SZLSF v Minister for Immigration

[2008] FMCA 891

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLSF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 891

MIGRATION – Review of RRT decision – where Tribunal put to applicant matters pursuant to s.424AA Migration Act 1958 (Cth) – where applicant responded also in writing to matters raised – whether compliance with s.424A – whether Tribunal should have given advance notice of findings – whether compliance with s.425.

Migration Act 1958 (Cth), ss.424AA, 424A, 425

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZIUD v Minister for Immigration and Citizenship [2006] FCA 1555

Applicant: SZLSF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3709 of 2007

Judgment of: Raphael FM

Hearing date: 12 June 2008

Date of Last Submission: 12 June 2008

Delivered at: Sydney

Delivered on: 12 June 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr J.A.C Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3709 of 2007

SZLSF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 11 May 2007. On 14 May 2007 he applied to the Department of Immigration and Citizenship for a protection (class XA) visa. On 4 June 2007 a delegate of the Minister refused to grant a protection visa. On 19 July 2007 the applicant applied for a review of the delegate's decision.

2. The applicant attended a hearing before the Tribunal. During the course of the hearing the Tribunal referred to certain matters that might be the reason, or part of the reason, for affirming the decision under review. It provided the applicant with an opportunity to respond to those concerns. The applicant did so by way of letter dated 12 October 2007 [CB76]-[78]. On 16 October 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 6 November 2007.

3. The grounds upon which the applicant made his application for a protection visa and submitted that he was a person to whom Australia owed protection obligations was that “a few months back” (from 14 May 2007) he was coming from his workplace when he saw a friend being murdered. Although he did not report the incident to the police he feared that the murderer, who he identified, would look for him and kill him. Although in his original statement he said that he had been a witness for the police, he explained to the Tribunal at the oral hearing that this did not mean that he had given information to the police, but that he considered himself to be the only witness.

4. At the Tribunal hearing the applicant stated that in April 2006 he had been walking with an acquaintance in the Travandrum city area during a general strike. The streets were empty. He said that the assailant attacked his friend and then ran off. About half an hour later a highway police patrol came by and then an ambulance came. The acquaintance died in hospital later that day. The applicant claimed he had a mobile phone in his possession at the time of the attack and suggested to the Tribunal that he thought that the assailant had seen him holding the mobile phone and believed that he had taken photographs. The applicant told the Tribunal that in late May 2006, although he had not given any information to the police, the assailant was taken into custody, only to be released in November. The applicant believed his life was in danger from the assailant. He remained in his family home until December 2006 when he went to stay with a distant relation in Bangalore. He returned in February 2007. He obtained a visa to visit Australia and then proceeded into this country.

5. The Tribunal questioned the applicant on a number of matters relating to his story and put to him, pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Act”) three particular matters. The first was that there was no Convention reason for the harm that he claimed to fear [CB91].

   "In response he said that [the assailant] was a political activist some time back.  He did not dispute that this appeared to be irrelevant to the reasons he now gave for fearing harm from this person."

6. The second matter raised by the Tribunal was that the claimant's actions did not appear to be consistent with those of a person fearing serious harm, in particular, his failure to lodge any complaint with the police about the threats and the attack on him, his willingness to return to his family home, despite threats being received there [CB91]:

   “The Tribunal could infer from these actions that he had not been truthful when he claimed he had been threatened.”

   The applicant responded that he was trying to protect himself and that he had not been planning to leave India.

7. The final matter raised by the Tribunal was that it had been given conflicting oral evidence as to whether the assailant’s thugs had ever contacted the applicant in Bangalore, as a result of which the Tribunal could infer that the claim was untrue and that he had not been threatened in Bangalore at all, and even if his other claims were true, the only threat to him was in the Trevandrum area.  The Tribunal suggested that he could relocate.   The applicant responded to that by saying that the assailant had contacts everywhere and until he was caught it would be difficult for the applicant to return.

8. The applicant asked for, and was granted, time to respond in writing to the three matters raised by the Tribunal, even though he had dealt with them at the hearing.  He sent the letter previously referred to.  This letter suggested for the first time that a dispute between the assailant and the applicant's friend had something to do with communal violence between Christians and Muslims.  The applicant is a Christian.  The assailant is a Muslim.  Later in the letter the applicant refers to his church and that his hiding places had been found by "Goondas" associated with the assailant.  He then states [CB77]:

   “The Communist government police officers working along with the goondas have been notified by K that R and I had been involved in criminal activities.  The police officers had told my parents that they would not protect me as they were told that R and I had been moving with politicians and underground criminals.  They said I must be killed very soon.”

9. In its findings and reasons the Tribunal first pointed out that [CB93]:

   " … Nothing in his oral evidence pointed to that criminal’s being motivated to harm him by, or even having the slightest interest in, the applicant's race, religion, nationality, membership of a particular social group or political opinion.”   

10. Having dealt with the applicant's lack of Convention nexus in his claims made orally and prior to the hearing, the Tribunal then turned to the letter of 12 October 2007 noting:

    "As to the claims made by him in his letter to the Tribunal of 12 October 2007, that he was drawn into a communal riot at some point, that the police detained and tortured him, and that they had since alleged that [the applicant] (a Christian) was wanted for molesting Muslim girls and for involvement in criminal activities with R, I am satisfied that if these serious claims were true he would have mentioned them during the Tribunal hearing, when he was given every opportunity to do so.  However, at no point did he refer to them, even obliquely.  For that reason I consider those claims to be a recent invention and do not consider them plausible.  I also note that in his oral evidence he said that he did not know R's surname and clarified that R was an acquaintance rather than a friend.  This is not generally consistent with the account given by him, in his most recent letter, of his regular and close contact with R.  I further note that he told the Tribunal that R died in hospital, but stated in the letter that R died at the scene of the attack on him.  Taken together, all of these inconsistencies and the other matter to which I have referred above cast such serious doubts on the general plausibility of his account that I do not accept that he was drawn into a communal riot, or has had any problems with the police in India of the sort described or that he has any fear of being harmed by them in the future.” 

    The Tribunal concluded by finding that it was not satisfied that the applicant had been truthful with regard to the events that led to his decision to leave India, and was not satisfied that he considered himself to be at risk of serious harm from any source at the time he departed. 

11. The applicant filed an amended application with this court on 14 February 2008. In that application he asserted that the Tribunal had not complied with s.424A of the Act and thus denied him natural justice because the Tribunal had:

    "… failed to provide to me for my written comments the adverse information, which is stated in the finding and reasons part of the Tribunal decision.  This is a jurisdictional error. 

    The Tribunal should have sent me a letter and in the letter the Tribunal is particularising the adverse information adverse to me and explaining to me why and how the information is being adverse to me ...”

12. This application before the Tribunal was one to which s.424AA applied. That section has the effect of adding an additional exception to those matters in respect of which the Tribunal was required to provide a letter to an applicant under s.424A, but even the new section still requires there to be some information before it is engaged. The matters raised by the Tribunal to which the applicant responded would not, to my mind, meet the test of information as that has now been defined by the High Court in SZBYR v Minister for Immigration (2007) 235 ALR 609 at 616. As Mr Potts so helpfully puts it:

    “It is now plain that in the High Court's view the notion of 'information' is not related to the existence of doubts, inconsistencies or the absence of evidence and therefore relevant information is not to be found in inconsistencies or disbelief as opposed to evidentiary material or documentation itself.”

13. In a way, the applicant obtained a bonus by being given the opportunity to respond to the Tribunal under s.424AA. Unfortunately, having done so, he made his position less tenable by creating an almost entirely new context in which the incidents which he said had occurred to him did occur. The Tribunal was entitled to take into account these inconsistencies and was not, to my mind, required to take any further step before concluding that the applicant's story could not be believed. I do not think that the manner in which the Tribunal dealt with the information provided by the applicant in response to the s.424AA request was itself information, and if what the applicant had written was true there was no need to take it any further because it fell within the exception under s.424A(3)(b).

14. Before me today the applicant said that he thought that the Tribunal had fallen into jurisdictional error because it had not told him that it proposed to make an unsatisfactory decision and given him some opportunity to make further submissions.  It is now well-established that there is no obligation on the Tribunal to give advance notice of its proposed adverse findings: SZIUD v Ministerfor Immigration [2006] FCA 1555 per Spender J at [15].

15. The applicant then told me that the hearing was very short and it was clear to him that the Tribunal wished to get it over as quickly as possible. This is a complaint about the quality of the hearing, which could possibly be raised under s.425 of the Act, but any such claim must be accompanied by cogent evidence and it will be very difficult indeed to make it out of a consideration of the Tribunal's reasons alone. No such evidence, in the form of either a transcript or a tape, was provided to me. Mr Potts, on behalf of the Minister, tendered (Exhibit 1) an RRT hearing record which indicated that the hearing itself lasted approximately two hours, and this would not seem to me to be an inadequate time.

16. The only possible area in which it might be said that the Tribunal made an error was in relation to the claims put in the letter of 12 October 2007 that the police would not provide assistance to him because he had been moving with politicians and underground criminals.  This provides a Convention nexus for the failure of state protection and that matter was not considered at all by the Tribunal.  In this particular case I think that the Tribunal was justified in not considering it because it had already decided that the story given by the applicant in the letter of 12 October 2007 was untrue and therefore the police had not acted in the way suggested.  There is no failure of state protection if it is found that there was no need for protection at all. 

17. In these circumstances I am unable to provide the applicant with the review he seeks.  I dismiss the application.  The applicant is to pay the respondent's costs in the sum of $4200.00. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1 July 2008