SZLJI v Minister for Immigration - [2009] FMCA 218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 218

MIGRATION – RRT decision – Indian applicant claiming persecution by Muslim extremists – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.91R(1), 424A(3)(a)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SZMSD v Minister for Immigration & Anor [2009] FMCA 96

Applicant:

SZLJI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2620 of 2008

Judgment of:

Smith FM

Hearing date:

9 March 2009

Delivered at:

Sydney

Delivered on:

9 March 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2620 of 2008

SZLJI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in 2007, on a date when he had only three days before his visa would expire. On 14 May 2007, the last of those days, he lodged an application for a protection visa. It did not disclose any assistance being given, and said: “all the evidence which I have [indecipherable] in my country will be submitted later”. The parts of the application asking the applicant to explain why he left India, and why he did not wish to return, were not completed at all. A covering letter said only: “if I back to my country I will be killed by enemies”, without explaining this. The letter said: “I will need few days time to tell about my problems”.
However, no evidence nor details of his refugee claims were provided to the Department of Immigration in the following two weeks, and on 29 May 2007 a delegate refused the application on the ground that relevant facts had not been provided.
The applicant lodged an appeal to the Tribunal on 22 June 2007. He included a typed statement of claims, and some general information about the activities of Muslim extremists in India, but no corroborative evidence of his own claimed history.
In his statement, he claimed that his father had died in 1992 in hospital after being attacked by Muslims in a market dispute, in which the applicant’s father had intervened as a policeman. He claimed that “my mother and I complained to the police but there was no witnesses and we couldn’t file a case against the perpetrators”.
He claimed that in 1999: “I was abducted by a group of Muslims goondas who threatened to kill my mother and my siblings if we filed a case against them”. He later joined the BJP Hindu youth group, and “along with the youths tried to make inquiries as to my father’s murderers”. However, this was difficult “due to the communist rule in Kerala”.
He claimed that in 2006 he made more inquiries to find those responsible, and in November 2006 he obtained information which identified the culprits. They were arrested, but were released. Subsequently, in March 2007:
I was abducted by unknown Muslim persons who took me to Delhi and was kept in a room for nearly three weeks. … they said they had information that I was involved in the BJP youth wing and was involved in espionage against the Muslims and especially I had to be taken away and killed for the arrest by the authorities of their Muslim colleagues.
At the end of his detention, he was taken in a van which was abandoned when its petrol ran out. The applicant was rescued from it, and managed to get to Bombay, where his mother arranged a visa for him to leave the country immediately.
The applicant attended a hearing held by the Tribunal as first constituted. On 30 August 2007, it handed down a decision which affirmed the delegate’s decision. However, this was set aside by consent order of this Court, and the matter was then fully reconsidered afresh by a reconstituted Tribunal. It appears not to have taken into account any of the earlier proceedings, but no complaint is made about that by the applicant.
The applicant attended a hearing held by the reconstituted Tribunal on 27 March 2008, and at that time was assisted by a solicitor. At the hearing, the Tribunal questioned him about his claims, and put to him various inconsistencies that arose in his evidence. Some of these were significant, including the circumstances of his father’s death, his accounts of two abductions by Muslim extremists, and other matters. All of these matters were subsequently put to the applicant again in writing, with an invitation for written comments. However, the applicant responded that he relied “on my responses given in the hearing as my responses for the information in your letter”.
At the hearing, the Tribunal asked the applicant whether he “could provide the Tribunal with his father’s death certificate and information about the attack from the police records”, and the applicant said he would try to do so. After the hearing, the Tribunal sent the applicant a letter inviting him to submit that evidence. The applicant then provided one document, which was said to be “a copy of my father’s death certificate”. As reproduced in the Court Book, it is not easily read. It purports to be a handwritten certificate of death with various stamps. It contains a line in English: “date of death”, showing a date in 1992, and has other writing in English. However, it does not appear to provide any corroboration of the applicant’s claims about the circumstances of his father’s death.
The Tribunal handed down a decision on 16 September 2008 which affirmed the delegate’s decision. In its “Findings and Reasons”, the Tribunal explained a series of reasons why it concluded that the applicant was not a witness of truth, and that “the applicant’s claims for protection had been fabricated in an attempt to elicit Australia’s protection obligations”.
The first reason given by the Tribunal referred to the applicant’s delay in putting forward his claims. The Tribunal said:
87.The applicant delayed in providing the basis of his claim for protection, on the basis that he did not have time to do so. The Tribunal does not accept this explanation; the applicant arrived in Australia on 11 May 2007, and applied for the protection visa on 14 May 2007. There was no indication, even in very brief terms, of the basis for the protection. He indicated that he would send this information but did not do so.
88.The information was only provided in a statement dated 22 June 2008, which was the date the application for a review was made to the Tribunal. The statement is quite detailed but not particularly complex or lengthy; there appears no reason why it could not have been provided, even in a less detailed form, with the protection visa application. This leads to the conclusion that the claims made were manufactured for the purpose of the application and are not genuine.
The Tribunal then referred to the applicant’s conflicting evidence about the circumstances of his father’s death. It identified significant differences, comparing the applicant’s evidence at the hearing with information in his protection visa application.
The Tribunal also referred to information from the Department of Immigration which had been put to the applicant. This showed that he had acquired his visa in India, travelled to Australia, found accommodation, and made his protection visa application, in circumstances identical to two other people who had travelled with him. The Tribunal did not accept that this was just a coincidence, and concluded that he left India “with others as part of a group for the purpose of making claim for protection and not because he left in fear of his life as claimed”.
The Tribunal rejected the applicant’s claim that his father had died as a result of injuries from an attack by Muslims, and also such of his claims as flowed from that claim. The Tribunal also did not accept the applicant’s claims to have been abducted twice, due to his inconsistent and implausible evidence. It rejected the applicant’s claim to have been a member of the BJP, and found that he was not a member and had not been involved in any significant way with the BJP. The Tribunal pointed to discrepancies in the applicant’s claims to have been abducted in 2007 and was satisfied that this did not occur. The Tribunal said:
The applicant has not provided any corroborative evidence and the Tribunal is not satisfied that this claim is true, based only on the applicant’s evidence alone, as he is not a witness of truth.
The Tribunal referred to s.91R(1) of the Migration Act 1958 (Cth) which requires that persecution which is feared must involve “serious harm” to the applicant and “systematic and discriminatory conduct”. However, based on its earlier findings, it found that the applicant would not experience “serious harm” as defined in the Migration Act if he returned to India. It said that it “cannot accept that the applicant would face a real chance of persecution for a convention‑based reason if he was to return to India”.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter to the Tribunal. I can only make these orders if the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he is qualified for a protection visa or any other permission to stay in Australia.
The applicant’s application contains six grounds, which are repeated in his amended application. They are:
1.The Tribunal failed to accord procedural fairness under s424 of the Migration Act 1958 as considered by the full federal court in NARV v MIMIA (2003) FCAFC 262 insofar as the Tribunal relied in independent evidence as to the prevalence of claim about political persecution. On the basis of that the Tribunal was not satisfied as to the genuineness of applicant’s claims nor of the genuineness of applicant’s statement about my harassment of systematic nature.
2.The Tribunal failed to act that the applicants satisfy the definition of “Refugee” as defined in article 1A(2) of the convention. To go further the Tribunal failed to see that the applicants satisfy, the four key elements that are required to satisfy the convention definition. The applicant state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protection visa.
3.The applicant given adequate evidence to the Tribunal that he was physically assaulted on several occasion, but the Tribunal member failed to consider the applicant’s genuine claim.
4.The Tribunal conclusion that the applicant delayed in providing the basis of his claim for protection, (RRT Decision paragraph 119). The applicant arrived in Australia (Adelaide) on 11 May 2007 and he lodged the application for a protection visa in Sydney on 14th of May 2007. As the applicant new in Australia he was not able to submit his story on time because of his difficulty with English.
5.The Tribunal finds that the applicant will not experience serious harm as defined in the Migration Act upon return to India, (RRT Decision paragraph 124). The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
6.Therefore the applicant submit that this was a serious misdirection made by the Tribunal by denying the applicant an opportunity to explain at this hearing and thereby was prejudiced against the applicants refugee claims.
The first ground is taken from a precedent which has no bearing on the present case. It cites authority concerning s.424A(3)(a) of the Migration Act which has been superseded by subsequent judgments, in particular Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572. Moreover, the present Tribunal’s decision did not rely upon independent evidence about persecution in India. The basis of the Tribunal’s decision was purely its refusal to accept the veracity of the applicant’s uncorroborated claims of persecution.
The second ground appears only to invite the Court itself to make a determination on whether the applicant’s circumstances satisfy the definition of refugee. However, it does not have this function. The Tribunal’s decision appears in my opinion to have been clearly open to it, as a matter of law, on the evidence before it.
In relation to the third ground, I can identify no part of the applicant’s claims which were not considered by the Tribunal. As I have noted, the applicant gave inconsistent and implausible evidence about his two abductions, and in my opinion it was well open for the Tribunal to disbelieve him.
The fourth ground challenges the Tribunal’s reasoning, in which it relied upon the applicant’s failure to provide any indication of his refugee claims before he brought his appeal to the Tribunal. The applicant today in his oral submissions repeated his complaint that the Tribunal did not accept his explanations for the delay in his providing his statement of claims. He also complained that the delegate did not allow him more time to do this. However, the Court is not concerned directly to consider the lawfulness of the procedures of the delegate, since they were superseded by the Tribunal’s review.
The Tribunal’s reasoning about the applicant’s delay in disclosing his claims did not rely purely upon the absence of any information accompanying the visa application, but addressed a significantly longer period of delay. In my opinion, it was open to the Tribunal to form the view that the complete absence of any mention of the applicant’s history in the two‑week period before the delegate made his decision reflected upon the genuineness of the claims which subsequently emerged. The Tribunal considered the applicant’s explanations, and it was entitled not to be persuaded by them.
The fifth and sixth grounds suggest a ‘serious misdirection’ by the Tribunal, without particularising it. They also are taken from precedents which are irrelevant to the present case, insofar as they refer to issues of relocation which were not part of this Tribunal’s reasoning.
To the extent that they could be applied to the present Tribunal’s reasoning, they misunderstand the Tribunal’s reference to s.91R(1) which occurred at the end of its reasoning, after it had rejected all of the applicant’s claimed history. I can find no error in the Tribunal’s failure at that point in its reasoning to be satisfied that the applicant faced any risk of serious harm if he returned to India.
Insofar as the applicant was entitled to an opportunity to be heard, in my opinion he was amply afforded that opportunity, both at the hearing and in the Tribunal’s subsequent written invitations for comment and evidence.
The applicant’s other oral submissions today maintained that what he had told the Tribunal was true, and he suggested that there had been some difficulties in his memory which had given rise to mistakes in his oral evidence. However, as I have explained to him it was the Tribunal’s duty, and not mine, to consider the significance of his inconsistent evidence.
The Minister’s counsel drew my attention to the presence in the Tribunal’s decision of an error in the following paragraph, which occurred at the end of the Tribunal’s reasoning where it considered the applicant’s claims about his father’s death:
106.The applicant has provided a document which he claims is his father’s death certificate. However, it has not been translated into English for the Tribunal. Without being able to read the document, the Tribunal is not prepared to accept the applicant’s own evidence alone about the alleged event, as the Tribunal has found him not to be a witness of truth. Further, the conflict in the applicant’s own evidence, as to the circumstances of his father’s death, noted above, leads the Tribunal to conclude that his father’s death was not in fact related to any alleged attack on him.
The Tribunal made a mistake in thinking that it was not possible to read the documents submitted by the applicant, insofar as it contained information about a date of death. It appears also to have been mistaken in thinking that the document “has not been translated into English for the Tribunal”, although it might have been at a disadvantage in understanding its authenticity and contents, due to the illegibility of some of the document.
Assuming that the Tribunal did ‘ignore’ the contents of all this document, I am not satisfied that this error provides a material jurisdictional error in the present case (compare SZMSD v Minister for Immigration & Anor [2009] FMCA 96). The Tribunal accepted that the applicant’s father had died in 1992, but it was not persuaded that the circumstances were those claimed by the applicant. The document which was before the Tribunal, insofar as it is legible in English, confirmed only the date of his death, and did not provide any probative evidence at all about the circumstances. Any failure by the Tribunal to appreciate the contents of the document was clearly immaterial to its reasoning on this part of the applicant’s claims, and to his claims as a whole. I accept the submissions of counsel for the Minister that no ground of jurisdictional error arises from this error in the Tribunal’s consideration of the evidence.
For the above reasons, I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 18 March 2009