SZLSX v Minister for Immigration

[2008] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLSX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 707

MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding – absence of a Convention nexus – time made available to comment pursuant to s.424AA reasonable in the circumstances – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424AA, 422B, 425

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZLSX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3784 of 2007

Judgment of: Nicholls FM

Hearing date: 29 May 2008

Date of Last Submission: 29 May 2008

Delivered at: Sydney

Delivered on: 29 May 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 10 December 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3784 of 2007

SZLSX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Esx tempore; Revised from Transcript)

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 10 December 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 November 2007, and handed down on 4 December 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The Minister has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following background may be discerned.

2. The applicant is a National of India who arrived in Australia on 29 March 2007 and applied for a protection visa on 11 May 2007. The application is reproduced at CB 12 to CB 26. The applicant was assisted by a registered migration agent in the making of his application, identified as Mr Raymond Solaiman (see CB 10). The applicant’s reasons for claiming protection in Australia were stated as (at CB 19.5):

   “Applicant claimed persecution in the hands of extortionists and the state authority refused to protect them for his political opinion.  We will make detailed submission sometime later and we request that he be invited for interview.”

3. In response to questions in the relevant application form, questions which sought to elicit from the applicant what he thought would happen to him if he were to return to India, who he thought may harm him and did he think that the Indian authorities would protect him, the only comment appearing was: “will provide later” (see CB 20 to CB 22).

4. This application was refused by a delegate of the respondent Minister, and this documentation appears at CB 27 to CB 37. What appears from this material is that the delegate’s decision turned on a finding that while the applicant’s claim was that the Indian authorities did not provide protection because he protested against corruption, that independent country information before the delegate did not lead the delegate to find that the applicant would be prevented from availing himself of his legal rights and state protection. In all, it was this independent country information that did not enable a finding that the applicant would face a real chance of Convention-based persecution if he were to return to India (see CB 36.4).

5. The applicant applied for review by the Tribunal on 23 July 2007. That application is reproduced at CB 38 to CB 41. I note that it appears that nothing further was provided to the Tribunal other than the applicant’s passport, copies of which appear in the Court Book (at CB 48 to CB 54).

6. The applicant was invited to attend a hearing before the Tribunal and did so on two occasions: one on 19 September 2007 and what was described as a “resumed hearing” on 29 October 2007. The Tribunal’s account of what occurred at these hearings is contained in its decision record (CB 67.4 to CB 70.5, and CB 70.5 to CB 71.4).

7. The Tribunal’s action in providing the applicant with a further opportunity to attend a hearing before it can best be understood in the context of noting that the application to the Tribunal was made on such date that the amendments to the Act made by way of the Migration Amendment (Review Provisions) Act 2007 which became operational on 29 June 2007 applied to the application before the Tribunal.

8. The Tribunal’s account of what occurred at the hearing on 19 September 2007 in my view reveals that the Tribunal was mindful at least of its obligations pursuant to s.424AA of the Act. It advised the applicant (without making specific reference to that section) as to its obligations towards the applicant, and the procedure that may be adopted in accordance with those obligations. In particular, I note (at CB 67.5):

   “In addition to explaining the relevant law as set out above, the Tribunal advised that in the hearing it may discuss information that could be a reason affirming the decision under review and that it would explain the information carefully so that the applicant could understand it and could understand what it is relevant to the Tribunal’s decision.  The Tribunal advised that it would ask the applicant to comment on the information and to let the Tribunal know if he did not understand the information or if he did not understand why it is relevant.  The Tribunal advised that if the applicant wanted more time to respond or to comment on the information the Tribunal would consider whether to adjourn the review to give him more time.”

9. On the Tribunal’s account of what then occurred at the hearing, in answer to the question as to why he feared returning to India, the applicant explained that his business in his home village was affected by a competitor, who following business competition from and with the applicant, attempted to burn down the applicant’s business. Further, that the applicant claimed then to have moved away but that this competitor “sent people including relatives and police to harass him and his workers” (CB 67.8). The applicant told the Tribunal that he believed that his difficulties were because it was related to his religion because he is a Muslim, and the competitor and others were Hindu.

10. The Tribunal indicated that the circumstances put forward by the applicant did not appear to amount to having a well-founded fear of persecution for a Convention reason (CB 67.8). The Tribunal indicated to the applicant at the hearing that his description would appear to amount to criminal activity and corruption. It was in response to that view expressed by the Tribunal that the applicant made reference to religion and that his problems arose out of Muslim/Hindu discord (CB 68.2).

11. The Tribunal noted independent information that indicated India’s Constitution allowed for religious freedom, and that while there was information that indicated that there were problems with corruption “within the police force in India”, that there was no indication that the problems put forward by the applicant were related to his religion. The applicant nonetheless insisted “that his religion is the cause of all his problems” (CB 68.4).

12. Importantly, given its ultimate finding, the Tribunal raised with the applicant the issue as to why the details of the claims that he was making before the Tribunal at the hearing had not been mentioned in his protection visa application, and indeed, that the claims made at the hearing had not been raised in that application. The Tribunal records (CB 68.6 to CB 68.l0):

    “When asked why he did not mention any of the details in his protection visa application … the Tribunal noted that the applicants had not mentioned anything about extortion in the hearing ….  The Tribunal noted that the applicant had not mentioned anything about in the hearing ….  The Tribunal noted that he had not mentioned extortion or that the state authority refused to protect him because of his political opinion ….”

13. Further, the Tribunal (at CB 69.1) reported:

    “When asked why he failed to mention these details in his protection visa application, the applicant said that he did not know he could just write it without the proof and he was gathering the file with the proof.”

14. As quoted at paragraph [12] of the first respondent’s written submissions (which I am satisfied have been translated for the applicant), the Tribunal records (at CB 69.4):

    “The Tribunal indicated to the applicant that his failure to mention the detail he was providing at hearing may lead the Tribunal to doubt his evidence and to doubt his claims.  The Tribunal noted that the applicant had submitted one sentence only in his protection visa application for the reasons he left India and provided no further details.  The Tribunal noted the claims the applicant was now making, which are that after he undercut a competitor, this person tried to burn down his business, and as a result he moved out of his village and set up business in Mumbai but the person, who is a mafia type of person, continued to harass him, sending friends, family and acquaintances to his business in Mumbai.  This person also sent the police who asked for bribes and this person also wanted the applicant to sell him his business for less than it is worth.  The Tribunal noted that the applicant has said that he had operated his business in Mumbai for 6 years before closing it down and stated that this had all occurred because he is a Muslim.  The Tribunal told the applicant that it was concerned that he had not provided any of these details in his original application, which may lead the Tribunal to doubt his claims and to conclude that he had not given a truthful account of his experiences in India, which may lead the Tribunal to doubt that he has a well-founded fear of persecution if he were to return to India.  This would mean the applicant would not be entitled to the protection visa.  The Tribunal also noted that if it were to accept the applicant’s evidence at hearing, it would appear that what had happened to him was related to a business dispute and to subsequent possible criminal activity and police corruption, which would not amount to a well-founded fear of persecution for a convention reason.  If so, it may lead the Tribunal to find that he is not a refugee because he does not have a well-founded fear of persecution for a convention reason.  This would mean the applicant would not be entitled to the protection visa.  The Tribunal asked whether the applicant understood the information and why is relevant and whether he wished to comment on it.”

15. The applicant indicated that he “would like an additional three months to wait for further documents”. The Tribunal’s response was that it did not consider this a reasonable period in all the circumstances, but told the applicant that it would reconvene the hearing “in approximately a month”, and that the applicant should provide any further comments or responses and any further documents that he wished the Tribunal to take into account. As it turned out, the hearing resumed on 29 October 2007, some five-and-a-half weeks later.

16. On the Tribunal’s unchallenged account of what occurred at the hearing, the Tribunal repeated its concerns with the applicant’s claims, and in particular, its concerns that he had not provided any of these details in his original application, and again repeated its view that this could lead it to doubt his claims and conclude he had not given a truthful account of his experiences in India. It noted further that in the event that it were to accept his claims as expressed at the hearing that it would appear that what had happened to him in India was related to a business dispute and to subsequent possible criminal activity and police corruption, but that this would not amount to a well-founded fear of persecution for a Convention reason. Importantly, the Tribunal records (at CB 71.1):

    “The applicant confirmed that he understood the information and weight is relevant.”

17. The applicant requested more time, and indicated that he had been unable to bring “a file to the Tribunal hearing”, because his mother and father had gone on a pilgrim (sic: pilgrimage) and when they return they will send the file to him” (CB 71.2). The Tribunal indicated that it was not minded to agree to any further time on the basis that the applicant had had sufficient time since the making of his protection visa application which the Tribunal noted had been made on 11 May 2007 to submit any documents that he wished to submit, and that, in any event: “pointed out that it had been almost 6 weeks since the first hearing which the Tribunal considered a sufficient time in the circumstances” (CB 71.4).

18. The Tribunal’s decision to affirm the delegate’s decision turned on one issue. That is, as it had already discussed with the applicant, his claims advanced at the hearing differed significantly to what he had put in his protection visa application. The Tribunal did not accept the explanation put forward by the applicant to account for these differences, differences which the Tribunal found were “significant differences”. The Tribunal reasoned that “if the applicant was giving a truthful account of what happened to him in India, the claims on his protection visa application and at hearing would not be so significantly different” (CB 72.9). The Tribunal did not accept that the applicant had given a truthful account of his past experiences, his fear of harm or the reasons for it should he return (CB 73.2), and therefore it did not accept what I would describe as the substratum of claims (the integers of claims) put forward by the applicant.

19. That was the basis for the Tribunal’s affirmation of the delegate’s decision. I note also that the Tribunal noted that even if the claims made by the applicant at the hearing were true, in its view they would not amount to persecution for a Convention reason as they would amount to criminal activity and corruption and not persecution on the basis of religion. The Tribunal said that it found it unnecessary to make such a finding given that it had not accepted the claims as put by the applicant to be true (CB 73.4).

Application to the Court

1. The application before the Court asserts the following:

   “The grounds of the Application are:

   1.  Jurisdictional error

   2.  Procedural error.”

2. Other than an affidavit filed on the same day as the application which essentially put the Tribunal decision before the Court, the applicant has put nothing further before the Court in support of his application. He says in his affidavit: “I stated my grounds of review and details of grounds will be submitted when requested.”

3. When the applicant first appeared before the Court at the first Court date in this matter on 19 March 2008, I note that he appeared in person and was assisted by an interpreter in the Hindi language. A number of orders were made by consent which amongst other things specifically gave the applicant the opportunity to file and serve an amended application giving particulars of his grounds that he wished to put before the Court and additional evidence and submissions that he wanted to make in support. Nothing further has been received from the applicant.

4. I also note from relevant correspondence on the file (and this has been confirmed by the applicant before the Court today) that the applicant did take up the opportunity of consulting a lawyer on the panel of the Court’s legal advice scheme, and that he consulted a barrister on that panel on 3 April 2008 and that advice was given to him.

5. At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Hindi language. Ms Mitchelmore of Counsel appeared for the first respondent. I note that in addition to the Court Book, the first respondent has filed a formal response and written submissions prepared by Ms Mitchelmore.

Consideration

1. In looking at what I can only describe as the bare assertions contained by way of the applicant’s grounds, in relation to which the applicant was unable to assist the Court further today, I cannot see that the procedures adopted by the Tribunal reveal any relevant error on its part.

2. Section 422B of the Act applies to this application, which provides that the matters set out in Division 4 of Part 7 of the Act constitute the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

3. In this regard, the applicant was invited to a hearing before the Tribunal pursuant to s.425, and bearing in mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) at [35] and [44] in regard to procedural fairness (expanding and drawing on the applicant’s bare claim of procedural error on the part of the Tribunal), with reference to the only report of what occurred at the two hearings before the Tribunal that is before the Court (the Tribunal’s own account), the Tribunal squarely put to the applicant on both occasions the two issues which at that time it said could possibly be determinative of his case, one of which ultimately proved to be so.

4. From what is already set out above, the Tribunal squarely told the applicant that his failure to mention in his protection visa application the detailed claims that he had subsequently made at the hearing, could lead it to conclude that he had not given a truthful account of his experiences in India, which in turn may lead it to conclude that he did not have a well-founded fear of persecution if he were to return. The applicant was plainly on notice as to the importance of this issue and its relevance in that it may lead to the Tribunal concluding that he did not have a well-founded fear of persecution, and that even if the Tribunal were to accept the applicant’s claim as true, no Convention nexus was revealed. These issues were again repeated by the Tribunal at the subsequent resumption of the hearing some five-and-a-half weeks later.

5. I cannot see that the applicant was denied procedural fairness in the sense as that concept is explained in relation to s.425 of the Act by the High Court in SZBEL.

6. In terms of s.424AA of the Act, the Tribunal’s account of what occurred at the hearings (again noting that the Tribunal’s account remains unchallenged before the Court by any evidence brought by the applicant to the contrary) reveals that the Tribunal orally gave the applicant clear particulars of the information that it considered would be the reason, or part of the reason, for affirming the decision under review, that it ensured that the applicant understood why the information was relevant, and the Tribunal reports that the applicant confirmed that he did, that it gave the applicant the opportunity orally to comment on, or respond to, this information and that it further advised the applicant that he could seek additional time to comment on such information, and given the applicant’s indication that he wished further time, the Tribunal adjourned the review for that purpose.

1. Nor can I see that the Tribunal’s declining to give the applicant an adjournment of three months and giving three weeks instead reveals any error on its part. The relevant requirement set out in s.424AA(b)(iv) is that in circumstances where an applicant seeks additional time to comment on, or respond to, information, the Tribunal must adjourn the review if it considers that the applicant reasonably needs additional time to comment on, or respond to, whatever has been put to him or her.

2. In all the circumstances, it was open to the Tribunal to take the view that the time available to the applicant was reasonable. The legislative requirement is the provision of the opportunity in particular circumstances, but as to the time to be made available, there is no prescription, and that Tribunal is obliged to act in a reasonable manner in the circumstances of the case before it. In my view, for the reasons given by the Tribunal to which I have already referred, the length of time provided by the Tribunal was reasonable in all the circumstances.

3. As Ms Mitchelmore submits, the findings made by the Tribunal relating to the truthfulness of the applicant were open to it on the evidence before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ), and findings of fact, including findings on credibility, are for the Tribunal as the relevant decision-maker, and are not on their own susceptible to review by this Court (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). The Tribunal made findings which were open to it and the Tribunal gave comprehensive reasons for those findings.

4. Before the Court today, when given the opportunity, the applicant explained that he requested the Court to send his matter back to the Tribunal because while he was before the Tribunal he wanted to obtain papers from India from his mother and father, who were on pilgrimage and that he was not able to get the papers until some time later. He indicated that he now had the papers and could submit them to the Tribunal and wanted the Court to assist him by sending his matter back.

5. In this regard, I note that the issue of further time to submit documents was an issue raised with the Tribunal. At the conclusion of the first hearing, the applicant raised with the Tribunal the very same issue which he raises before the Court now, and sought an additional three months to wait for these documents. I understood today from the applicant that when he said that he was not able to get the papers later that he meant not until after the conclusion of the review with the Tribunal. Ultimately, what the Court is required to address is the matter to which I have already referred and that is whether the Tribunal acted reasonably in not providing three months to the applicant but something less than just under six weeks.

6. For the reasons that I have already stated, I cannot see any error in the way the Tribunal approached this issue. It is clear that the Tribunal was alive to the applicant’s request but for reasons which were open to it was of the view that the applicant had had sufficient time in all the circumstances. I can see no error in the Tribunal’s action in that regard.

7. Before the Court today the applicant repeated that because he was a Muslim his life was under threat, that he ran his own business with great difficulty and that he was required to close down his business. In effect, the applicant in some small measure repeated the claims made before the Tribunal. At best, repeating these claims to the Court now cannot be seen as anything other than asking the Court to substitute its own findings on the merits of the application for a protection visa for those of the Tribunal, that is, that the applicant seeks merits review. It is well-settled that this Court does not have authority to conduct such a merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

Conclusion

1. In all, despite opportunity, the applicant has been unable to show jurisdictional error on the part of the Tribunal. Nor, importantly, can I otherwise discern any error. For this reason, the application is dismissed.

2. The first respondent seeks a costs order in the amount of $3,650. There is nothing before the Court to argue against the making of such an order and the applicant, despite opportunity, had nothing to say on this matter. It is appropriate that such a costs order be made in the circumstances of this case. As to the amount of $3,650, I note that the relevant Schedule to the Rules of this court provides that for matters of this type that have reached this stage of proceedings (a final hearing), that it is open to the first respondent to seek an amount of $5,000.

3. In my view, I am not bound by what is set out in the Schedule to the Rules, but that it is a useful guide. What I am guided by, ultimately, is whether the amount that the first respondent seeks is a reasonable amount in all the circumstances. I note in this regard that the amount sought would cover the preparation and filing of multiple copies of the Court Book, two attendances by a solicitor in this matter before the Court, the filing of a formal response, the engagement of counsel, preparation and filing of written submissions and attendance by counsel at the hearing today. In all these circumstances, the amount sought is in my view a reasonable amount.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  3 June 2008