SZKTY v Minister for Immigration
[2007] FMCA 1973
•19 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1973 |
| MIGRATION – Procedural fairness – Tribunal free to rely on country information – accuracy a matter for the Tribunal – rejection of credibility – inevitable consequence to affirm decision of the delegate. |
| Migration Act 1958 (Cth), ss.420, 422B, 424A, 425, 474 |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Abalos v Australian Postal Commission (1990) 171 CLR 167 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 |
| Applicant: | SZKTY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1878 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 19 November 2007 |
| Date of last submission: | 19 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2007 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondents: | Ms E. Bagget of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1878 of 2007
| SZKTY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application 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 2 May 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant has not appeared for the hearing, but there is evidence before the Court that the applicant has left Australia. In those circumstances, the first respondent seeks an order dismissing the matter for the applicant’s non-attendance. The Court is, however, in a position to make its decision on the merits of the application and will proceed to do so.
Background
On 8 September 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that his Muslim faith had made him the subject of discrimination in India. The applicant claimed that the Indian authorities suspected him of “spying” and he “was discriminated as a traitor”. The applicant claimed that he was held without trial and tortured by the police and various security agencies, and was released only after his father paid one million rupees to the authorities (Court Book “CB” 19-22).
The application was refused by a delegate of the first respondent on 1 December 2006 (CB 56) and by the Tribunal on review on 2 May 2007 (CB 123). The matter is now before this Court pursuant to an application for judicial review filed on 15 June 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the applicant was given procedural fairness;
·Whether country information was prepared for the purpose of rejecting applications by people from India; and
·Whether the applicant was given the opportunity to comment on inconsistencies in his evidence.
The application
In his application, the applicant set out the following grounds:
(1)The RRT make decision on 2 May 2007. The RRT handed down decision on 22 May 2007.
(2)The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
(3)I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.
James Hathaway 1991 “The law of refugees status” (Butterworths Canada) contrary to it’s claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that.
The applicant fees [sic] that the Tribunal did not give weight to the statements made by him in particular harassment
The member based his whole decision on one sided information prepared for denying the application for the people coming from India.
Findings of the Court in relation to the grounds in the application
Ground one raises no ground of review and is rejected.
Ground two alleges an “incorrect application of the law to the facts”. No particulars have been provided and no submissions made in support of this ground. It has not been established and is rejected.
Ground three alleges a denial of procedural fairness because the Tribunal did not believe the applicant’s evidence. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
An applicant must establish their case to the satisfaction of the Tribunal. As stated by the Tribunal at CB 138.3:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
By virtue of s.422B of the Migration Act 1958 (Cth) (“the Act”), Division 4 of Part 7 of the Act is an “exhaustive statement of the natural justice hearing rule” that applied to this matter. The Tribunal sent two s.424A letters to the applicant (CB 99 and 110) and a s.425 letter (CB 83). It has not been alleged that a provision of Division 4 was not complied with. A denial of natural justice has not been established.
The Court accepts the submission for the first respondent that the inconsistencies in the applicant’s case found by the Tribunal were covered in the 424A letters. Inconsistencies were also covered at the hearing (CB 142.3). There was no failure to afford procedural fairness.
The applicant claims that the decision of the Tribunal is contradictory to the statement that “A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details”. The Tribunal is entitled to accept or reject evidence before it: Lee (ante). There is no denial of procedural fairness in rejecting evidence.
The applicant complains that the Tribunal took an overly stringent approach to the question of credibility. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court does not find that the Tribunal has failed to use or has palpably misused its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court agrees with the following submission in another matter:
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
There is nothing to show an improper approach to the issue of credibility. The Tribunal examined the material carefully and set out its reasons for finding that the applicant was not a credible witness (CB 139.2).
The applicant complains about the lack of weight given to his statements about harrassment. Weight is a matter for the Tribunal: Lee (ante). As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The applicant alleges that the Tribunal relied on information prepared for the purpose of denying applications by people from India. The Tribunal relied on the independent country information referred to in its decision (CB 136.6, 141.5, 142.6). As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The Tribunal was entitled to rely on country information, and the accuracy of it was a question for the Tribunal, not this Court. It has not been established that the country information was prepared for the purpose of rejecting applications by people from India. The decision by the Tribunal was based mainly on inconsistencies in the applicant’s evidence, and not on country information. Those inconsistencies are referred to in the written submissions for the first respondent as follows:
The RRT made the following factual findings as the basis for dismissing his application and affirming the decision of the delegate:
· That the father’s alleged periods of detention did not occur (CB 139.3).
· That the detentions of the applicant alleged in April-October 2005 did not occur (CB 139.6).
· That the applicant did not travel to the United Kingdom whenever his father went to Pakistan and the RRT did not accept that the applicant feared harm from the Indian authorities or anyone else on the occassions he travelled to the United Kingdom (CB 140.1).
· That it was not satisfied that he had a subjective fear of persecution at the time of his travel to the United Kingdom because of the failure of the applicant to make inquiries or claim asylum in the United Kingdom (CB 140.3).
· The applicant’s many trips back to India meant that the applicant did not have a well founded fear of persecution at those times (CB 140.4).
· That the RRT did not believe that the police warned the applicant to notify them of his departures at the time of his last trip to the United Kingdom in November or December 2005 (CB 140.5).
· That the RRT did not believe that the police had given a copy of the applicant’s passport to the Indian immigration authorities after 30 June 2006 and told them that they had to sign the applicant over to them when he returned.
· That the police report submitted by the applicant to the Tribunal did not disclose that the applicant had complained to the police that he had been detained by the police. The failure of the report to list the complaint led the RRT to conclude that the applicant did not complain and this was because he had no been detained after 11 July 2006 (CB 141.1-141.4).
· Indian immigration officials do have access to computers which allow them to check if there are any charges or criminal records against departing Indian nationals. If the applicant was of concern to the authorities at the time of his departure to Singapore and Australia the computer would have stated that. The RRT did not accept that the applicant had a problem when he returned from Thailand because the police warned the applicant to notify them of his departures at the time of his last trip to the United Kingdom in November or December 2005 (CB 141.5).
· The RRT was not satisfied that the applicant had suffered the persecution he alleged in 2005 and 2006 (CB 141.6).
· The RRT did not accept that Muslims had been treated differently to Hindus by the authorities because of their religion in the investigations into the July 11 2006 bombings (CB 141.9).
· That the Indian authorities had no interest in the applicant at the time of his departure to Australia, which was after July 11 2006 and that it did not accept that the applicant had a well founded fear of being detained because of the July 11 2006 bomb blasts, if he returned to India in the foreseeable future.
· That the failure of the applicant to refer to his membership of the Bombay Muslim Welfare organisation at the hearing led the RRT not to accept that he feared being detained by reason of his membership of that body (CB 142.2).
· That the applicant did not have a well founded fear of persecution by the Indian authorities for any Convention reason if he returned to India in the foreseeable future (CB 142.5).
· As country information did not suggest there were communal tensions in Bombay caused by the July 11 2006 bombings, the applicant did not have a well founded fear of persecution by non state protagonists for any Convention reason if he returned to India in the foreseeable future (CB 142.6).
Having found those inconsistencies and having rejected much of the applicant’s case, clearly the applicant had not established his case: the inevitable consequence was that the Tribunal affirmed the decision of the delegate. Ground three is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that 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 is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: M Giang
Date: 26 November 2007
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