SZLOA v Minister for Immigration

[2008] FMCA 881

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOA v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 881

MIGRATION – Review of decision of RRT – where Tribunal considered the applicant provided changing evidence – where applicant provided documents to the Tribunal which were given no weight because of their illegibility – whether breach of s.424A Migration Act 1958 (Cth) – whether Tribunal complied with s.430(1) Migration Act 1958 – whether Tribunal conducted hearing in accordance with s.425 Migration Act 1958.

Migration Act 1958 (Cth), ss.430, 424A

Minister for Immigration v Yusuf [2001] 180 ALR 1
Minister for Immigration v SBAA [2002] FCAFC 195
M175 v Minister for Immigration [2007] FCA 1212
SZJZE v Minister for Immigration [2007] FCA 1653

Applicant: SZLOA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3317 of 2007

Judgment of: Raphael FM

Hearing date: 5 June 2008

Date of Last Submission: 5 June 2008

Delivered at: Sydney

Delivered on: 5 June 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent's costs assessed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3317 of 2007

SZLOA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 10 April 2007 and applied to the Department of Immigration & Citizenship for a protection (class XA) visa on 19 April 2007. On 16 May 2007 a delegate of the Minister refused to grant a protection visa. On 13 June 2007 the applicant applied for review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal on 30 July 2007. Prior to that hearing he received a letter from the Tribunal requesting him to provide certain information. On the same day (26 June 2007) he received a letter under s.424A of the Migration Act1958 (Cth) (“the Act”) setting out certain information which would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa [CB 53]. The applicant responded to that letter [CB64]-[65] and also provided certain documents [CB66]-[68]. On 11 September 2007 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on 2 October 2007.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations can be found in the application for a protection visa and in particular at [CB19]-[21]. The applicant claimed that he was a reliable worker of a political party known as the IML. The president had been attacked by some Hindu fundamentalists and the supporters arranged a counterattack. One of his friends was injured. It appeared that this event took place in 2004, after which the applicant left Kerala and commenced working in Mumbai. He claimed that BJP workers in Maharashtra informed upon him and he was dismissed from his job and returned in February 2006 to Kerala. He was attacked again in Kerala on 4 March 2006. He claimed he was in hospital for two months and the bottom of his face had been injured. He referred to a further attack on 22 June 2006 in which his brother was brutally murdered. He fled again to Bombay, where a Mr Abdullah of the IML told him to flee to Australia.

3. At the commencement of the hearing the Tribunal asked the applicant to confirm that the claims made in his application for protection were still his claims and he did so. The Tribunal asked if he had any further claims [CB79]-[80]:

   "The applicant stated that he did have a further claim.  The applicant claimed that he had student membership in a political party while he was at school.  The applicant claimed he worked for the Indian National League.  The opposition party was VHP at the same institution.  The applicant claims that he was interested in artistic aspects and leadership in the party membership.  The applicant claims he was contesting a position and the opposition manhandled him. ... The applicant claims he was then  accused of being a religious fundamentalist. ... The applicant claims he continued his interest in politics [after school] and at the time of the next election he contested a position in his local ward.  The Tribunal asked what area and position.  The applicant then said he was standing to be elected and become the member.  The applicant then changed his evidence and said he wanted to be a secretary.  The applicant claimed VHP workers attacked him and he retaliated.”

4. The applicant's evidence to the Tribunal after the extracted passage then seemed to follow the format of his original claim. He told the Tribunal that he was being threatened by Mr Sreeny, a leader of the VHP. The Tribunal questioned the applicant about the IML party and the IUML party. It seems clear from a reading of the independent country information extracted by the Tribunal and found at [CB81]-[82] that the IML is a very old Muslim party, which after the split in 1948 splintered and the majority of its members became members of a new party known as the IUML. The applicant was asked when this split took place and he told the Tribunal he thought it was in 1992. That was contrary to the evidence from the independent country information which referred to splits in 1948 and again in 1988. The applicant was asked who was president of the VHP and the IUML parties. The applicant gave some names but they did not appear to be the names known to the Tribunal. The independent country information does indicate that there are problems between the IUML and the BJP.

5. In its findings and reasons the Tribunal first refers to what it describes as the applicant's changing evidence. It appears that the letters which the Tribunal wrote to the applicant were received by him but were not responded to. The response to which I have referred earlier in these reasons was dated 8 August 2007, after the hearing [CB84]:

   "The applicant's evidence changed and was inconsistent throughout the hearing.  The applicant at the hearing stated he had organized for documents and a response to be provided to the Tribunal by his friend, the applicant then changed his evidence and said that he had chosen not to respond, later the applicant's evidence changed a third time and he said he did not receive any requests.  The applicant stated he stood for the position of member in his student days and then said it was as secretary.  He claimed he was involved in politics but was unable to answer general specific questions about the party.  During the hearing he said he was a leader and then later a member.  When pressed to be specific about who was threatening him he named a Mr Sreeny as a leader.  When asked why Mr Sreeny's name did not come up on any of the research he stated it was because he was only local.  The applicant's evidence is that he had been heavily involved in politics since his student days however, when the Tribunal asked general questions about the political parties he was involved with he replied he did not know the history.  The applicant could not answer basic questions about who was the present leader of the party he was involved in.  The applicant's evidence lacked any detail or plausible answers. The applicant's claims are unsubstantiated and despite given ample opportunity to supply further evidence and comments prior to and after the hearing, he did not do so.”

6. After the hearing the applicant wrote the letter to which I have previously referred and provided the Tribunal with some documents. These are the documents found at [CB66]-[68]. One is a summons to a witness, another is a summons to an accused person and the third is a first information report. The documents are difficult to read but the real problem with them is that anything which would identify them with the applicant is written in Malayalam. The Tribunal arranged for someone to telephone the applicant and ask him to provide originals of these documents. It is unfortunate that there was not also a request for a translation. No originals were provided and the Tribunal says at [CB84]:

   "As the documents are illegible the Tribunal cannot place any weight on them.  The Tribunal has given the applicant the opportunity to explain what is in the documents but he has not done so.”

7. I am not sure that this is entirely correct.  Certainly the emails and case note found at [CB69] and [CB70] do not do this. There is no reference to the word "legible" in the emails, but one of them says:

   "I spoke to the applicant [named] as requested at 12.53 PM and conveyed the message regarding the original document to be submitted to RRT ASAP.  The applicant has the original with him and will submit it after his friend talks to you.  I have given your contact details and his friend should get back to you before COB today, I have said to call preferably before 4.00 PM.”

   I can only assume that the friend did not get back because I am sure that if he did there would have been a note made.

8. The Tribunal dealt with the applicant's claim that he feared persecution because he was perceived as a fundamentalist Muslim [CB86].

   "The applicant did not provide any details relating to his fear of persecution on the grounds of religion, other than in connection with his involvement with the IML.  In the absence of any evidence beyond the applicant's own assertions, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of his religion.”

9. The Tribunal did not accept that the applicant was involved in student politics or that he would be involved in the future and did not consider that there was any real chance of him being persecuted for any Convention reason in the foreseeable future. It found that the incident outlined by the applicant had not taken place and therefore he did not have a fear that was well founded.

10. On 27 March 2008 the applicant filed an amended application in this Court. A number of complaints relating to the Tribunal hearing are there set out. The first is that the Tribunal did not give to the applicant before the hearing the information it had about the history of the IML or the IUML and did not give the applicant the country information it had about Kerala. The applicant claims this is “against s.424A of the Migration Act”.

11. Section 424A of the Act does require a Tribunal to provide certain information to an applicant in particular ways but that section does not apply to information:

    “424A(3)(a) … that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.”

    This information about the political party seems to me to fall within that exemption.

12. The second matter complained of by the applicant is that the Tribunal in making its determination failed to record its decision in accordance with s.430 of the Migration Act. I am satisfied that there is authority that s.430 is a procedural section which cannot give rise to jurisdictional error: see Minister for Immigration v Yusuf [2001] 180 ALR 1 and Minister for Immigration v SBAA [2002] FCAFC 195 at [36]-[38].

13. The third matter raised by the applicant was that the Tribunal failed to ask a question it was in the circumstances of this case legally required to ask. The particulars are:

    “(a) whether the Indian authorities provided a standard of protection comparable with international standards.”

    I accept that if the Tribunal had found that the applicant's fears were genuine or, more accurately, that the experiences which he had had constituted a threat to him of the type outlined in the Convention then it was bound to consider the availability of State protection within India, but as the Tribunal has found that it could not accept the applicant's claims it was not necessary for it to take this further step.

14. The next matter raised is that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations central to his claims "because I spent three hours being questioned without a break and felt stressed and intimidated". This claim if made out is in essence one that the Tribunal did not comply with s.425 of the Act and provide the applicant with a meaningful hearing. Gray J refers to this problem in relation to interpretation in M175 v Minister for Immigration [2007] FCA 1212 where at [51] he says:

    "Section 425(1) of the Migration Act obliged the Tribunal to invite the appellant to appear before it to give evidence relating to the issues arising in relation to the decision of the Minister's delegate. It is now well-established that this obligation is much more than a formality. Even though the invitation be issued, if an applicant is not afforded a real opportunity to give evidence, so that the promise of the invitation has not been fulfilled, then the Tribunal will have failed to comply with its obligation under s.425(1). See Minister for Immigration v SCAR [2003] FCAFC 126; also SZBEL v Minister for Immigration [2006] HCA 63."

15. However, although also in relation to the interpretation, the Courts have placed a heavy onus upon an applicant to establish that the hearing did not fulfil the promise of the invitation. So in SZJZE v Minister [2007] FCA 1653 Middleton J said at [21]:

    "With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that:

    (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or

    (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.”

    By analogy one would say that in order for the applicant to establish that the length of the hearing and the nature of the questioning was such as to negative any ability of the applicant properly to put his case, he would have to produce, at the very least, the tape-recording and preferably a transcript of the hearing. The applicant has not done this and has not requested an adjournment to do so. I am unable to assist the applicant in relation to this ground.

16. The fifth ground raised by the applicant was that the Tribunal failed to carry out its review function and to exercise its jurisdiction. This is particularised as follows:

    “(a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from VHP members.

    (b) In relation to above, the Tribunal did not consider the applicant's claim that his IML activist resulted in threats by Hindu fundamentalist.  The Tribunal also failed to acknowledge that my family members also suffered in communal riot.”

17. I regret to say that, giving these particulars their most charitable interpretation, I am unable to understand them. I cannot see any reference to a communal riot or his family suffering therefrom in these claims. I do acknowledge that the applicant refers to the murder of his brother and that if he returns it would affect his family [CB 40]-[41]. I am satisfied that the Tribunal considered these matters as part of the applicant's evidence which it later dismissed as lacking in credibility.

18. The sixth complaint made by the applicant about the Tribunal's decision is that it failed to find that he fulfilled the necessary elements of the Refugees Convention. This is no more than a request for merits review of the Tribunal's decision which this court cannot indulge in. There is then an extract of what is headed “Law Relating to Exercise of the Tribunal's Powers” but this does no more than set out ss.91R, 414, 415 and 420 of the Act and, with the exception of s.420, I do not read them as constituting a separate ground. In relation to s.420 it is said that the Tribunal failed to analyse properly the future harm that the applicant might face if he goes back to India. The Tribunal did analyse this. That is what is found in its findings and reasons and which lead to the conclusion that he did not have a well-founded fear and that there was no real chance of him being persecuted for any of the Convention reasons in the foreseeable future [CB 86].

19. Before me today the applicant said that he had some other matters which I should take into account. The first was that the Tribunal mistook his evidence. The applicant said that he had told the Tribunal he was a member of the INL and did not refer to the IML. He believed the Tribunal had been questioning him about the wrong political party and because the IML was not the relevant political party he could not be expected to know very much about it. There are number of difficulties with this submission. The first is that the documentation clearly shows that he did refer to the IML, although I accept that as a late addition he referred to the Indian National League as a schoolboy [CB 89]. The references to the IML are consistent with his claims and are found in his original application at [CB19]. At no time does the applicant say that he tried to correct what he now tells us is an error on the part of the Tribunal. He was asked several questions about the IML and the IUML. It would appear that he had a number of opportunities to tell the Tribunal that it was talking about the wrong political party. I am satisfied that the Tribunal dealt with the claims that the applicant had put and that it did not fall into error in the manner suggested by the applicant.

20. The second matter raised by the applicant before me was that the Tribunal had not noticed a significant scar on his chin. This is not correct.  At [CB85] the Tribunal says:

    “The applicant claimed that when he returned to his village he was attacked and hospitalised for two months.  At the hearing the Tribunal could not see any injuries or scars on the applicant's face.”

    I do not know whether the applicant has a readily visible scar on his face or not.  I certainly do not know that if he does have such a scar it existed at the time of the Tribunal hearing.  If the applicant wishes to challenge the Tribunal's finding in this regard then he would have had to have brought credible evidence to the effect that the scar existed at the time and was difficult to have been ignored.

21. The third matter raised by the applicant seems to me to have been a further particularisation of the original complaint concerning the political parties. He says that the member asked about the IUML and its office bearers and that he did not know much about the party because he was a member of the INL. I have already dealt with this ground.

22. Finally, the applicant raised the question of the documentary evidence. He said that he gave the Tribunal the photocopies and when the Tribunal had asked for the originals he made inquiries and discovered that they were not available from the Court. The difficulty that the applicant has is that he did not tell the Tribunal this and the situation seems to have been left on the basis of the email found at [CB69] from which one can infer that the applicant did have the originals and that someone would get back to the Tribunal. In these circumstances the Tribunal's decision as to how to treat the documents seems to me to be one entirely within jurisdiction. It gave the documents no weight because all it had in front of it was some paper, which had no clear relationship with the applicant or his claims.

23. I am unable to provide the applicant with the review he seeks on the grounds that he raises. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $2,800.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  26 June 2008