SZLFH v Minister for Immigration
[2008] FMCA 676
•19 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLFH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 676 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZLFH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2578 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2578 of 2007
| SZLFH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Tribunal)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 26 July 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in March 2007 and applied for a protection visa. In connection with his protection visa application he provided a statutory declaration in which he set out the background to his claimed involvement as an activist of the Tamil Liberation Movement (or Tamil Liberation Army (TLNA)). He claimed that he was arrested, charged and gaoled for two years and that during that time he was tortured and mistreated by the police who sought information about the leader of the party. He claimed that he knew he would be killed by the state police and the special taskforce police and that after he was released he obtained a passport with the help of a friend. A party member helped him to get a visa and to escape.
The applicant was refused a protection visa by a delegate of the first respondent. He sought review by the Tribunal. He provided a submission in connection with his review application referring to the delegate's decision. He disputed the suggestion that he had not provided any evidence to support his claim or detail of his political activities. He claimed that, as he had stated in his statutory declaration, his political activities were to bring more people to the party and to inform poor people about their basic rights by spreading the policies of the party in printed notices. He claimed that the police were bribed to allow him to escape India. He claimed that several party members had been arrested, that some were in prison and some were missing and that the ruling government sought to destroy all TLA activists. He referred to the possibility of obtaining evidence to support his claims.
The Tribunal invited the applicant to attend a hearing. He provided the Tribunal with copies of death certificates for his parents.
In its reasons for decision the Tribunal summarised the applicant’s written claims and the information provided by him at the hearing and also his responses to questions about the Tamil Liberation Movement, the leaders and policies of that organisation. The Tribunal recorded that in the course of the hearing it put to the applicant concerns that it had with his lack of knowledge in certain respects and also its concern about certain aspects of his evidence such as his failure to be involved in any activities in support of the liberation or separation of Tamil Nadu while in Australia.
The Tribunal recorded that at the end of the hearing it summarised its doubts about the applicant’s claims of membership in and involvement with the TNLA and involvement in political activities supporting the liberation of Tamil Nadu. It recorded that the applicant had responded that as he was only with the organisation for a short time he could not provide more evidence, that he had no supporting documents and could not submit them. The Tribunal also recorded that it put to the applicant that it had doubts about his claim to have been arrested and gaoled for two years and that he would be harmed on return to India and that the applicant stated that he had no parents and that his friend had told him to get out of India and find a better life.
In its findings and reasons, after referring to country information about the situation in Tamil Nadu, the Tribunal addressed the applicant's claims. It summarised his claim as a claim to fear harm at the hands of the Indian authorities because of his membership of the Tamil Liberation Movement (or Tamil Liberation Army (TNLA)) and his political activities in support of the liberation of Tamil Nadu. The Tribunal found that it was not satisfied as to the accuracy of the applicant's claims that he was involved with the Tamil Liberation Movement/TNLA or that he engaged in any political activity or that he was arrested and gaoled for this reason. It gave reasons for that lack of satisfaction, including the fact that while the applicant claimed that he had been involved with this organisation for a two year period employed in cooking, washing and distributing pamphlets, his responses to questions about the organisation at the Tribunal hearing had revealed him to be “largely ignorant of its nature and background”. The Tribunal found that his evidence in this area was:
… notably vague, generalized and lacking in circumstantial detail, and it did not suggest that he had any special knowledge which might reasonably be expected of someone who had been actively involved with it.
The Tribunal provided examples of the applicant’s lack of knowledge, errors and gaps in his knowledge. It found that it was “obvious that he was wholly unaware of the violent history” of the organisation and that apart from asserting that the organisation stood for the separation or liberation of Tamil Nadu he was “unable to make any comment about its policies”. In response to the applicant’s explanation that he had not spent long with the organisation, was only employed to cook, wash and distribute pamphlets and was not told the facts by other members, the Tribunal found that his claimed period of involvement was not short and that during that time he had allegedly worked to further the political aims of the organisation. It also had regard to the fact that he claimed to have been arrested and interrogated by the police and gaoled for two years because of his involvement with the organisation and its political aims.
The Tribunal did accept that a person who had been employed in only menial work by such an organisation and who had only limited formal education could not reasonably be expected to provide a detailed account of its philosophy, policies or history and might not be taken into the full confidence of others in relation to sensitive matters or those which had to do with security. It also accepted that some two or three years had passed since the applicant's last claimed contact with the organisation. However, the Tribunal found:
…even when these considerations are given their full weight, I am not satisfied that the Applicant's near-complete ignorance about the organization is at all consistent with his claims concerning his involvement with it. For this reason I am not satisfied that he did, in fact, join the organization or involve himself with it in the period from 2002 to 2004, or at any other time.
Hence the Tribunal was not satisfied that the applicant was involved in distributing pamphlets on behalf of the organisation, arrested for doing so, interrogated or gaoled. Nor was it satisfied that he was sought by the police after his alleged release from prison or that he lived in hiding until a friend or relative arranged for him to leave India.
The Tribunal also considered the prospect of future harm to the applicant based on his claim that if he returned to India he would resume his claimed political activities and that this would be a reason for the police to arrest and harm him. While the Tribunal accepted that the applicant may well hold a political opinion in favour of Tamil Nadu's separation from India, it was not satisfied that he was ever a member of the Tamil Liberation Front/TNLA, or that he ever distributed pamphlets on behalf of the organisation to further this political goal. It had regard to the fact that he did not claim to have taken any other action at any time to express his political opinion in India and that he had not done so since arriving in Australia. It was not satisfied that his failure to do so was due to fear of the possible consequences of so doing or that he would either do anything to express his political opinion if he were to return to India or would not do so because of a fear of possible consequences. Hence the Tribunal was not satisfied that there was any reason to believe the applicant would be harmed by the Indian authorities for reason of his political opinion. It observed that at the hearing the applicant had stated that there were no other reasons for his claimed fear of harm in India and on all the evidence was not satisfied that there was a real chance the applicant would suffer serious harm amounting to persecution in India.
The applicant sought review by application filed in this Court on 21 August 2007. He relies on an amended application filed in Court. He also made a number of oral claims today.
Dealing first with the oral claims made today by the applicant, he claimed generally that he was not given a good hearing by the Tribunal or a good inquiry, that he had been afraid and that he did not speak out well. He seemed to suggest that he could not reply properly to the Tribunal and that in some way he did not have a proper opportunity to give evidence to the Tribunal. However there is nothing in the material before the Court to suggest that the Tribunal fell into jurisdictional error in the manner in which it conducted its review on the basis of these generally expressed contentions by the applicant.
Insofar as the applicant contends that he was not given a proper opportunity to give evidence to the Tribunal I note that he provided a statutory declaration in support of his protection visa application, a written submission and copies of his parent’s death certificates to the Tribunal. He attended a Tribunal hearing. The only evidence of what occurred in that hearing is the material in the court book. It is apparent from the hearing record that it was not a short hearing and the Tribunal summarised at some length what occurred in that hearing. There is nothing in its summary of that hearing or otherwise in the material before the Court to suggest that the applicant raised any concerns with the Tribunal about his state of mind or his ability to put his claims or to support any claim that he did not have a proper opportunity to do so.
The Tribunal referred to the absence of supporting documentation. In oral submissions today the applicant indicated that he had not had supporting documentation from India and if he had an opportunity for a rehearing he may be able to obtain such documentation. However it is not apparent from the material before the Court that the applicant sought further time to provide supporting documentation or any adjournment of the Tribunal hearing. I note in that respect that the lack of substantiation and detail in his claims was brought to his attention by the decision of the delegate of the first respondent prior to the Tribunal review. No lack of procedural fairness, whether consisting of apprehended or actual bias or otherwise, or failure to comply with s.425 of the Migration Act 1958 (Cth) whether in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 or otherwise, is apparent on the material before the Court on the basis of the applicant's general contentions.
There are two generally expressed grounds in the amended application: a failure by the Tribunal to complete the exercise of jurisdiction and a claim of a denial of natural justice. As indicated no lack of natural justice is apparent on the material before the Court. I note the effect and operation of s.422B of the Migration Act. As contended by the first respondent there is nothing in the material before the Court to suggest any failure by the Tribunal to comply with s.424A(1) of the Migration Act. In relation to s.425 it appears on the material before the Court that the Tribunal did raise dispositive issues with the applicant and give him the opportunity to present argument on those issues in the hearing.
The amended application also contains particulars which raise other grounds. I asked the applicant for clarification of some of these particulars. He was not able to assist other than to confirm that he was not contending that the Tribunal had failed to take into account material that he had put before it, but rather that he had not had the opportunity to submit further documentation and wished to do so now. This does not establish jurisdictional error.
The first particular is as follows:
The Tribunal rejected my claim on the basis that the court papers were not presented to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding limiting the meaning of s424 in contravention to the Article 1A(2) of the Convention thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support.
As indicated above, the fact that the applicant did not submit further information to the Tribunal in the form of supporting or corroborative evidence is not such as to establish that the Tribunal fell into error. The Tribunal did not require corroborative evidence or make a decision simply on the basis of the absence of corroborative evidence. Rather it rejected the applicant’s claims of involvement with the Tamil Liberation Movement/TNLA and the consequences thereof, based on factors such as the vagueness, generalisation and lack of circumstantial detail in his claims, the fact that his evidence in response to questions about the organisation and its policies and his activities did not reveal the knowledge which might reasonably be expected of someone actively involved with the organisation and the fact that even allowing for the limitations on the nature of the work he claimed to have engaged in and other matters, the Tribunal was not satisfied that the applicant's “near complete ignorance” about the organisation was consistent with his claims concerning his involvement with it. In considering the applicant’s claimed fear of future harm the Tribunal had regard to its findings as to a lack of past involvement in India or any expression of a political opinion in Australia, not simply the absence of corroborative or supporting documentation.
Insofar as it was intended to suggest that the Tribunal had obtained information under s.424 and must have regard to it, such contention is not made out on the material before the Court. No jurisdictional error is established on the basis contended for in this particular.
The next particular is that the Tribunal failed to satisfy itself as to whether the applicant had a well-founded fear of persecution “based upon probative material or logical grounds”. It is not clear whether this particular is in fact a ground on its own or is intended to relate to the following particular, which is that “the situation of the PWG political activities was not taken into account in spite of the independent country information report mentioning the people's revolutionary struggle launched by the PWG against the State”.
Insofar as there is a general contention of a lack of logic or no probative evidence, this is not a case in which jurisdictional error is made out on such a basis. The Tribunal findings were based on the evidence of the applicant himself at the Tribunal hearing and the inadequacies and shortcomings in that evidence. The Tribunal's conclusions cannot be said to be illogical, let alone illogical in a sense demonstrating jurisdictional error. Nor is the case one in which there is unreasonableness in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 or otherwise (see Minister for Immigration & Citizenship v Le (2007) 164 FCR 151). Insofar as the applicant contends that it was necessary for the Tribunal to make inquiries of some sort, there is nothing in the material before the Court to suggest that this was a case in which the Tribunal undertook to do so. The circumstances are not such that the Tribunal failed to obtain important information on a critical issue which the Tribunal knew or ought reasonably have known was readily available in the sense considered in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.
In relation to the particular about the situation of the PWG, the applicant did not point to any particular mention of PWG political activities. There is a reference in the independent country information cited in the Tribunal decision to the fact that the first leader of the TNLA was active as a member of the PWG. It was described as a Maoist extremist organisation and mention was made of the fact that the TNLA leader at one time joined another PWG leader in supporting calls for a separate Tamil nation.
However there is nothing in the material before the Court to indicate that the applicant made a claim based on involvement in the PWG such as to raise the necessity for the Tribunal to consider such a claim as either made or arising squarely on the material before it in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. Nor is there a lack of logic or unreasonableness in the Tribunal failing to address specifically the PWG in the findings and reasons part of its decision, given the nature of the applicant's claims.
The amended application contends that the Tribunal failed to make findings on all of the applicant's claims. The particulars are:
The RRT may freshly to refer to or reconsider the material placed before it by the applicants including those statutory declarations and other court material evidences (sic).
The Tribunal considered the claims made by the applicant in connection with his protection visa application and in writing and orally to the Tribunal. It may be that this ground is intended to be a reference to the death certificates of his parents which the applicant provided to the Tribunal. The Tribunal noted that it had received copies of documents purporting to be such death certificates, but it also noted that apart from his claims based on political opinion there were no other reasons for the applicant’s claimed fear of harm in India. There is nothing in the material before the Court to suggest that he made a claim based in any way on the deaths of his parents as a basis for a claim to fear persecution for a Convention reason.
The Tribunal did note that at the hearing, after describing his claims and contending that he would continue to involve himself in the cause of separation of Tamil Nadu, when asked if he feared harm for any other reason the applicant said he had no parents and no other family in India. Such a claim does not give rise to a claim to fear persecution for a Convention reason such as to necessitate specific consideration by the Tribunal in its decision. There was no obligation on the Tribunal to address the death certificates insofar as there was no indication of their relevance to the applicant's refugee claims. No failure by the Tribunal to make findings on the applicant's claims has been established.
Finally the applicant claimed that “in the light of unfavourable and hostile situation, I fear for the safety of my life”. Such a claim seeks merits review which is not available in this Court.
For the sake of completeness I note that insofar as the Tribunal decision involved an adverse credibility finding, credibility findings are matters for the Tribunal par excellence and it has not been established that the findings made by the Tribunal in that respect were not open to it for the reasons that it gave on the material before it.
As no jurisdictional error has been established the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful. As an unsuccessful applicant he should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters. I have had regard to the fact that the amended application was filed after the respondent’s written submissions were prepared.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date:
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