SZLPY v Minister for Immigration
[2008] FMCA 229
•29 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 229 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether questioning unduly oppressive – no obligation on RRT to conduct investigations – procedural fairness – fact finding not function of judicial review – country information – onus of proof – benefit of the doubt. |
| Judiciary Act 1903, s.39B Migration Act 1958, ss.5, 36, 65, 91R, 91S, 420, 424, 424A, 426, 427, 474 |
| Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v Commonwealth of Australia (1998) 197 CLR 510 Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors (1985-1986) 162 CLR 24 Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZLPY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3508 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 31 January 2008 |
| Date of last submission: | 31 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 12 November 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3508 of 2007
| SZLPY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 22 September 2007 and notified to the applicant by letter dated 24 September 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 8 February 1976 and was aged 31 years at the time of his application for a protection visa.
The applicant claims to be a national of India, brought up in Mumbai, and of Hindu faith.
The applicant arrived in Australia on 14 January 2007 on an Indian passport issued in his own name, holding a sub class 676 tourist visa.
The applicant lodged an application for a protection visa on 19 February 2007 on the basis that he and his family were being tortured and harassed by political leaders in Mumbai because of his political affiliations (Court Book (CB) 17).
On 23 April 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 17 May 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 44–47).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 29 May 2007, the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments at a Tribunal hearing on 3 July 2007 (CB 50–51).
On 19 July 2007, the Tribunal sent the applicant a letter pursuant to s.424A inviting him to comment on information that it considered, would, subject to any comments made by the applicant, be the reason, or a part of the reason, for affirming the decision that is under review by 13 August 2007 (CB 65–78).
On 13 August 2007, the applicant requested an extension of time to provide comments to the s.424A letter (CB 79), and by letter of the same date, the Tribunal granted the request extending the period to 19 September 2007. The applicant did not provide a response to the s.424A letter.
The applicant’s claims and evidence (CB 88–95)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 88–90), including that:
·the applicant said he left India because he and his family were harassed many times by ‘political leaders’ and left the country because of the ‘torture and harassment’ they endured. The applicant feared that if he returned to India the police would kill or arrest him;
·the applicant also feared being attacked by Muslims in India;
·after completing his studies, the applicant became a member of the Bharatiya Janata Party (BJP), was elected a district committee member, and became a member of the Radical Youth League (RYL). Both of these groups aimed to improve the lives of the majority of poor people. He became an official in the RYL and he and some of his colleagues were arrested and tortured by the police. After his release he and his family were forced to change their address to avoid police persecution;
·the applicant was again arrested after being caught distributing a newspaper that spoke out against the rich, the police and the authorities in India. He was sentenced, imprisoned and tortured after this arrest, then arrested again, tortured and held for one month;
·after his release from prison, the applicant continued his ‘movement work’ before the police assaulted his family and threatened to kill him. He was again arrested and tortured in 1995, and detained for 15 days and gaoled for three months. His family was assaulted again following his complaint against the police. The applicant's family dispersed and he travelled to Thailand as a visitor in June and July 2006;
·the applicant spent a number of months ‘underground’ in Thailand, travelling to different villages, was then detained by police and ‘tortured many times’ before travelling to Hong Kong in August 2006;
·the applicant was harassed by Muslim groups who would encourage him to ‘support their activities’. The applicant was told that a special branch service in India had a file on him and he was a wanted person. To avoid being killed the applicant and his family organised his visa to come to Australia;
·the applicant claims to be well known to police in India and fears persecution if he were to return.
The Tribunal summarised the applicant’s claims at the Tribunal hearing (at CB 90–95). Essentially, the key issues arising are reflected in the information put to the applicant in the s.424A letter for his response, which are further reflected in the Tribunal’s findings and reasons.
The Tribunal’s findings and reasons (CB 95–99)
The Tribunal found that:
·the applicant is not a witness of truth (CB 98). The applicant’s claims are not accepted as true (CB 96);
·all the matters raised in the Tribunal’s s.424A letter cast doubt on the applicant’s overall credibility, namely:
· the fact that the statement accompanying the applicant’s application was in substantial parts identical with a statement made by another applicant, (who had lodged his application before the applicant had arrived in Australia), led the Tribunal to conclude that the applicant’s application was copied from the other applicant’s statement and the applicant’s claims in his statement were therefore fabricated (CB 96–97, 98);
· inconsistencies in the applicant’s evidence concerning affiliations with political groups with which he claimed to be involved (CB 97, 98);
· inconsistencies in the applicant’s evidence regarding how long he was detained, and when he was taken to court (CB 97, 98);
· inconsistencies in the applicant’s evidence with regard to whether he was ever harassed by Muslims (CB 98);
· the applicant’s passport reflects that he travelled to Thailand on two occasions in June 2006, to Singapore in July 2006 and to Hong Kong in August 2006. The fact that he returned to India on each of these four occasions before coming to Australia and that he did not apply for refugee status but returned to India, casts doubt on whether he had a well founded fear of being persecuted if he returned to India, and suggests that the applicant’s claims in this regard are a fabrication (CB 98).
In summary, in rejecting the applicant’s claims, the Tribunal stated that:
… I consider that his claims are a fabrication and that he does not in fact fear persecution for the reasons he has claimed if he returns to India. I do not accept, in particular, that the applicant was ever involved in any form of political activity, whether in the BJP, the Radical Youth League or the Radical Youth Group … I do not accept that the applicant was ever arrested, detained, convicted of any offence, imprisoned, tortured, harassed, physically beaten or otherwise persecuted, whether by the police, by political leaders or by Muslims, for reasons of his involvement in political activities. …I do not accept that …the police came to his house, assaulted his family and burnt the house down, nor that his father and brother learned that the Special Branch had his file and that he was a ‘wanted person’, nor that he had to pay money to the immigration officers at the airport in order to leave India. I do not accept that the applicant was ever harassed by Muslims in Mumbai for reasons of his religion as a Hindu or because of his claimed involvement in the BJP. I do not accept that, if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his real or imputed political opinion, his religion or his membership of any particular social group for the purposes of the Convention including any of the political groups with which he claims to have been involved or his family …
I am not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to India now or in the reasonably foreseeable future. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention …
The proceedings before this Court
The applicant filed the application in this Court on 12 November 2007 setting out 2 grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 31 January 2008 with the assistance of a Hindi interpreter. Mr Johnson appeared for the first respondent.
Grounds of application
The grounds of the application are:
i) That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant's claims, because I spent 2 hours being questioned without a break and felt stressed and intimidated.
ii) The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
iii) Particular of Grounds:
a.The tribunal did not consider the applicant who had been under immense and intimidating pressure from Muslim fundamentalist and police.
b.In relation to above the Tribunal did not consider the applicant's claim that his distinguishable position as a BJP district committee member and Hindu activist resulted in threats by Muslim Fundamentalist.
iv) The Tribunal exceeds its jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
v) The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
vi) The RRT member emphasised on some irrelevant questions at the hearing and ignored my sexuality that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
vii) The Tribunal applied the wrong test.
Particulars
(a)The Tribunal left out individual elements of the applicant’s claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
(b)By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof on the applicant and failed to give the applicant the benefit of the doubt.
Grounds 1 and 2 of the application.
Grounds 1 and 2 appear to raise two different points. Firstly, the applicant’s statement that he was questioned for two hours without a break and felt stressed and intimidated is not supported by the applicant placing the transcript of the evidence of the Tribunal hearing before the Court, nor did the applicant raise any complaint, nor seek an adjournment of the hearing either during, or after the Tribunal hearing.
In the applicant’s oral submissions to this Court, he states that:
I was confused while cross questioning, the member of RRT was asking me about the names of the leaders, working with me, working for the opposition groups, and then after say 15 or 20 minutes back he used to come back and ask for those names again. And like cross questioning for two and a half hours, I was confused (transcript, 31/1/08, p 19).
The Tribunal Hearing Record (at CB 53) demonstrates that the hearing commenced at 9.40am and ended at 10.50am, being a total hearing time of 1 hour and 10 minutes, well short of the two hours claimed by the applicant under ground 1 and even more short of the two and a half hours asserted in the applicant’s above oral submissions.
There is nothing disclosed on the face of the Tribunal decision record to show that the applicant was questioned for an excessive amount of time without a break, that the number and nature of the questions asked by the Tribunal were unduly oppressive, repetitive or burdensome, nor that the applicant became unduly stressed or intimidated in any way. I am satisfied that there is nothing that can be detected in the conduct of the questioning in this case from which a fair-minded lay observer or a properly informed lay person might say that the applicant was thereby intimidated or overborne and therefore from which an inference might otherwise have been available that the Tribunal acted in bad faith.
As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]–[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.
I do not consider therefore that any procedural unfairness or bad faith on the part of the Tribunal has been demonstrated in this regard.
The second part of grounds 1 and 2 states that the Tribunal failed to take into account relevant considerations, particularised as the immense and intimidating pressure and threats from Muslim fundamentalists, given the applicant’s important position as a BJP district committee member and Hindu activist.
I consider that a fair reading of the Tribunal decision demonstrates that it carefully considered these matters, in particular what the applicant said in the statement accompanying his original application for a protection visa compared with what he stated in his oral evidence at the Tribunal hearing (at CB 97–98).
The Tribunal clearly identified to the applicant the apparent inconsistencies between the two versions in the s.424A letter, their relevance to the review, and invited the applicant to comment thereon.
It specifically referred to the applicant’s evidence at the hearing that the Muslims supported the Congress Party and that the BJP was against Muslims, but when the Tribunal asked him if he had ever had any problems with Muslims he said that he had not.
Merely because the Tribunal ultimately rejected the applicant’s claims on the basis that he could not be believed as a witness of truth and did not believe that he feared persecution from Muslims if he were to return to India, is not to say that it did not properly consider the applicant’s claims in this regard. The Tribunal’s assessment of the applicant’s credibility is a finding of fact par excellence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1998) 197 CLR 510 at 560 [137]. I am satisfied therefore that the applicant is, in effect, inviting the Court to undertake impermissible merits review of the Tribunal’s decision, which is not the function of this Court.
I am further satisfied that the Tribunal rejected the applicant’s claims after considering all the evidence. I consider that the Tribunal’s findings concerning internal inconsistencies and lack of credibility in the applicant’s evidence were open to it on all the evidence before it and that it performed the task required of it in this regard in accordance with law.
Accordingly, Grounds 1 and 2 of the application are rejected.
Ground 3 of the application.
The applicant states that the Tribunal failed to investigate his genuine claims. To the extent that this ground asserts that the Tribunal had a positive or proactive duty to investigate the applicant’s claims, the applicant has not provided clear particulars of precisely what inquiries the applicant claims the Tribunal has been deficient in embarking upon in regard to his alleged persecution in India.
Whilst the Tribunal has the power under s.424 of the Act to "get any information that it considers relevant", this provision is permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
An applicant may also request the Tribunal to call one or more persons as a witness to give oral evidence under s.426(2) of the Act. However, whilst the Tribunal must have regard to the applicant’s wishes, it has no statutory obligation to obtain any evidence (orally or otherwise) from that person or persons: s.426(3). As stated by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
… s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness … the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
In any event, in the present case the applicant stated that he did not wish to call anyone as a witness (as indicated by the applicant ticking the "No" box to questions 2c and 2d concerning an applicant calling witnesses or bringing someone to the hearing, on the Response to Hearing Invitation form: (CB 180).
The Tribunal also has the power to require the Secretary of the Department to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination: s427(1)(d). However, as stated by the Full Federal Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) at [24]:
… it is clear that s.427(1)(d) does not impose any legal obligation on the Tribunal.
The Tribunal further has the power to summons a person in Australia to give evidence on oath or affirmation and/or to produce documents: ss.427(3),(4). Again, however, these are discretionary provisions and do not impose any duty on the Tribunal to do so.
Whilst the Tribunal may choose to exercise these investigative and information-gathering powers, it has no obligation to do so. It is well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason. I therefore detect no jurisdictional error on this basis.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Ground 4 of the application
The Tribunal’s decision in this case was not ultimately determined on country information. In any event, the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
Accordingly, Ground 4 of the application is rejected.
Ground 5 of the application
The applicant has not particularised what are the irrelevant questions said to have been emphasised at the Tribunal hearing, and how his sexuality is said to be relevant to his claims.
There is simply nothing disclosed on the face of the Tribunal decision record relating to the applicant’s sexuality in relation to his claims, nor is there any reference to it in the applicant’s statement to the delegate.
Furthermore, when the applicant was given an opportunity to comment on or respond to the first respondent’s submissions on this matter at the hearing before this Court, he declined to do so.
In these circumstances, I fail to see the relevance of the applicant’s sexuality to the applicant’s claims and hence it cannot be said that the Tribunal has “ignored” this material and made a “finding which is erroneous or mistaken”.
Accordingly, Ground 5 of the application is rejected.
Ground 6 of the application
Whilst the applicant has provided particulars of this ground under (a), these particulars fail to say what are the “individual elements” that have allegedly been left out of the consideration of his claims, and which have wrongly been looked at individually, rather than as a whole, in determining whether the applicant’s claims amounted to persecution.
The Court has already dealt with the extent to which the Tribunal has properly considered the applicant’s claims, (in particular under grounds 1 and 2 above). For the same reasons, I do not detect any error of law on this basis.
Furthermore, what weight the Tribunal accords to particular matters before it is ultimately a factual matter for it to determine: (Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors (1985-1986) 162 CLR 24; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361; NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333). As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
I consider that the Tribunal fully considered the applicant’s claims and provided careful reasons as to why it did not believe the applicant as a witness of truth. Indeed, in this regard it stated in its judgment that it found that all of the matters referred to in the s.424A letter cast doubt on the applicant’s “overall credibility”, clearly indicating that it considered the applicant’s claims as a whole, contrary to the applicant’s assertion.
The particulars provided at ground 6(b) state that the Tribunal made an error of law by placing too high an onus on the applicant to obtain independent evidence and failed to give the applicant the benefit of the doubt.
It is well settled that there is no onus of proof generally in administrative matters. However, although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As already discussed under ground 3 above, a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
It is also the case that in assessing the applicant’s credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.
However, the Tribunal is not required to accept uncritically any and all allegations made by the applicant nor is it necessary for it to have rebutting evidence before it can find that a particular factual assertion by the applicant has not been made out: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
In his oral submissions, the applicant submits under this ground that the Tribunal did not focus “on what actually my case is”, rather it “related my case to someone else’s case”.
The Tribunal is entitled to compare the applicant’s version with that of the earlier applicant, which it has done in this case. Under s.424 of the Act it is entitled to "get any information that it considers relevant". The Tribunal is also not bound by the rules of evidence: s.420(2)(a) of the Act.
In these circumstances, the Tribunal was obliged under s.424A, as a matter of procedural fairness, to put to the applicant clear particulars of information concerning the correspondence of the respective statements of the applicant and the earlier applicant, to draw to the applicant’s attention the highlighted identical parts and the adverse consequences that it might draw there from, and to invite his comment or response. This is precisely what the Tribunal has done in the present case.
The applicant provided no response to the s.424A letter.
Having complied with its statutory obligations under s.424A, it was a matter for the Tribunal what conclusions it drew from the material before it as long as they were reasonably open to it on that material. I consider that in this case it was reasonably open to the Tribunal on all the relevant evidence and material before it, to draw the conclusion that given the correspondence between the two cases, the applicant’s statement was copied from the other applicant and what the applicant said in his statement was untrue.
I am therefore satisfied that there is no basis for the applicant’s contention that the Tribunal placed any onus of proof on him in this case. I am further satisfied that it properly accorded the applicant the benefit of the doubt, until it reached satisfaction of the applicant’s lack of general credibility on the evidence before it.
Applicant’s written submissions
Paragraphs 1 and 2 of the applicant’s written submissions repeat ground 6 and ground 1 respectively of the application.
Paragraphs 3 repeats ground 2, but with the following different particulars:
Particular Grounds
a) The Tribunal did not consider the applicant who had been arrested and beaten on the back with wooden stick because of his membership of RYL.
b) In relation to above the Tribunal did not consider the applicant’s claimed to fear serious harm as a result of his political involvement.
I rely on my reasoning under grounds 1 and 2 above on these matters. Also, merely because the Tribunal’s summary of its interchange of questions and answers with the applicant (at CB 88–90) does not specifically state that the applicant was beaten with a wooden stick, rather it refers to the matter in a more general manner, namely that the applicant was “arrested by the police and taken to a police station where he had been held for 20 days and tortured…” (CB 89), does not detract from the fact that the Tribunal considered this matter. Indeed the s.424A letter, with the declaration attached of the corresponding applicant’s case, highlighted the following portion of that declaration as being identical to the applicant’s:
I … continued working for the RYL for some years … Me and my colleagues were arrested by the police and taken to a police station when I was held for 20 days … they tied my hands together and hung me upside down and beat me on this back with a wooden sick”
I therefore detect no jurisdictional error on these “Particular Grounds”.
Paragraph 4 of the applicant’s written submissions states that:
The Refugee Review Tribunal failed to note 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 applicant 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 protect visa.
The first element – applicant must be outside his country
The second element – the applicant must fear persecution. If the applicant returns to his country his life would be in danger.
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicant fulfil this.
The fourth element – the fear of persecution for a Convention must be a “well founded” fear. The applicant fulfil all the four elements.
The Tribunal, which has described these in its decision, have failed to take note of this.
The Tribunal sets out the four key elements of the definition of ‘Refugee’ under the Relevant Law. Its decision demonstrates that it was not satisfied on each of elements 2, 3 and 4. Indeed, once it concluded that the applicant’s overall credibility could not be accepted and that the applicant did not have a genuine subjective fear of persecution under element 2, elements 3 and 4 could no longer be satisfied. The Tribunal’s finding on this second element was ultimately a matter for it in its fact finding role. As has been stated earlier in this judgment, it is not the proper function of this Court to engage in impermissible merits review.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 29 February 2008
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