SZLOV v Minister for Immigration
[2009] FMCA 17
•27 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 17 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of India claiming fear of persecution on the grounds of imputed religious and political beliefs – credibility issues – relocation – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.36, 424A, 474 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; [2007] HCA 40 SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| First Applicant: | SZLOV |
| Second Applicant: | SZLOW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2240 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 November 2008 |
| Date of Last Submission: | 6 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2009 |
REPRESENTATION
| Applicants: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the First Respondent: | Ms Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $4770.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2240 of 2008
| SZLOV |
First Applicant
| SZLOW |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicants, who are citizens of India, ask the Court to review a decision of the Refugee Review Tribunal made on 12th August 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant Protection (Class XA) visas to the applicants.
The applicants ask the Court to remit their matter to the Refugee Review Tribunal for determination according to law. They rely on these grounds:
(1) The Tribunal failed to give any valid reason why it considered that the Applicants exaggerated their evidence and completely rejected the claims on the grounds that the Applicants are not credible witnesses.
(2) The Tribunal’s decision was vague and inconsistent. The Tribunal’s decision was made erroneously without giving careful consideration to the material facts and had made a jurisdictional error.
The first respondent, the Minister for Immigration and Citizenship, filed a response on 4th September 2008 opposing the orders sought because the Minister does not admit that there is any jurisdictional error in the Tribunal decision.
Background
The applicants, who are a wife and husband from Kerala in India, arrived in Australia on 11th May 2007. They applied for protection visas on 14th May 2007. The wife is the first applicant. She claimed in a statement submitted with her application to have suffered persecution from Muslim fanatics who had support from the Communist Party in Kerala because of her work assisting poor Hindus who had been persecuted by the Muslims and the CPI (Communist Part of India). Her husband, who is the second applicant, is a Part D applicant. His claim for protection arises from his membership of the family unit of his wife, who is a Part C applicant.
The first applicant’s claim was set out in a four page statement submitted with the applications for protection visas. In that statement, she claimed that in Kerala the Rashtriya Swayamsevak Sangh (RSS) and the Hindu BJP party were involved in promoting Hinduism in Kerala while the Muslims with the help of the Communist party were trying to colonise the Hindu coastal areas into Muslim areas and convert the Hindus to follow the Muslim faith. She claimed that atrocities were committed against poor Hindu families.
The first applicant claimed that as a result of her activities she was stoned and chased away by Muslims. She claimed to have been assaulted and interrogated by the Muslim authorities and branded as a member of the RSS. After the first applicant married her husband, he became involved in politics and assisted her at the Hindu temple.
The first applicant claimed that she was accused of working for the RSS, even though she had no involvement with them, and she and her husband were assaulted and threatened. She claimed to have been detained for three months but her husband secured her release with the assistance of BJP politicians.
The second applicant fled to Tamil Nadu because he was threatened with abduction. The applicants obtained visas to leave India but before they could do so, the first applicant was arrested by the authorities in December 2006. She claimed:
I was continuously detained at the Trivandrum police station where I was sexually assaulted and was held in prison without any trial for nearly six months. My husband paid huge amount of money to the politicians to release me from the detention. I was released on the condition that I should leave India and should not involve in any activities with the Hindu organisations before my departure. I was told that they would track me down if I go underground to work against the Muslims in any part of India I could be abducted and cut into pieces.[1]
[1] See Court Book at 50
The first applicant summarised her claim by saying that she feared for her safety at the hands of the government authorities. She stated that:
I have no rights to follow my own religion and we are treated like outcasts. I was born and bred at the Hindu and cannot live without attending a Hindu temple and practise my religion. I do not wish to live in fear in country where they wouldn’t permit me to follow my own religion and pray to God with peace. As a Hindu I was targeted by the Muslim fanatics who have wide influence and support from the CPI in Kerala.[2]
[2] Court Book at 51
A delegate of the Minister for Immigration and Citizenship refused the parties’ applications for protection visas on 1st June 2007. The delegate accepted that the first applicant was actively of the Hindu faith and involved in the Hindu temples in Kerala. The delegate also accepted that sporadic religious and communal violence between Muslim extremists and Hindus in Kerala may have caused some Hindus to hold a subjective fear of harm, but found that this discrimination and harassment suffered by Hindus was mainly at the hands of non-state agents and that the State and Federal governments were able and willing to provide adequate protection.
The delegate found that there was no state-sponsored persecution of Hindus in India. Hindus comprise 80.5% of the population of India. The delegate found that the applicants’ claims that Hindus were restricted from practising their religion and treated like outcasts was generally not well-founded in relation to the country as a whole:
As the Indian UPA government remains secular, it is duty-bound to be non-discriminatory in its treatment of its citizens and there is accordingly no indication that the Hindu majority are systematically persecuted nor selectively refused protection.[3]
[3] Court Book 85
The delegate relied on independent country information to find that in Kerala and across India political freedom and freedom of political affiliation were allowed and enforced. Accordingly, the delegate found that the first applicant did not have a well founded fear of harm in Kerala or in India on the basis of her imputed political affiliation with the BJP or her imputed association with the RSS.
The delegate found that there were “credibility concerns” about the first applicant’s subjective fear of persecution in Kerala. Whilst the delegate found there was no objective basis for the harm that the first applicant claimed to fear in Kerala, the delegate also found that the first applicant could reasonably relocate to another part of India.
In summary, the delegate found:
On the basis of the available evidence and for the above stated reasons, in cumulative consideration of all stated issues I accordingly find that the applicant does not have a well founded fear of harm being perpetrated against her should she return to India on account of being Hindu or having an imputed political opinion in opposition to the government. I also find that should the applicant have any apprehension of returning to her home state of Kerala, that she is nevertheless reasonably able to relocate to another part of the country.[4]
[4] Court Book 87
Accordingly, the delegate refused to grant protection visas to the applicants.
Application for Review by the Refugee Review Tribunal
After their applications for protection visas were refused, the applicants applied to the Refugee Review Tribunal on 26th June 2007 for review of the delegate’s decision. The Tribunal wrote to the applicants on
6th July 2007and invited them to attend a hearing which was to take place on 13th September 2007.
The applicants attended the hearing on 13th September and gave evidence. The Tribunal Hearing Record shows that they both took an oath on the Bible.[5]
[5] Court Book 97
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 4th October 2007, affirming the delegate’s decisions not to grant the applicants protection visas.
Application for Judicial Review
The applicants commenced proceedings in this Court for judicial review of the Tribunal’s decision. On 30th January 2008 Driver FM made orders by consent, quashing the Tribunal decision and remitting the matter to the Tribunal to be redetermined according to law.
Further Proceedings before the Refugee Review Tribunal
The Tribunal wrote to the applicants on 8th April 2008, inviting them to attend a hearing to take place on 19th May 2008.
On 11th April 2008 the applicants appointed Siva Logan, solicitor and migration agent, to act as their representative. On 30th April 2008, the Tribunal received a letter from the applicants’ representative, putting additional information to the Tribunal.
The applicants’ representative claimed that, even after the applicants had fled from Kerala, threats continued to be made to their families. The representative’s letter claimed that the first applicant’s brother and the second applicant’s mother were attacked by a Muslim mob on their way home from the Hindu temple on 26th December 2007. As a result of the beating she sustained, the second applicant’s mother was admitted to hospital but died from loss of blood.
The applicants’ representative claimed in the letter that the first applicant’s brother attempted to complain to the police about the death of the second applicant’s mother but was sent away. The letter, which appears to have been written by the first applicant, then went on to say:
My brother continued to canvass amongst the Hindus in Kerala against the Muslims and the Muslim authorities. On 31 December 2007, the Applicant’s brother was abducted and was murdered by unknown people. The applicant and her husband were told that the Muslim criminal agents were involved in the murder. Our relatives had informed the authorities and they refused to involve stating that they should produce witnesses to testify the murder. They refused to register our complaints.[6]
[6] Court Book 134
The representative’s letter stated that the applicants feared for their safety on their return to Kerala or India. The letter then made a claim that the applicants had converted to Christianity:
The applicant and her husband fear that if they were return back to Kerala, India, on the grounds that they are presently converted to Christian religion, the Muslim criminals would still abduct and kill them. Being a Christian would not in any way assist the Applicant and her husband to return back to Kerala India as many Christians are frequently murdered by the Muslim authorities and criminals. In her situation the Applicant feels that the Muslim authorities would be convinced that she had returned back to Kerala as a Christian to gain support from the Christian organisations to fight against the authorities and further would never believe that we had been genuinely converted to Christianity. The RSS which is involved in the abduction and murder of Christians and Muslims would consider the Applicant and her husband as Christians and could act against them. The applicants would face harassment not only from the Muslim authorities and the criminals but from the BJP RSS as well.[7]
[7] Court Book 135
The letter also stated that copies of the death certificates of the first applicant’s mother and brother were attached. A copy of the death certificate of P. Retnamma Pilla, the second applicant’s mother, was included.[8]
[8] Court Book 136-137
The applicants attended the hearing of the Tribunal on 19th May 2008. Both applicants gave evidence with the assistance of an interpreter in the Malayalam language.
After the hearing, on 21st May 2008, the Tribunal wrote to the applicants, inviting them to comment on or respond to information in writing. The letter was written in an effort to comply with the requirements of s 424A of the Migration Act and informed the applicants that the Tribunal considered the information would, subject to any comments they made, be the reason, or part of the reason, for affirming the decision under review. The letter invited the applicants to provide written comments by 4th June 2008. There were 8 separate items of information upon which the Tribunal sought comments, six of which related to inconsistencies in the parties’ evidence and the other two were said by the Tribunal to be relevant to the question of whether the applicants’ fear was well founded.
On the subject of the first applicant’s claim about the death of her brother, the Tribunal’s letter said:
At the oral hearing on the 19 May 2008 your husband stated on your behalf that your brother was murdered in the early hours of the morning at his home when the power was cut. When the Tribunal queried as to why a death certificate had been provided for your mother in law but not your brother, your husband stated at the oral hearing on 19 May 2008 that you could not provide a death certificate as one had come out to Australia and was then returned because you did not pick it up and could no longer get a death certificate.[9]
[9] Court Book 142
The Tribunal also sought comments about the applicants’ claim that they had converted to Christianity:
At the first hearing on 13 September 2007 before a previous differently constituted Tribunal you stated that you could not return to India as you had converted to Christianity, you regularly attend Christian church and swore an oath on the Bible. In written submissions dated 21 April provided by your representative you stated that you are “presently converted to Christian religion”.
At the hearing on the 19 May 2008 both you and your husband gave evidence that you are Hindus, that you attend a Temple at Regents Park and Flemington. Your husband gave evidence and you nodded in agreement that you are both Hindus have Hindu blood and it is not possible to convert you.[10]
[10] ibid
On 3rd June 2008 the Tribunal received the applicants’ written comments, erroneously dated “3 May 2008”. As to the question of the brother’s death certificate, the applicants stated:
Obtaining the death certificates[11] of my brother’s turned out to be impossible as he was murdered by the criminal elements and the Communist government authorities few days after my mother in law’s died on the spot. My brother was murdered after the main switch was turned off by the criminals. There was no power cut at that time. We are trying through my siblings even today to obtain the death certificates for future reference. This is one of the reasons for our fear to return back as the authorities suspect that we could file a case against them on our return.[12]
[11] sic
[12] Court Book 147
The applicants also commented about the information relating to their claim to have converted to Christianity:
We are born and bred Hindus. The good philosophy of Hinduism is that there is only One GOD. For us, following any religion is not barred in our religion. We were taught that we should respect all religions and belief. When we entered Australia, we never knew any Hindu Temples and never knew any Hindus who could assist us. On the contrary, Christian Church and father came to our rescue by assisting us by providing bedding, food etc. We were asked to attend to Church regularly and we did. We were repeatedly asked to convert to Christianity. We never converted ourselves as a real Christian but believed in LORD JESUS, as we believed that JESUS and LORD SHIVA are one and the same GOD. When I attended the first RRT hearing, I never found anything wrong in stating that we are following the Christian religion. In fact I never said that I am not a Hindu in any circumstances. I feel that my parents and my husband’s blood belong to Hindus and we will always be Hindus till we die. But we will never refuse to respect other religions as we believe that GOD is ONE. When we came to know that there were Hindu Temples in
Sydneywe started to visit them every Friday without fail as we did in Kerala. We would not be able to convert ourselves to any other religion as we are Hindus who believe in all religions.[13]
[13] Court Book at 147-148
The applicants provided a number of articles taken from the Internet relating to violence by or against Muslims in Kerala.
The Tribunal re-sent the s 424A letter to the applicants on 17th June 2008, giving them until 10th July 2008 to provide written comments. The reason for this was given as a technical problem relating to the letter of 21st May, which did not give the applicants the correct prescribed period for their comments or response. The letter told the applicants that they could continue to rely on their written response received by the Tribunal on 3rd June 2008. The applicants did not provide any further written comments.
The Refugee Review Tribunal decision
The Tribunal signed its decision on 22nd June 2008 and handed the decision down on 12th August. The Tribunal affirmed the decision not to grant the applicants Protection (Class XA) visas.
In its Decision Record, the Tribunal set out, under the heading “claims and Evidence”, the following material:
·The applicants’ statement accompanying their applications for protection visas.
·The applicants’ evidence to the earlier Tribunal hearing on 13th September 2007.
·The applicants’ written submissions of 22nd April 2008
·The applicants’ evidence to the Tribunal hearing on 19th May 2008
·The Tribunal’s s 424A letter to the applicants dated 21 May 2008
·The applicant’s written response on 3rd June 2008
·Independent country information about India.
The Tribunal’s findings and reasons
The Tribunal, in its findings and reasons, set out what it considered to be the applicants’ claims about their risk of harm in India:
· The applicants are at risk from Muslim extremists as they are perceived to be Hindu fundamentalists
· The Communist Party, which is in power in Kerala, and the Indian government will not protect the first and second applicants but will assist in their persecution
· The first applicant claimed to have been detained and sexually assaulted
· The second applicant claimed to be at risk through his connection with the first applicant
· The applicant had in written submissions claimed to be at risk of harm from Hindu fundamentalists as they had converted to Christianity, although in their response to the s 424A letter they stated that they were not converts to Christianity.[14]
[14] Court Book 195
The Tribunal considered the applicant’s claims, noting that the first applicant claimed as a Part C applicant, i.e. one who has her own claims to refugee status, and the second applicant claimed as a Part D applicant, one whose fears arose as the spouse of the first applicant. The Tribunal stated that it would consider the first applicant’s claims and those made by the second applicant as the spouse of the first applicant.
The Tribunal went on to say:
80. However, the Tribunal also considers that the second named applicant made his own claims during the review. The second named applicant claimed that he was assaulted when coming to the defence of the first named applicant and he had to flee to the next province. The Tribunal finds that the second applicant has substantially complied with lodging a Part C and the Tribunal will address claims made by the second named defendant (sic).[15]
81. The Tribunal does not find that the first named applicant substantially complied with lodging a Part D as a spouse of the second named applicant. There is nothing to indicate that the first named applicant’s claims relate to the second named applicant, all her claims relate directly to her.[16]
[15] Clearly, this should read “applicant”
[16] Court Book 196
The Tribunal found that the applicants were not credible witnesses. It set out its reasons for this finding:
Their evidence changed and was inconsistent throughout the hearing. The evidence given was inconsistent with earlier evidence given in a hearing before a differently constituted Tribunal. The evidence was inconsistent with written submissions provided by the applicants’ representative to the Tribunal and also to their original statements.
83. The Tribunal put some of the inconsistencies to the applicants in a 424A letter. The Tribunal does not consider that the applicants addressed the concerns of the Tribunal. In response they gave a further inconsistent version or did not address the issue of concerns.[17]
[17] Ibid
The Tribunal then examined in detail the inconsistencies to which it had referred and reiterated its view that the applicants “were not witnesses of credit”.[18]
[18] Court Book 199
The Tribunal then proceeded to examine the proposition that, if the applicants had a genuine fear of persecution within the State of Kerala, they could safely relocate to another part of India. The Tribunal set out its understanding of the law relating to relocation, referring to the judgment of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[19]:
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.[20]
[19] (1994) 52 FCR 437 at 440-1
[20] Court Book 200
The Tribunal considered the applicants’ language skills and the extent of the danger that the applicants claimed in Kerala and within India generally. The Tribunal rejected the first applicant’s claim that she could not relocate to another part of India because she only speaks Malayalam, noting that “she has re-located to Australia a country in which generally only English is spoken.”[21] The Tribunal noted that the first applicant is working, her husband can speak several languages, and the parties have looked after themselves since their arrival in Australia in 2007.
[21] Ibid
The Tribunal also considered independent country information, which it quoted, and relied on that information to arrive at the conclusion that the applicants would not be in danger all over India “from Muslim criminal elements, terrorists, The Muslim ISS, NBF, NDP, ISI, BBP, BBF, PDP, PDf, Aluma, local government, tourism developers, communist party and the police.[22]
[22] Court Book 201
The Tribunal found that the first applicant and her husband could relocate to another part of India and that it would not be unreasonable or impracticable for the applicant to relocate to another part of India where Malayalam is spoken.
The Tribunal was not satisfied that there was any risk to the first applicant if she were returned to India and therefore was not satisfied that she had a well-founded fear of persecution for Convention purposes.
The Tribunal concluded that (in summary):
· The applicants were not at risk of persecution due to their political opinions, work with poor Hindus, affiliations, or being perceived as Christians.
· The incidents where the first applicant claimed to have been threatened and detained did not take place, so she did not have a fear that was well-founded.
· If the applicants returned to India they would not engage in future conduct that would put them at risk of persecution.
· The applicants did not face a real chance of persecution if they were to go back to India.
· The first applicant was not a person to whom Australia has protection obligations under the Refugees Convention and so did not satisfy the criterion set out in s 36(2)(a) of the Migration Act for a protection visa.
· As the first applicant did not satisfy the criterion in s 36(2)(a) of the Act, the second applicant, who had applied on the basis of his membership of the first applicant’s family, did not satisfy the criterion set out in s 36(2)(b) of the Act.
· The second applicant had also made claims that only related to him and had “substantially complied with Part C”.[23] Whilst the Tribunal had considered those claims, it was not satisfied that the second applicant was a person to whom Australia had protection obligations and there did not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.
[23] Court Book 202
The Tribunal affirmed the decisions not to grant the applicants Protection (Class XA) visas.
Application for judicial review
The applicants filed their application and affidavit in support on 29th August 2008. They filed a written outline of submissions on 3rd November 2008. Both applicants attended court at the final hearing on 6th November 2008 and the second applicant addressed the Court on their behalf.
The applicants rely on two grounds:
(1)The Tribunal failed to give any valid reason for finding that the applicants had exaggerated their evidence or for rejecting the applicants’ claims on the grounds that they were not credible witnesses; and
(2)The Tribunal’s decision was vague and inconsistent and made without considering the material facts.
The applicants’ submissions
The second applicant complained that the Refugee Review Tribunal did not believe the applicants’ evidence and did not take into consideration the fact that his mother and his wife’s brother had been murdered. He also took issue with the Tribunal’s finding that the parties could relocate to somewhere in India other than Kerala.
He also sought to explain why it was he told the Tribunal that he and his wife were Hindus but had previously given evidence that they had attended a Christian church. He said that, as a Hindu, he believes that there is only one God and he can therefore go to any church.
The second applicant reiterated the applicants’ claims that they would be killed by Muslims if they returned to India.
The applicants’ written submission reiterated the applicants’ factual claims of persecution in India, including the death of the first applicant’s brother and the second applicant’s mother.
The submission claimed that the Tribunal had made jurisdictional error in the following ways:
(a)by failing to consider the political affiliations of the first applicant’s father and failing to give any sound reason as to why it considered that the applicants had not been truthful about that issue;
(b)by failing to understand that the first applicant’s release from detention was not due to any assistance from politicians but by their recognition of the first applicant’s contribution to the Hindu religion and her late father’s affiliations with the BJP. The Tribunal failed to question the applicants about these matters;
(c)by taking into account irrelevant considerations in failing to admit that the applicants had fled India because they were in fear of their lives, notwithstanding that the second applicant’s mother was suffering from cancer;
(d)by rejecting the applicants’ claims about the death of the first applicant’s brother on credibility grounds rather than allowing more time to obtain a death certificate;
(e)by acting in bad faith and taking irrelevant considerations into account when rejecting on credibility grounds the applicants’ claims that they had been asked to convert to Christianity and, as Hindus, had no restrictions on following any religion of their choice; and
(f)by failing to question the first applicant in order to clarify any doubts about discrepancies between her evidence and that of her husband.
The first respondents’ submissions
Counsel for the Minister, Ms Francois, submitted that the Tribunal did not accept the applicants’ claims, “finding that they were not credible witnesses due to changes, inconsistencies and implausibilities in their evidence…The Tribunal also made an alternative finding that the applicants could reasonably be expected to relocate within India.”[24]
[24] First Respondent’s Outline of Submissions at [6]
Ms Francois submitted that there is no error in the Tribunal’s decision. The applicants were seeking impermissible merits review of the Tribunal’s adverse credit findings, but credibility is a factual matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[25] ).
[25] (2000) 168 ALR 407; [2000] HCA 1
Counsel for the Minister submitted that the applicants’ written submissions, which were filed after the first respondent’s submissions, raised additional grounds of review. She submitted that the Tribunal did deal with the issue of the first applicant’s father’s political affiliations at paragraph 85 of its decision[26] and it also dealt with the inconsistency of the applicants’ evidence at paragraphs 53 and 54.[27]
[26] Court Book 196
[27] Court Book 190
Similarly, Ms Francois submitted that there was no error in the way the Tribunal assessed the applicants’ evidence about how the first applicant was able to be released from detention. There is no error in the Tribunal having observed inconsistencies in the evidence.
Again, it was submitted that the Tribunal considered the applicants’ evidence about the second applicant’s mother but it did not accept that she had been murdered. Whilst it was claimed that the Tribunal took an irrelevant consideration into account, the applicants had not identified what the irrelevant consideration was.
Further, whilst the applicants had claimed that the Tribunal had acted in bad faith, Ms Francois submitted that there was no evidence of either actual or apprehended bias.
Finally, counsel for the Minister submitted that no error on the part of the Tribunal was shown in the applicants’ claim that the Tribunal should have questioned the first applicant to clarify the Tribunal’s doubts about the evidence.
In reply, the second applicant told the Court that the Tribunal had not listened to them properly at the hearing and had not accepted that they left India to save their lives. He said that his wife was suffering from depression but the Tribunal had not given any consideration to that fact.
Conclusions
The first matter to be considered is that the Tribunal decided this matter on credibility grounds. The Tribunal did not find the applicants to be credible witnesses and it set out its reasons why it made that finding.[28] Basically, the Tribunal found the applicants’ evidence to be inconsistent and changeable. It also found parts of the applicants’ evidence to be implausible and lacking in detail.[29]
[28] Court Book 196 - 200
[29] Court Book 199
It is well established that credibility findings are factual findings, which are matters for the Tribunal (see Durairajasingham per McHugh J at [67]). Provided that there is evidence upon which such a finding is open to be made, a Court conducting judicial review will not disturb that finding. It is open to the Court to make its own findings based on that factual evidence.
In my view, the matters at paragraphs 82 to 103 of the Tribunal decision[30] contain evidence upon which it was open to the Tribunal to make the credibility findings that it did.
[30] Court book 196 - 200
The Tribunal also found that, if the applicants had a fear of persecution in the State of Kerala, it was reasonable for them to relocate to another part of India where Malayalam was spoken. The Tribunal referred to independent country information about India as well the applicants’ own evidence. It preferred the independent country information, which it was entitled to do.
In arriving at its relocation decision, the Tribunal considered the decision of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[31] at 442-43. Whilst the Tribunal did not specifically refer to either SZATV v Minister for Immigration and Citizenship[32] or SZFDV v Minister for Immigration and Citizenship[33] , I am satisfied that the Tribunal approached the matter appropriately by considering what was reasonable, based on the circumstances of the particular applicants and the possible impact upon them of relocating within India.[34] In SZFDV, Gummow, Hayne and Crennan JJ said:
As indicated in the reasons in SZATV, and as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[35]
[31] supra
[32] (2007) 237 ALR 634; [2007] HCA 40
[33] [2007] HCA 41
[34] SZATV at [24]
[35] [2007] HCA 41 at [14]
Turning to the applicants’ particular grounds, Ground 1 claims that the Tribunal failed to give any valid reason why it considered that the applicants exaggerated their evidence and completely rejected the claims on the grounds that the applicants were not credible witnesses.
This ground is clearly an attempt at merits review of the Tribunal’s findings that the applicants were not credible witnesses. As has been set out above, the Tribunal set out clearly the reasons why it made the adverse findings that it did. These findings were open to the Tribunal on the evidence and there is no jurisdictional error.
The applicants’ Ground 1 has not been made out.
The applicants’ Ground 2 says:
The Tribunal’s decision was vague and inconsistent.
The Tribunal’s decision was made erroneously without giving careful consideration to the material facts given by the Applicants and had made jurisdictional error.
It is difficult if not impossible to see where the Tribunal decision is vague or inconsistent and, in any event, vagueness and inconsistency do not constitute jurisdictional error. The applicants’ claim that the decision was made “erroneously without giving careful consideration to the material facts” is an attempt at merits review. A careful reading of the Tribunal decision shows that the Tribunal considered the substance of the applicants’ claim and there is no indication that the Tribunal failed to take a relevant consideration into account.
The applicants’ Ground 2 has not been made out.
In their written submissions, the applicants claim that the Tribunal fell into jurisdictional error in six ways:
(a)by failing to consider the political affiliations of the first applicant’s father and failing to give any sound reason as to why it considered that the applicants have not been truthful about that issue;
(b)by failing to understand that the first applicant’s release from detention was not due to any assistance from politicians but by their recognition of the first applicant’s contribution to the Hindu religion and her late father’s affiliations with the BJP. The Tribunal failed to question the applicants about these matters;
(c)by taking into account irrelevant considerations in failing to admit that the applicants had fled India because they were in fear of their lives, notwithstanding that the second applicant’s mother was suffering from cancer;
(d)by rejecting the applicants’ claims about the death of the first applicant’s brother on credibility grounds rather than allowing more time to obtain a death certificate;
(e)by acting in bad faith and taking irrelevant considerations into account when rejecting on credibility grounds the applicants’ claims that they had been asked to convert to Christianity and, as Hindus, had no restrictions on following any religion of their choice; and
(f)by failing to question the first applicant in order to clarify any doubts about discrepancies between her evidence and that of her husband.
As to claim (a), the Tribunal did consider the question of the first applicant’s father’s political influence. The Tribunal said:
The applicant gave an inconsistent version of her father’s political influence. The question was about the inconsistencies given in relation to the first named applicant’s father’s political connections. The applicant stated in response that once he had political connections but then they did not. The Tribunal does not accept that the applicants have been truthful about the first named applicant’s father’s political affiliations.[36]
[36] Court Book 196-197
The Tribunal set out its reasons why it did not consider that the applicants had been truthful, namely that their evidence changed and was inconsistent.
Claim (a) does not establish any jurisdictional error on the part of the Tribunal.
The applicants’ claim (b) is a challenge to the Tribunal’s factual findings and is an attempt at merits review, which is not available on judicial review. A failure to question the applicants about an issue does not establish any jurisdictional error because the Tribunal is under no obligation to do so.
Claim (b) does not establish any jurisdictional error on the part of the Tribunal.
The applicants’ claim (c) asserts that the Tribunal took irrelevant considerations into account but does not specify what those irrelevant considerations might be. The claim is, in effect, a challenge to the Tribunal’s factual finding and does not disclose any jurisdictional error.
The applicants’ claim (d) takes issue with the Tribunal’s rejection on credibility grounds of the applicants’ claims about the death of the first applicant’s brother, or at least the failure to provide a copy of his death certificate. The Tribunal said:
Despite several requests and adequate time being allowed no death certificate was provided. The Tribunal is not satisfied that the first named applicant’s brother was murdered as described by the applicants.[37]
[37] Court Book 197
The applicants complain that the Tribunal should have allowed them more time to obtain a copy of the brother’s death certificate. Considering the explanation given for the non-production of the certificate, “the second named applicant gave further oral evidence that he could not provide the death certificate as it was returned to India because he delayed getting to his post office box”[38] , it is hardly surprising that the Tribunal was not prepared to extend the time to provide the certificate for any longer than it did.
[38] Ibid
The applicants’ claim (d) does not disclose any jurisdictional error.
The applicants’ claim (e) refers to “bad faith” on the part of the Tribunal but provides no details. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[39] at [43]). There is no evidence of bad faith.
[39] [2002] FCAFC 361
Again, the applicants complain that the Tribunal took irrelevant considerations into account. However, they provide no particulars of those alleged irrelevant considerations and noting to that effect is apparent in the Tribunal decision.
The applicants’ claim (e) does not establish any jurisdictional error.
Finally, the applicants’ claim (f) asserts that the Tribunal failed to question the first applicant about any doubts it had about discrepancies between her evidence and that of her husband. The Tribunal wrote a letter to the applicants on 21st May 2008 inviting their comments on a number of issues[40], including what appeared to be discrepancies in their evidence and the applicants took advantage of that offer and replied in writing[41]. The applicants have had adequate opportunity to make their case to the Tribunal and the Tribunal was under no obligation to question the first applicant any further than it did.
[40] Court Book 141
[41] Court Book 145
The applicants’ claim (f) does not establish any jurisdictional error.
I am unable to discern any jurisdictional error in the Tribunal decision. It is a privative clause decision and not subject to the order in the nature of mandamus that the applicants seek.
The application will be dismissed.
I will hear submissions as to costs.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 15 January 2009
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