SZKPB v Minister for Immigration

[2008] FMCA 1550

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1550

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 424A, 425

NBKS v Minister for Immigration [2006] FCAFC 174
SBBS v Minister for Immigration [2002] 194 ALR 749
SZBYR v Minister for Immigration [2007] HCA 26
SZCQT v Minister for Immigration [2008] FCA 822
SZGZL v Minister for Immigration [2006] FMCA 1509
SZIBR v Minister for Immigration [2008] FCA 502
SZKUL v Minister for Immigration [2008] FCA 791

First Applicant: SZKPB

Second Applicant: SZKPC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2078 of 2008

Judgment of: Driver FM

Hearing date: 14 November 2008

Delivered at: Sydney

Delivered on: 14 November 2008

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents: Ms V McWilliam

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2078 of 2008

SZKPB

First Applicant

SZKPC

Second 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 handed down on 15 July 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. 

2. There are two applicants, a husband and wife.  The background relating to their claims in the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 7 November 2008.  I incorporate as background for the purposes of this judgment paragraphs 2 through to 6 of those written submissions:

   The applicants are nationals of India who arrived in Australia on 1 September 2006 and applied for protection visas on 11 October 2006.  The applicant husband (‘applicant’) claimed:

   He is a Christian who resided in Kuwait between 1990 and 2005.  When he returned to India, he opened a supermarket (court book “CB” 33).

   After opening his shop, he came to the adverse attention of a man named “Babu”, a notorious criminal who was a member/leader of the Baharatiya Janata Party (‘BJP’) and the nationalist Hindu organisation, Rashtriya Swayamsevak Sangh (‘RSS’).

   Babu threatened the applicant, telling him to close down his shop, and harassed his customers.  The applicant called the police but because of Babu’s political influence, he was released an hour later (CB 34).

   Babu was murdered in a nearby temple, called Meenashi (CB 34), and his supporters mistakenly believed that the applicant had killed Babu (CB 35-36).

   The applicant and his wife were attacked in their homes with swords, and although the police attended the scene, no one was arrested over the attack (CB 35).

   The applicant fled to Bombay, but met one of Babu’s friends who later denounced the applicant as Babu’s killer.  The applicant was stabbed in the stomach (CB 36).

   Tribunal’s decision

   The Tribunal did not accept that the applicant was a credible witness (CB 227.3), relying on the following reasons:

   (a)the applicant’s evidence lacked detail, he was generally vague and evasive and was ready to alter his evidence (CB 227);

   (b)the applicant was clearly ignorant of the contents of a written submission to the Tribunal dated 15 May 2008 (CB 227.9);

   (c)internet searches produced no references to a major temple devoted to the deity Meenakshi at Chittatumukku (CB 228.5);

   (d)internet searches produced no references to the life or death of a person corresponding to Babu (CB 228.9);

   (e)the implausibility of the applicant’s claim to have fled to Bombay to escape the menaces of Babu’s gang, but to have then attended a function in Bombay organised by his cousin, which was also attended by five or six members of Babu’s gang (CB 229.1);

   (f)the applicant wife’s evidence showed a tendency to amend her evidence, and repeated the applicant’s implausible explanations for the absence of any internet references to Babu (CB 229.2).

   As a result the Tribunal was not satisfied that the applicant would suffer harm, or had ever suffered harm in India, because he of targeting by Babu who had political connections with the BJP or the RSS, or that he was ever blamed for the death of such a person (CB 229.8-230).

   The Tribunal was also not satisfied that the applicants would suffer harm because of their Christian faith (CB 230.7).

   Finally, the Tribunal referred to a claim made by the applicant wife in passing, that she would suffer serious harm because she would be seen as controlling the family.  The Tribunal rejected this claim as not being credible (CB 230).

3. The applicants rely upon a show cause application filed on 12 August 2008. I incorporate in this judgment the four grounds of that application:

   1. The Refugee Review Tribunal has failed to see that the applicants satisfy all the criteria required for a protection visa as stated in pages 3 of the reasons.

   2. The Refugee Review Tribunal failed to see that the applicant satisfy the 4 key elements to the Convention definition as detailed by the Tribunal.

   3. The Tribunal attempted to question the applicants in relation to irrelevant matters not stated in the statement of claim in order to reject the applicants claims on credibility grounds.

   4.For the above said reasons the applicants have been denied proper natural and unfair justice and thereby made a jurisdictional error.

4. The application is supported by a short affidavit which I received as a submission. The applicants also filed written submissions on 3 November 2008. I received as evidence the court book filed on

   
   19 September 2008

   .

5. The show cause application grounds are uninformative because they are not particularised. Grounds 1 and 2 attack the merits of the Tribunal decision, which are beyond the scope of this proceeding. In the absence of particulars, there is no substance to the assertion that the Tribunal attempted to question the applicants in relation to irrelevant matters.  The applicants' submissions addressed the question of procedure dealt with by the Tribunal in its reasons under the heading, "Hearing issues," at CB 223 and 224.  I incorporate in this judgment paragraphs 63 to 66 of the Tribunal decision:

   At the beginning of the hearing the second-named Applicant asked to be present while her husband was giving evidence, in order to help him as, she said, his memory was not sharp after their experiences in India.  I explained that a problem with this proposal was that it would put in doubt the weight I could place on the evidence she could give.  She said she could assist him in recollecting answers because the subject, and the things which had been written, were not clear in his mind.  I asked the Applicant if he had ever had treatment by a doctor for any problem associated with his memory.  The second-named Applicant, answering on his behalf, said that so far this he had not sought treatment as he was not interested in doing so while she was with him.  I repeated that it was difficult for me to place weight on their evidence if she was present and talking to him.

   In further discussion about his memory problems the Applicant said it started when he was attacked in his supermarket when he was struck in the chest and hip.  I put to him that he had not received any brain injury in this incident.  At the prompting of the second-named Applicant he said he had also been attacked on his head.  I noted that there was no reference to such an injury, or to any injury, in the description of this incident in the Statutory Declaration attached to the protection visa application.  The second-named Applicant said that Babu and his associates had attacked the Applicant in his shop.  I noted that there were no references in the Statutory Declaration to the Applicant having been injured, to have received medical treatment or to have had to go to hospital.  The Applicant maintained that he had explained everything about the attack in the protection visa application.  I noted that he only claimed to have been hit, but that there were references to their having been wounded in a later attack in their house.  The second-named Applicant said this happened in the shop as well as in the house.

   I noted that there was no medical evidence to suggest that the  Applicant’s memory had been damaged to the point where it was not possible for him to give evidence by himself, and that he had never claimed to have suffered any serious injury to his head.  I put to him that I was not satisfied that there was any reason why the second-named Applicant should be present while the Applicant gave his evidence, and that I wished to take their evidence separately.  The second-named Applicant said she agreed with this approach.

   Having had the opportunity to hear the Applicant’s evidence at length over a hearing which lasted for some three and a half hours I am not satisfied that there was anything to indicate that he was suffering from any intellectual or physical impairment or problems with his memory which would have prevented him from understanding the questions put to him or responding to them.  Nor is there any medical or other evidence to substantiate his claim that [he] suffers from any such problems, and the information at the hearing revealed that he had not sought professional help in this regard.  He remained emotionally composed throughout the hearing.  As noted below I found him to be an unsatisfactory witness but I am not satisfied that this reflected anything more than a natural difficulty in explaining inconsistent or implausible aspects of his claims.

6. The applicants contend that the applicant wife should have been permitted to remain with her husband to assist him to give his evidence because of his asserted medical problems.  The Tribunal notes that no medical evidence was presented to suggest that the applicant's memory had been damaged to the point where it was not possible for him to give evidence by himself and the presiding Member's own observations of the applicant over several hours did not indicate to him that the applicant husband was suffering from any intellectual or physical impairment or problems with his memory.

7. The issue here is one of compliance with s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The common law fair hearing rule is excluded by s.422B of the Migration Act. In order to comply with s.425, the hearing opportunity afforded applicants must be a real one. If an applicant is unable to give evidence and answer questions because of a physical or mental disability which is not accommodated in some way by the Tribunal, the Tribunal may thereby fall into error in failing to comply with its obligations pursuant to s.425. However, in the present case there was nothing apart from the assertion of the applicants that the applicant husband had memory problems to support their request that they be interviewed together. The Tribunal formed a view that if that procedure were adopted it would inhibit the Tribunal in placing weight on their evidence.

8. The Tribunal's conclusion that there was nothing preventing the applicant husband from giving evidence alone was open to it based upon its own observation and the absence of any medical evidence. I am satisfied that the Tribunal met its obligation to afford a real hearing opportunity pursuant to s.425.

9. I otherwise agree with and adopt the Minister's submissions from paragraph 9 through to paragraph 21 of those submissions:

   In relation to Ground 1, this appears to be a complaint about the merits of the Tribunal’s decision, which is not a proper ground of review in this Court.

   In relation to Ground 2, that is also a complaint about the merits of the Tribunal’s decision: see SZIBR v Minister for Immigration and Citizenship [2008] FCA 502 (21 April 2008); SZCQT v Minister for Immigration and Citizenship [2008] FCA 822. Jurisdictional error does not encompass questions that may ultimately prove to be irrelevant to the disposition of an applicant's claims: SZGZL v Minister for Immigration and Multicultural Affairs [2006] FMCA 1509. The Tribunal was entitled to ask such questions of the applicants at the hearing before it as allowed it to test the applicants’ claims: SZKUL v Minister for Immigration and Citizenship [2008] FCA 791 at [28].

   As to the complaint in Ground 3, there is nothing to support the applicants’ general contention that they were denied procedural fairness or natural justice. Specifically, the Tribunal’s record of the hearing demonstrates that the applicant was clearly on notice of the issues for determination (see CB 217-223), in compliance with s 425 of the Migration Act 1958 (‘Act’).

   As to s 424A of the Act, the reasons for the Tribunal’s decision were its adverse credibility finding which was based on:

   (a)evidence provided by the applicants;

   (b)the Tribunal’s view of the implausibility of certain evidence; and

   (c)the lack of evidence of either a temple devoted to the deity Meenakshi at Chittatumukku or of any references to ‘Babu’.

   Evidence provided by the applicants falls within the exclusionary category of s 424A(3)(b) of the Act and does not enliven obligations under s 424A. The Tribunal’s thought processes also do not enliven obligations under s 424A, as it is well established that they are not ‘information’: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] (‘SZBYR’).

   Similarly, although prior to SZBYR there was authority to the effect that the absence of information specifically relating to an individual raised an obligation under s 424A (see eg. NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174) that position can no longer stand in light of the Court’s comments in SZBYR (at [18]) that ‘information’ is not ‘the existence of doubts, inconsistencies or the absence of evidence’.

   Accordingly, in the present case, there was no obligation arising under s 424A of the Act.

   No other procedural obligations under Pt 7 Division 4 of the Act appear to be in issue.

   As to the extra matters raised in the applicants’ submissions, to the extent that these are taken to form new grounds, they do not establish any jurisdictional error on the part of the Tribunal. 

   The Tribunal specifically dealt with the applicant’s ability to give evidence at the hearing, including raising the fact of the absence of medical evidence (CB 223.9-224).  The Tribunal’s record of the hearing indicates that the applicant had not sought ‘professional help’ (CB 224.8), the Tribunal went on to find that the applicant was competent to give evidence.  This was a finding of fact open to the Tribunal and within the Tribunal’s jurisdiction.

   With regard to the allegations of not providing a fair hearing (ie. bias) or conducting the hearing in bad faith, the Tribunal’s record of the hearing does not support these allegations.  The issue of the applicant’s mental state was fully explored, and the decision to have the applicant and the applicant’s wife give their evidence separately followed well established procedures to ensure that the evidence of witnesses is not tainted by hearing what the other has said.

   Following SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 194 ALR 749 at [43]-[44], an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme.  This is especially so where all that the applicant relies upon is the written reasons for the decision under review.

   There is no evidence that this is a ‘rare and extreme’ case where the decision-maker has been shown to have acted in bad faith.

10. I find that the decision of the Tribunal is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.

11. The application having been dismissed, costs should follow the event.  The Minister seeks scale costs in the sum of $5,000.  The applicant wife said that they are not working, but impecuniosity is not a reason for the Court to refrain from making a costs order.  I am satisfied the scale costs in this matter would be appropriate.  I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 November 2008