearing it would not need to be disclosed to the applicant pursuant to s.424A(1). I find that there is no arguable case of jurisdictional error in relation to the second ground of review.

11. The third ground of review asserts that the Tribunal applied the wrong test.  The applicant also appears to be asserting that the Tribunal overlooked an element or integer of his claims.  No particulars are provided in the amended application.  I invited the applicant to give particulars orally but he did not do so.  I find that there is no jurisdictional error in relation to ground three.

12. The final ground in the amended application is (again) that the Tribunal applied the wrong test.  The applicant asserts that the Tribunal required independent evidence of a fact before the Tribunal would accept a claim being made by the applicant.  The applicant asserts that the Tribunal placed too high an onus of proof on him and that the Tribunal should have given him the benefit of the doubt.  No particulars are provided of this assertion in the amended application but it appears from the applicant’s oral submissions that this ground is directed to the Tribunal’s finding that it was not satisfied that the applicant is a Dalit. However, the applicant concedes that he was not able to provide the Tribunal with evidence to support his claim that he is a member of the Dalit caste.  He has now provided evidence in the form of exhibit A1 but that was unavailable to the Tribunal.  The Tribunal’s finding is no more than a recognition of its statutory obligation to be satisfied about the applicant’s claims to a level sufficient to permit the grant of visa sought by him.  No jurisdictional error is disclosed.

13. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

14. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,200. That is less than the amount prescribed under the Federal Magistrates Court Rules. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,200.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 June 2007