SZKUS v Minister for Immigration
[2009] FMCA 727
•31 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 727 |
| MIGRATION – Review of decision of RRT – whether Tribunal ignored corroborative evidence given by witness contacted by DFAT on behalf of the Tribunal. |
| SZLPO v Minister for Immigration [2009] FCAFC 51 Tickner v Chapman [1995] 57 FCR 451 NAJT v Minister for Immigration [2005] 147 FCR 51 Minister for Immigration v Yusuf (2001) 206 CLR 323 |
| Applicant: | SZKUS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1507 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 July 2009 |
| Date of Last Submission: | 22 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1507 of 2008
| SZKUS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 12 November 2006 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 20 December 2006. On 19 March 2007 a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal. The Tribunal affirmed the delegate’s decision on 12 June 2007 but on 19 September 2007 the Federal Magistrates Court made consent orders remitting the matter. The applicant appeared before the second Tribunal which, on 6 May 2008, affirmed the decision of the delegate and handed that decision down on 27 May 2008.
The applicant sought to invoke Australia’s protection obligations on the convention ground of political opinion. He claimed that he had joined the Indian National Lok Dal (“INLD”) in 1999 as an administrative assistant. In 2000 the INLD came to power in his district and he was promoted to the position of deputy block officer and in September 2004 was made block officer. He organised various activities for the professional politicians in his area including the collection of party donations. When the INLD lost power to the Congress Party he claimed that he was attacked and beaten by persons, two of whom he recognised as members of the Jai Singh Rana group. They demanded money that he had collected from local businessman as donations and threatened to kill him. The applicant complained to the police about the incident and they suggested that they were suspicious of his use of the money and that he ought to bring all the accounts of the donations to them otherwise he would be charged. Later the police searched his house and he was taken into custody but released. He had given nothing to the police and went into hiding.
At the end of the hearing the applicant asked the Tribunal for some time in which to submit some corroborative evidence to it in the form of a newspaper article. The Tribunal granted the applicant a month until 2 September 2007. On 3 September 2007 the applicant submitted two pages of a newspaper written in Hindi and a translation [CB 108 – 110]. The English translation of the article reads as follows:
“The political torture has been started just after changing the Government.
Karpal 1 March
Just after changing the Government in Haryana, political torture started with the influence of Administrative Officer, Anjanthali, [applicant] is one of the member of Indian National Lok Dal, from the Nilokheri Block.
Last night, some members of the Congress party stopped him near Fort (Killa) in Taraori and gave him merciless beatings.
Not much [applicant] was put in the Vehicle. Congresses threatened that you have collected very much money during the ruling of the Om Parkash Chautala and asked him to surrender the said amount, failing which, you will not be saved.
Congresses took the Indian National Lok Dal member in the Police Station forcibly and police tortured him in the present of Local M.L.A. Jai Singh Rana.
In the Police Station [applicant] clarified that the amount collected by him during the ruling time of Indian National Lok Dal, has already been deposited by him in the party fund and said that he has nothing. At this, he was released after getting the directions to deposit 2,00,000 within three days with the Local M.L.A.
On the adoption of the such behaviour by the Congresses, the Members of the Indian National Lok Dal will not oppose hotly in hot words by the M.L.A. Dharam Pal Sidh pur has said in his statement that Congress has started hid Gunda Gardi and if the I.N.D.D. members were tortured, the I.N.L.D. will not shut their mouth and will speak against Congress.
He told that a Special meeting will be called in the Block workers and by planning, they will pose against the Congress as well as its force.”
The Tribunal referred the newspaper article and the translation to DFAT at the Australian Embassy in India. The Tribunal asked DFAT to confirm whether the article was published in the newspaper and whether the reported incident occurred. The communications between the Tribunal and the post can be found in the Supplementary Court Book. The request commences at [SCB 4]. The questions sent to the post are as follows:
“The RRT would be grateful for the post’s assistance in providing answers to the following (if possible, please also detail the nature of the sources consulted in forming this response):
A.Can the post confirm that the report appeared in the Indian press as per the article submitted by the applicant?
B. Can the post confirm whether the reported incident actually took place?”
A draft response was received on 5 February 2008 [SCB 6]:
“QUESTION 6A. Can DFAT confirm that the newspaper report appeared in the Indian press as per the article submitted by the applicant?
DFAT contacted Mr K D Sharma, Editor of the newspaper “Dainik Sandhya – Vyom Kesh Times”, Karnal, Haryana. This newspaper is a local Hindi language publication f the state of Haryana.
Mr Sharma advised that their official normally only keeps hard copies of newspapers for a year. Mr Sharma checked the electronic records of the newspaper for 1 March 2005 that were kept in his office and verified that such an article was published on that day. Mr Sharma read the article over telephone and the details matched the Hindi language record attached to the RRT request.
Mr Sharma agreed to send a copy of the newspaper dated 1 March 2005. DFAT will advise once it has been received.
Mr Sharma believed that the incident took place on either 28 February 2005 or 1 March 2005 after the Assembly election results were announced. The former Minister, Mr Om Prakash Chautala of the Indian National Lok Dal party had lost the election during this period and the Congress party had taken over. Mr Sharma stated that [applicant] had been a party worker (Administration Officer) for the Indian National Lok Dal and it was his responsibility to collect contributions for the party. [Applicant] had apparently collected between INR 1,00,000 to INR 2,00,000 from the residents of Nilokheri, Haryana and deposited it into the party account. Mr Sharma stated that after the election results were announced the Congress party had attempted to acquire the money collected by [applicant]. Mr Sharma further stated that apparently [applicant] was not willing to hand over the party funds and was forcibly taken to a local police station where he was beaten in the presence of a local Member of Legislative Assembly (MLA). Mr Sharma stated that he had been advised that [applicant] was not able to hand over any funds at the time, and as a consequence the police had demanded that [applicant] provide INR 2,00,000 within few days to the Local MLA. Since that day, [applicant] whereabouts have been unknown to people in the town.
Mr Sharma believed the local police did not register any complaints about the incident due to the fact that the police and Congress party workers were involved. If a case was registered, then the police would be obliged to take action.
Mr Sharma further advised that on 31 January 2008, Mr Om Prakash Chautala of Indian National Lok Dal visited Karnal, Haryana. The parents of [applicant] were also present and they requested Mr Chautala to investigate the matter and verify the whereabouts of their son [applicant].
“QUESTION 6B. Can DFAT confirm whether the reported incident actually took place?
DFAT established contact with the Security Division of the Karnal Police. Mr Gajraj Singh, Assistant Sub Inspector and Mr Ram Mehr, Inspector were requested to verify if such an incident took place in 2005. The police officers stated that no such incident was recorded with the police station and declined to provide or verify any further information.”
Some concerns were then raised with the Tribunal about the questions revealing the identity of the applicant. A new question was put and was responded to on 4 April 2008 [SCB 18]:
“Question A
Please provide further advice on whether the reported incident actually took place. Please note, post should not release the applicant’s details in the context of any investigations. The RRT recommends that in investigating this, post might: a) refer to alternative local news sources to if the incident was reported elsewhere; b) consult with local human rights grounds who may have knowledge of whether such an incident, involving the targeting of an INDL worker, or INDL workers, too place at this time; c) consult with the INDL as to whether they are aware of the targeting of any of it workers in this manner at the time reported..
Response to Question A:
Post was unable to obtain further confirmation of whether the incident took place. To further validate the information in relation to the subject, post checked with the website of “The Tribune” newspaper, a widely published publication in the states of Haryana and Punjab. Post checked the archived news articles on Tribune’s website for February and March 2005. No information of such an incident was found, however the articles published during that period did provide detailed information about the political party change over in Haryana.
Post then established contact with Mr Sanjay Malik (via telephone on +91 09354105334), a reporter of “The Tribune” located at the district headquarters in Haryana. Mr Malik stated that he had been employed with the Hindi language publication of “The Tribune” in Karnal, state of Haryana for the last 20 years. Mr Malik was questioned about whether he had any knowledge of any disputes between the two political parties, INDL and Congress, in 2005 during party change over and where an INDL party worker was forcefully taken to the police station. Mr Malik was not able to recollect any such incidents. Mr Malik further stated that he personally did not report on such incidents nor did he hear about it from his colleagues working for other printed media.
Mr Malik was then asked about the existence of a newspaper called “Dainik Sandhya Vyom Kesh Times” and he stated that this was a local evening newspaper published in Karnal. Mr Malik commented that “Dainik Sandhya Vyom Kesh Times” is “not a valued newspaper and is not in demand by the residents at all”. As per Mr Malik, “The Dainik Sandhya Vyom Kesh Times” is published once in two or three days with the circulation of maximum 300 copies.
Post then contacted Mr Narender Sangway (via telephone on +91 09416000789), the District President of the Indian National Lok Dal (INDL) party. Mr Sangwan claimed to have been involved with INDL party since 1991. Mr Sangwan was question about the timing of when the Congress party took over in Haryana. Mr Sangwan responded that the Congress party took over in March 2005 although he could not recollect the exact date. Mr Sangwan was then question if he was aware of an incident in 2005 in Karnal, Haryana and nearby districts where one of the INDL party workers was beaten by the Congress party workers and was forcibly taken to the local police station. Mr Sangwan confidently stated that no such incident took place. Mr Sangwan also spoke to other INDL party workers to recollect if such incident took place and finally verified that there was no such incident.
Post then contacted Dr Ved Prakash (via telephone on +91 09416002425) employed as the District Public Relations Officer based in Karnal, Haryana for the last five years. The District Public Relations Office is a local state body responsible for control of the mass media in the region. Dr Prakash was questioned whether he had any knowledge of an incident in Karnal, Haryana and nearby districts in Haryana where one of the party members of INDL was beaten by the Congress workers and was forcibly taken to the local police station in 2005. Dr Prakash responded that he was not aware of such an incident. Dr Prakash also verified with some of his staff members about the incident and stated that none of his staff were aware of it.”
In its Findings and Reasons the Tribunal dealt with these matters under a section entitled “Corroborative Evidence” at [CB 138]:
“Corroborative Evidence
The Tribunal has considered and sought further information about the newspaper articles submitted by the applicant. While the Tribunal accepts that the newspaper articles appeared in the local Karnal newspaper, the Tribunal does not accept that the articles report on incidents that actually occurred. This is because despite repeated enquiries DFAT was unable to obtain information to verify that the reported incidents occurred. The Tribunal prefers the evidence provided by DFAT than the evidence provided by the applicant and gives greater weight to the view it has formed about the applicant’s credibility than the documents that the applicant has provided.”
It is the manner in which these questions were asked and the Tribunal’s treatment of the responses that form the basis for the applicant’s Amended Application filed in court on 22 July 2009:
“1.The Tribunal acted in breach of s 424(1) of the Migration Act 1958
Particulars
(a)The Tribunal failed to have regard to information corroborative of the applicant’s claim, that being information obtained by the Department of Foreign Affairs and Trade (DFAT) from Mr K D Sharma, editor of the newspaper, “Dainik Sandhya – Vyom Kesh Times”
2.The Tribunal acted in breach of its duty pursuant to s 424(2) and (3) of the Migration Act 1958
Particulars
(a)DFAT, acting as agent for the second respondent, invited the following individuals to give additional information, such invitations not being given in writing as required by ss 424(3) and 441A of the Migration Act.
(i) Mr K D Sharma
(ii) Mr Gajraj Singh
(iii) Dr Ved Prakash
(iv) Mr Ram Mehr
(v) Mr Sanjay Malik
(vi) Mr Narender Sangwan”
The applicant accepts that since the decision of the Full Court in SZLPO v Minister for Immigration [2009] FCAFC 51 this court would be bound to find that there was no jurisdictional error in the manner in which DFAT invited the individuals referred to in Ground 2 to provide information. The applicant formally submits that SZLPO was incorrectly decided. The argument at the hearing concentrated on Ground 1. Mr Karp put the matter in his usually admirably succinct way at paragraphs 14 to 16 of his submissions:
[14]The difficulty with the paragraph of the Tribunal extracted at paragraph 11(g) above is that it completely ignores the information given to DFAT by Mr K.D. Sharma and which is reproduced at SCB 6. It is simply not true that, “… DFAT was unable to obtain information to verify that the reported incidents occurred.” As stated above (paragraph 7), Mr Sharma gave information to DFAT which was corroborative of the applicant’s claims, the more so because it went well beyond that in the newspaper article submitted by the applicant.
[15]As at the date of the applicant’s application to the Tribunal, s.424(1) of the Migration Act stated,
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
[16]The Tribunal’s failure to have regard to Mr Sharma’s evidence, obtained via DFAT amounts to jurisdictional error.”
Mr Karp argued that in order for the Tribunal to have given genuine consideration to the statements made by Mr Sharma it was required to engage in “an active intellectual process” in relation to it; Tickner v Chapman [1995] 57 FCR 451 at 462 referred to in NAJT v Minister for Immigration [2005] 147 FCR 51 at [212]. Certainly the Tribunal makes no mention of the remarks made by Mr Sharma which appeared to corroborate the story given by the applicant, but a careful consideration of those remarks reveals that Mr Sharma is not speaking as a direct witness of the events. He said that the applicant “had apparently collected between INR 1,00,000 to INR 2,00,000 from the residents of Nilokheri,” he stated that “apparently the applicant was not willing to hand over the party funds and was forcibly taken to the local police station”. Mr Sharma stated that “he had been advised that the applicant was not able to hand over the funds”. Mr Sharma “believed the local police did not register complaints”.
On the other hand the DFAT officer spoke to an assistant sub inspector and an inspector of police to see whether the incident had actually taken place and they told him that no incidents of that nature were reported. The post sought some information about the newspaper which indicated that “it is not in demand by the residents at all … [it] is published once in two or three days with a circulation of a maximum of 300 copies.” The post contacted the district president of the INDL who had been involved with that party since 1991. He had no knowledge of the incident and “confidently stated that no such incident took place”. That witness spoke to other INDL party workers and no one else could verify the incident.
I am of the view that the Tribunal did not ignore the comments made by Mr Sharma at all. It actually sought to verify them. It was unable to verify them and decided to prefer the evidence provided by DFAT to that provided by the applicant, which would have included Mr Sharma’s comments because the Tribunal noted and accepted his direct evidence that the article had been published by his newspaper. It seems to me that the Tribunal merely preferred direct evidence, albeit of a negative, than the hearsay evidence and supposition provided by Mr Sharma. I am satisfied that the Tribunal did give the DFAT report, on the conversations with Mr Sharma, genuine consideration of the type described by Black CJ. The Tribunal is not obliged to make reference to every piece of evidence; Minister for Immigration v Yusuf (2001) 206 CLR 323 I think that if one considers the second articulation of Question A found at [CB 18] it will be reasonably clear that the Tribunal had read what Mr Sharma had said and it was those statements that it wanted to be checked by the methods of consultation therein suggested.
I am not satisfied that the Tribunal ignored this evidence and thus fell into the jurisdictional error pressed for by Mr Karp. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 31 July 2009
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