SZLRF v Minister for Immigration - [2008] FMCA 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 988

MIGRATION – RRT decision – Indian fearing persecution based on religious and other reasons – Tribunal found the applicant lacked credibility and his claims did not amount to persecution for a Convention reason – no jurisdictional error found – application dismissed.

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

First Applicant:

SZLRF

Second Applicant:

SZLRG

Third Applicant:

SZLRH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3614 of 2007

Judgment of:

Smith FM

Hearing date:

4 July 2008

Delivered at:

Sydney

Delivered on:

4 July 2008

REPRESENTATION

Counsel for the applicant:

In Person

Counsel for the First Respondent:

Mr M Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3614 of 2007

SZLRF

First Applicant

SZLRG

Second Applicant

SZLRH

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants arrived in Australia in July 2007, and on 25 July they applied for protection visas against return to India. They are a husband, his wife and daughter. Although some of the events which were put forward involved other members of the family, only the father made claims to be a refugee, and I shall refer to him as the applicant.
In a statement attached to the visa application, the applicant referred to difficulties which commenced in January 2006 after he had driven a friend, Mr M, in his car. They took Mr K, who owed Mr M debts, to a location in order to pressure him to pay his debts. The applicant says that, unknown to him, Mr M locked Mr K in a room at a temple for a day or two, and only released him after Mr M and the applicant had been arrested by the police on the complaint of Ms K. The applicant said that he and Mr M were charged with extortion and kidnapping by a police inspector. He claimed that Ms K had political connections in the Congress Party, and also could bring “religious pressure” on the inspector because Mr K was a Muslim and the applicant and Mr M were Sikhs.
The applicant said that they were released on bail after eight days, but further complaints were made by Ms K, and the applicant was obliged to pay a large bribe to the inspector to avoid further trouble. However, “again after two months Ms K put a forgery case on me and Mr M”, and the inspector started pressuring him for more money. He said that he was having difficulties raising money, and was advised to “leave my place and shut down my business from that place and move to some other place or to leave this country”. He said: “That's the reason I don't want to go back to my country. That inspector will spoil my whole life and my family will suffer for that”.
A delegate refused the application on 17 August 2007. The delegate said that the lack of specific detail and substantiating evidence led him to doubt the veracity of the claim. The delegate also noted that the applicant's passport showed that he had travelled abroad on a number of occasions, that he had voluntarily returned to India, and that he had resided at the same address since 1974 and not gone into hiding. The delegate also thought that the alleged harm was not essentially and significantly due to a Convention reason.
The applicant appealed to the Tribunal, without the assistance of an agent. In response to a written invitation to comment on the implications of his travel, the applicant submitted a further typed statement containing “Additional Information”. This elaborated his claimed history, and included further significant events. The statement sought to give a greater religious complexion on the harms which he had suffered and feared, by suggesting:
The Muslim community which lived near Mr K's area came together and took a community meeting and decided to teach a lesson to us by putting us in gaol for three to five years or to kidnap our children or trouble our wives on road.
The statement also claimed that the applicant had been subject to additional harassment before he left India, and attempted to explain the travel shown in his passport. This showed him travelling on several trips to Malaysia, Thailand, Singapore and Indonesia, with the most recent trip being made in April 2007.
The applicant also attended a hearing held by the Tribunal on 9 October 2007. He was subsequently sent tapes of the hearing, but has not tendered a transcript. The Tribunal gave a very detailed account of the hearing in its statement of reasons, and I have no reason to doubt its narration.
According to the Tribunal, the applicant again recounted his claimed history of troubles being initiated by Ms K. He also claimed that matters had become worse in late 2006, when there was an attempt to “have his wife killed on the way to the office while travelling on a scooter”, and that it was a second charge of alleged forgery made in October 2006 which caused him to decide to leave the country. The applicant confirmed that he had continued to run his business and live at the same premises throughout these events.
The Tribunal said that it put a number of matters arising from the applicant’s evidence to the applicant for his comment on whether they might provide reasons for deciding that he was not a credible witness and for rejecting his claims. It said that it did so pursuant to procedures provided under s.424AA of the Migration Act. It is unclear to me whether it was obliged to follow this procedure, but I can detect no defect in its attempt to follow that procedure, based on its detailed description of how it put matters to the applicant. I can detect no matter which it subsequently relied upon in its findings and reasons, which was not reasonably foreshadowed to the applicant at the hearing.
The Tribunal handed down its decision on 30 October 2007, and affirmed the delegate’s decision. In its statement of reasons under the heading “Findings and Reasons”, the Tribunal said that it found the applicant not to be a credible witness. It noted that his application to the Tribunal and his oral evidence to the Tribunal containing considerably more claims than his initial application to the Department, and it said and that he had not explained many of its concerns to its satisfaction. The Tribunal gave significant weight to the fact that the applicant had remained in his home throughout 2006, despite these various claimed events occurring. The Tribunal said:
The fact that the applicant chose to remain at his home where he could be easily located and harmed causes the Tribunal to reject the applicant's claims that he was threatened or harassed or otherwise persecuted or that he was fearful of such persecution.
The Tribunal thought that this conduct also showed that there was no real chance that he would face persecution if he were to return to India. The Tribunal rejected the applicant's claims that he and his family had been targeted by Ms K or by Muslims or by the Congress Party, the police or others, and that these people had threatened and tried to harm him and his family. The Tribunal rejected the claim that false cases had been brought against the applicant and that, as he had recently claimed, he had received threatening telephone calls in Australia.
The Tribunal referred to the applicant's claims that he had financial difficulties, and that creditors were demanding money, forcing him to sell his businesses. The Tribunal said that it did not regard these matters as showing significant economic hardship threatening his capacity to subsist, since he had found other work. It found that any financial hardship suffered by the applicant would not amount to serious harm within the meaning of s.91R(1). The Tribunal found that there was no real chance that the applicant would face persecution for any Convention reason if he returned to India.
The applicant now asks the Court to set aside the Tribunal's decision, and to remit the matter for further consideration. I can only make these orders if the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed nor whether he or his family qualify for protection visas or any other permission to stay in Australia.
A number of grounds have been presented by the applicant in an application, an amended application and two written submissions.
In his application, paragraphs 1, 2 and 3 make unexplained contentions that the Tribunal made jurisdictional errors at three points in its reasoning. However, I am unable to detect an argument which would show that these particular parts of the Tribunal's reasonings reveal error. In my opinion the findings or conclusions which are identified were all open to the Tribunal on the evidence before it.
The fourth ground in the application alleges an unparticularised breach of s.424A, due to the failure of the Tribunal to give written notice to the applicant regarding adverse information which it relied upon.

This contention is repeated in similar complaints made in the applicant’s other documents filed in the Court.
However, I can detect no information which was required to be put to the applicant under s.424A(1), and was not. There are a number of reasons why the Tribunal did not come under any obligations under that section. First, the matters complained about by the applicant in the Tribunal's reasoning were matters of assessments of evidence and information, and s.424A(1) does not apply to such thought processes, in particular concerning inconsistencies in the manner in which claims have been put forward. Secondly, the Tribunal's reasoning assesses the applicant's evidence given at the hearing, and any obligations under s.424A(1) in that respect are excluded by s.424A(3)(b). Thirdly, as I have indicated, the Tribunal purported to put all of its concerns to the applicant orally at the hearing, pursuant to procedures under s.424AA, and in such circumstances any obligation under s.424A(1) is excluded by s.424A(2A).
I therefore consider that all of the applicant's contentions concerning s.424A have no basis.
The applicant's amended application contains four grounds. The first makes an unexplained contention of jurisdictional error affecting the Tribunal's conclusion that the applicant was not a credible witness. However, the argument appears merely to seek to persuade the Court to form a different view of the applicant's credibility.
The second ground makes an unclear point concerning a statement made by the Tribunal towards the end of its reasoning, where it said:
As the Tribunal has found the applicant not to be a credible witness, the Tribunal has not requested the applicant to provide the Court documents which he claims he has in India.
This appears to be a reference to something which was said at the hearing, and was earlier described by the Tribunal at the end of the following paragraph:
The Tribunal asked the applicant why he thought he was unable to live in another part of India. He said that Muslims are everywhere, Ms K would still find him wherever he goes and if he relocates to Delhi, for example, they would manage to find about his whereabouts. He said that they know that he is in Australia and one of Ms K’s cousins called him on his mobile to tell him that they know about the fact that he was in Australia and he made a threat on telephone saying that one day if he returns to India, they would take revenge. The applicant said that if he returned to India, they may kidnap him or kill him. The Tribunal noted that they had plenty of opportunities to do that before he left India. He said that their idea or plan was to do it legally but because the system could not protect him, then they were looking for another options. The Tribunal asked the applicant how he thought they could find him in a large city, like Delhi, where they were millions of people. The applicant said that they could initiate inquiries through friends, as he has a large friends and relatives circle and they will know about his return, or they could ask police to interrogate them as their case is still pending in the court so that the police has a right to contact them. He could be caught anywhere. The Tribunal asked the applicant if he had the FIR or other court documents. The applicant said that he did not have the documents with him but he could get them from India. The Tribunal asked the applicant why he had not done that before. The applicant said that his lawyer had a heart transplant operation two months ago, he did not bring them to Australia because he had no idea that these documents were required as proof.
It is to be noted that the applicant is not recorded as making any request that the Tribunal should allow him further opportunity to present documents, and I can find no evidence that he made such a request at any other point in the proceedings. Nor is there any evidence that the Tribunal represented to the applicant that he would be allowed further time to present documents, or would be asked to present them.
The later statement by the Tribunal explaining why it did not request the applicant to provide further documents, should be understood in a context where it had previously found inherent reasons for disbelieving the applicant's claims to fear harm, particularly relating to his continuing residence and business during 2006. As I understand the Tribunal, it was indicating that its conclusions in relation to these defects in his credibility meant that it could not see a prospect that his providing Court documents was likely to alter its opinion about his credibility in relation to his fears of persecution. In any event, in my opinion, the Tribunal was under no obligation to request the applicant to provide further documents, nor to give him further opportunities to provide them.
The applicant argued today that he should have been allowed more opportunities to present documents to the Tribunal, and he also sought to present more documents to the Court and to have more time to do so. However, the presentation to the Court of corroborative documents which were not presented to the Tribunal could not assist his present case before this Court.
In relation to his opportunities to present them to the Tribunal before it made its decision, in my opinion, he was given ample and reasonable opportunity. In the course of the proceedings before the Tribunal his attention was, or should have been, clearly drawn to the need to present documents as soon as possible He is a person who reads and writes English, and had presented his own application to the Tribunal. The delegate’s reasons had referred to the absence of evidence. He should have been well aware that this could assist his claims.
In the review application form the applicant filed on 29 August 2007, he was clearly advised to provide “any information, documents or submissions that you want the Tribunal to consider in support of your application, or send them to us as soon as possible”, and the form advised that documents not in English should be translated. Similar warnings and advice were again given to the applicant in a letter dated 30 August 2007, acknowledging the application, and also in a letter from the Tribunal dated 10 September 2007, inviting him to the hearing. The enclosed pamphlet explaining the hearing also contained very clear advice that:
You should provide the Tribunal with any evidence you now have which will support your claim to be a refugee as soon as possible and in any case at least a week before the hearing date.
In those circumstances, in my opinion, there is no substance to the applicant's complaint that he was denied a reasonable opportunity to present documentary corroboration of his history.
The third ground of the amended application makes an obscure contention that the Tribunal “applied wrong legal requirements” when finding that the applicant's financial hardship did not amount to serious harm within s.91R(1). However, in my opinion no relevant jurisdictional error is revealed in that part of the Tribunal's reasons.
The fourth ground contends that the Tribunal should have invited the applicant to make written comments under s.424A on “the difference between his application to the Tribunal and his oral evidence and his initial application” and the other circumstances which the Tribunal thought reflected on his credibility. However, as I have indicated, I can find no basis in these arguments for finding breach of s.424A.
The applicant's recent written submission makes some additional arguments. It contends that “the applicant did not get enough time to explain these information to the Tribunal”, being his travel in other countries. However, this is not a conclusion which I would draw from reading the Tribunal's description of the hearing. It is clear that he was invited to explain his travel, and to comment upon the Tribunal's concerns that it might show him returning to live in India without fear of persecution. Similarly, I do not accept that “the Tribunal did not explain to the applicant with sufficient space of time why the applicant was not truthful to the evidence”, and that it did not warn the applicant of its possible reasoning.
I do not accept the argument that the Tribunal made any findings “without any reasonable basis” on the evidence before it. In my opinion, the Tribunal's conclusions concerning the credibility of the applicant's claimed fear of persecution were open to it on the evidence.
For the above reasons I have not been able to identify any jurisdictional error affecting this decision, and I must dismiss the application.

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

Associate: Michael Abood

Date: 21 July 2008