SZLTW v Minister for Immigration
[2008] FMCA 565
•2 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 565 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal had regard to s.91R(2) of the Migration Act 1958 (Cth) in relation to serious harm – whether the Refugee Review Tribunal erred in failing to consider relocation – whether the Refugee Review Tribunal was obliged to consider independent country information – whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal considered all claims – whether the Refugee Review Tribunal considered a newspaper report provided by the applicants – whether the Refugee Review Tribunal required corroboration of applicants’ claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(2); 91S; 424; 424A; 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 66 ALR 299 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 Minister for Immigration & Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559 |
| First Applicant: | SZLTW |
| Second Applicant: | SZLTX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3857 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 April 2008 |
| Date of last submission: | 30 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr Y. Shariff |
| Solicitors for the Respondent: | Ms A. Crittenden, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3857 of 2008
| SZLTW |
First Applicant
| SZLTX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 October 2007 and handed down on 22 November 2007.
The first-named applicant claims to be from India and of Christian faith and a member of the Democratic Indira Congress Party (“the Applicant”). The second-named applicant is the wife of the first-named applicant and her claims are dependent on the claims of the Applicant (“the Applicant Wife”).
The applicants arrived in Australia on 18 September 2006 having departed legally from Cochin International Airport on a passport issued in their own names and a visitor visa issued on 17 July 2006.
On 27 October 2006, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In their protection visa application, the applicants claimed that they feared persecution by the Communist Party of India (Marxist) (“CPI(M)”) and the Bhartiya Janata Party (“the BJP”), both political parties in opposition to the Democratic Indira Congress Party, for their political opinion; and the Rashtriya Swawyamsevak Sangh (“the RSS”), a Hindu affiliated organisation, for their religion. The Applicant claimed that he had been a leading member of the Kerala Student Union (“KSU”), a student group affiliated with the Indian National Congress (“INC”). The Applicant claimed that, whilst a leading member of the KSU in 1981 and 1982, he had been involved in various clashes between the KSU and the Students Federation of India (“SFI”) which was affiliated with the CPI(M), one of which ended violently and resulted in members of both student organisations being hospitalised at the same hospital.
The Applicant claimed he and other leading KSU members visited injured members of the KSU at the hospital and at the same time SFI leading members were visiting their injured members. The Applicant claimed that in the subsequent clash a leader of the SFI, being a member of the Kerala State Legislative Assembly (“Mr B”) was stabbed and paralysed. The Applicant claimed that Mr B and other members of the SFI blamed him and his associates for Mr B’s paralysis.
The applicants claimed that on 24 November 1986 and 30 April 1989 the other leading member of the KSU at the time of Mr B’s paralysis were killed by the CPI(M). The Applicant claimed that he fled his hometown and returned when the INC was in power.
The Applicant claimed he was attacked by CPI(M) members after the alleged murder of two other KSU leaders on 30 April 1989 and was subsequently hospitalised for three months. The applicants claimed a second attack involving a knife took place involving them both on 12 August 1996 when the Applicant Wife was six months pregnant resulting in the serious wounding of the Applicant in the stomach and the hospitalisation of the Applicant Wife for three months. The applicants claimed both these matters were reported to police but remained unresolved. The Applicant claimed that whenever the CPI(M) was in power he and his family would be in danger of attack.
The applicants also claimed three attacks on their family by the RSS for converting Hindus to Christianity after moving to Chitoor. The applicants claimed the police had registered the attacks but “still it is pending”. The applicants claimed that in one of these attacks the Applicant Wife was seriously injured and admitted to hospital for one month.
On 24 January 2007, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas on the basis that the applicants are not people to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 19 February 2007, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. In support of the review application, the applicants provided identification documentation; written submissions dated 23 April 2007 in response to a letter of the Tribunal dated 30 March 2007; letters dated 24 May 2007, 6 August 2007 and 17 September 2007 all responding to a letter of the Tribunal dated 4 May 2007. On 30 October 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 17 December 2007, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
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.
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 political 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 2 March 2007, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to come to a hearing to give oral evidence and present arguments. The applicants attended that hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the applicants were not witnesses of truth.
The Applicant’s claims and the decision of the Tribunal are accurately summarised in the written submissions by counsel for the First Respondent, Mr Shariff, as follows:
“1.3The first applicant claims to fear persecution in India based on his political beliefs and activities and also his religious beliefs.[1] The first applicant claims that in or about 1981-1982 he was a member of the Kerala Student’s Union (“KSU”), the student wing of the Indian National Congress. He claimed that the KSU and the Students Federation of India (“SFI”) (the student wing of the Communist Part of India (Marxist) (“CPI(M)”)) were involved in an ongoing conflict which resulted in a serious injury being caused to Mr Simon Britto who was a student leader of the SFI at the time. The applicants claimed that the SFI and CPI(M) believed that the first applicant had been involved in inflicting the injury upon Mr Britto and that they had been seeking retribution ever since that time.
[1] CB 1-5.
1.4The applicants claimed that members of the CPI(M) had attacked the first applicant in or about 1990, 1996 and 2000. The applicants claimed that the attacks occurred during periods when the CPI(M) was in power. The applicants claimed to fear further attacks as Mr Britto had recently been elected to State Parliament (the Kerala State Assembly) and because the CPI(M) was part of an alliance that had formed government in the Central (Federal) Parliament. The applicants claimed that Mr Britto would have them killed.
1.5The applicants also claimed to be practising Christians. They claimed to have been working at a Christian retreat known as the Divine Retreat Centre. The applicants claimed to have been attacked by members of the RSS in or about 2004 and 2006. The applicants claimed that the RSS members were upset with them for converting Hindus to Christianity. The applicants claimed to fear further persecution by members of the RSS.
1.6On 24 January 2007, a delegate of the first respondent refused to grant the applicants a protection visa[2] and on or about 19 February 2007 the applicants applied to the Refugee Review Tribunal (the “Tribunal”) for a review of that decision.[3]
[2] CB 48-60.
[3] CB 61-64.
1.7The applicants were invited to and did appear before the Tribunal on 30 March 2007 to give oral evidence and present arguments.[4]
[4] CB 67-68.
1.8By letter dated 30 March 2007 (after the Tribunal hearing), and in accordance with s. 424A of the Migration Act 1958 (the “Act”), the Tribunal provided the applicants with particulars of certain information and invited them to comment on that information by 26 April 2007.[5] The s. 424A notice informed the applicants that the Tribunal had identified various contradictions between the statement made in the applicants’ visa applications and the evidence given by the applicants at the hearing. The applicants were further informed that the information particularised in the s. 424A letter was relevant because the Tribunal might find that the first applicant was not a truthful witness.
[5] CB 90-91.
1.9By letter dated 23 April 2007, the applicants responded to the Tribunal’s letter of 30 March 2007.[6]
[6] CB 92.
1.10By letter dated 4 May 2007, the Tribunal requested the applicants provide additional information by 29 May 2007.[7]
[7] CB 93-94.
1.11By letter dated 24 May 2007, the applicants requested further time (of up to 32 weeks in some respects) to provide the information requested in the Tribunal’s letter of 4 May 2007.[8] In response to this request, by letter dated 3 July 2007, the Tribunal extended the time for providing the additional information to 9 August 2007.[9]
[8] CB 95.
[9] CB 96.
1.12By letter dated 6 August 2007, the applicants requested a further 30 days to provide the additional information requested by the Tribunal.[10] In response to this request, by letter dated 9 August 2007, the Tribunal extended the time for providing the additional information to 17 September 2007.[11]
[10] CB 97.
[11] CB 98.
1.13By letter dated 17 September 2007, the applicants provided one item of further information to the Tribunal, namely, a purported article dated 12 July 2006 from the Deepika Daily newspaper.[12] The applicants again requested another 30 days to provide the other information requested by the Tribunal.[13]
[12] CB 101-2.
[13] CB 100.
1.14By letter dated 18 September 2007, the Tribunal refused the applicants’ further request for an extension of time, but noted that it would consider any information submitted by the applicants before the decision was finalised.[14]
1.15By letter dated 31 October 2007, the Tribunal invited the applicants to the handing down of its decision.[15]
2. The Tribunal’s Decision
2.1On 22 November 2007, the Tribunal handed down its decision dated 30 October 2007 in which it affirmed the decision of the delegate.[16]
2.2The Tribunal accepted that the applicants are citizens of the Republic of India.[17] However, the Tribunal concluded that the first applicant was not a credible or truthful witness.[18] The Tribunal found that there were a number of inconsistencies and contradictions between the statement given by the first applicant as part of his visa application and the (oral and other) evidence given by him to the Tribunal.[19]
2.3In particular, the Tribunal found several inconsistencies in relation to the alleged attacks that the applicants had claimed had happened in or about 1990[20], 1996[21], 2000[22], 2004[23] and 2006[24]. The Tribunal also did not accept the provenance or veracity of the purported article from the Deepika Daily which had been submitted by the applicants.[25]
2.4The Tribunal concluded that the inconsistencies in the first applicant’s evidence were of such a magnitude that they indicated that that the first applicant had not suffered harm in relation to any of the alleged incidents.[26] Based on its adverse credibility findings, the Tribunal also found that there was no real chance that the first or second applicants would suffer persecution for a Convention reason.[27]
2.5Having considered the applicants’ evidence as a whole, the Tribunal was not satisfied that the first applicant was a person to whom Australia had protection obligations under the Refugees Convention.[28] Accordingly, the second applicant’s application was also rejected.[29]”
[14] CB 103.
[15] CB 104-5.
[16] CB 109 (Tribunal’s decision record), 110-125 (Tribunal’s reasons and findings) and 126 (Tribunal’s decision).
[17] CB 120 para [66].
[18] CB 121 para [68] and 123 para [78].
[19] Ibid.
[20] CB 123 paras [79]-[82].
[21] Ibid.
[22] CB 121-2 paras [70]-[72].
[23] CB 122 paras [73]-[77].
[24] Ibid.
[25] CB 124 para [83].
[26] CB 121 para [68].
[27] CB 124 paras [84]-[86].
[28] CB 124 para [88].
[29] CB 125 para [89].
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of a Malayalam interpreter. The applicants have participated in the Panel Advice Scheme.
The Applicant confirmed that he appeared on behalf of both applicants and that the applicants relied on the grounds in the application filed on 17 December 2007.
By consent, the Applicant handed up a document, marked MFI A1, that purported to contain further grounds. This document is dealt with after the grounds of the application.
The grounds of the application are expressed to be as follows:
“1.The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2) of the Migration Act( which is a mandatory jurisdictional requirement for the Tribunal to do), if we asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against our case in the final outcome. The Tribunal used all information for a matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The tribunal also failed to consider the Amnesty International country information.
3. The Tribunal applied the wrong test:
(a)By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the Applicants the Tribunal was, in effect, placing too high an onus of the proof of the applicants and failing to give the applicants the benefit of the doubt.
(b) The tribunal left out individual elements of the applicants claim and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.
4. That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims.
5.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular Grounds:
a) The Tribunal did not consider the first applicant who had been immense pressure from CPI(M), BJP and RSS members because my membership with democratic India Congress.
b) In relation to the above the Tribunal did not consider the applicant’s claimed that he was attacked three times by the CPI(M) members and admitted to Hospital.
6.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 applicants satisfy the four key elements that are required to satisfy the Convention definition. The applicants state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa.
The first element – the applicant must be outside of his country.
The second element – the applicant must fear persecution. If the applicant return to his country his life 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 applicants 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.
LAW RELATING TO EXERCISE OF THE TRIBUNAL POWERS:
91R (2) Without limiting what is serious harm for the purpose of 1(b), the following are instance of serious harm for the purpose of that Paragraph-
(a) a treat to the person’s life and liberty.
414 Refugee Review Tribunal must review decision
(1)subject to sub-section (2), if a valid application is made under sec. 412 for review of an RRT decision, the Tribunal must review that decision.
415 Power of the Refugee Review Tribunal;
(1)The Tribunal may, for the purpose of the review of an RRT reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
420 Refugee Review Tribunal way of operating;
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective o providing a mechanism of review that is fair, just, economical, informed and quick.
Therefore the applicants submit that the Tribunal failed to analyse the “future harm” the applicants may face if they have to return back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicants claim.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally.
The grounds are unclear, difficult to understand and unsupported by relevant particulars.
I endeavoured to explore with the Applicant what he may have meant by the grounds, however, he was unable to provide any clarity or meaningful responses.
Ground 1 – “The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2) of the Migration Act( which is a mandatory jurisdictional requirement for the Tribunal to do), if we asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.”
The Applicant had no meaningful submission to make in support of ground 1.
Section 91R(2)
If ground 1 is contending that the Tribunal did not refer to s.91R(2) of the Act, it is clear from the Tribunal’s decision record that the Tribunal referred to s.91R(2) of the Act in considering the issue of serious harm. However, whether or not the alleged harm claimed by the Applicant was “serious harm” was not part of the Tribunal’s reason for affirming the decision under review. The Tribunal rejected the Applicant’s claims on the basis of adverse credibility findings based on inconsistencies and contradictions in the Applicant’s evidence.
Otherwise the Applicant’s complaint about s.91R(2) is no more than a disagreement with the Tribunal’s adverse findings in respect of his claim of serious harm. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272).
Relocation
If ground 1 is seeking to alleged that the Tribunal erred in failing to consider the issue of relocation, such an issue only arises where a Refugee Review Tribunal finds that a person has a well-founded fear of persecution and cannot obtain effective state protection (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265).
A fair reading of the Tribunal’s decision makes clear that the Tribunal identified with particularity the claims made by the applicants in their applications for protection visas; their evidence to the Tribunal; and the applicant’s responses to the Tribunal’s ss.424A and 424 letters, dated 30 March 2007 and 4 May 2007 respectively. The Tribunal also disclosed exchanges it had with the applicants about their evidence and noted matters of concern that it put to the applicants during the hearing, particularly, its concerns about various inconsistent aspects of their evidence.
In respect of the Applicant’s credibility, the Tribunal made the following findings:
“The Tribunal did not find the first applicant to be a credible witness for the reasons set out below. In particular there are a number of inconsistencies and contradictions in the statements made by the applicant, both written and orally, to the Department and the Tribunal which are of such a magnitude that it indicates that the first applicant did not suffer the claimed harm in the incidents that occurred in 2000m 2004 and 2006. The Tribunal’s finding that the first applicant is not credible witnesses is also relevant to the harm claimed to have occurred in 1990 and 1996.”
The Tribunal went on to identify with specificity the various inconsistencies upon which its adverse findings were based. The Tribunal found that the Applicant was not a truthful witness and that his statements both to the Department and to the Tribunal lacked credibility. The Tribunal was not satisfied that the Applicant and his family had ever been victims of attacks by the RSS nor that their home was attacked by CPI(M) members and that the second applicant and their daughter were injured in 2000.
The Tribunal identified, in particular, its concerns about the Applicant’s claims of attacks in 1990 and 1996 and the reasons why it was not satisfied about the Applicant’s claims.
The Tribunal considered the Applicant’s claim that he would be attacked by the CPI(M), if he were to return to India, and noted that the Applicant provided a newspaper report in support of this claim. A fair reading of the Tribunal’s decision makes clear that the Tribunal considered this report and ultimately placed no weight on the report on the basis that the Tribunal was not satisfied it was a genuine report.
The Tribunal concluded that, based on its adverse credibility findings in respect of the Applicant’s evidence, “there was not a real chance that the Applicant would suffer persecution because of his political opinion or imputed political opinion, religion or imputed religion, in the reasonably foreseeable future if he were to return to India.”
The Tribunal rejected comprehensively the Applicant’s claims of having suffered persecution in India for any Convention reason and was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason if he were to return to India now or in the foreseeable future.
The Tribunal also considered the claims of the Applicant Wife that she was attacked in 1996 and admitted to hospital and again in 2000. The Tribunal had regard to its findings in relation to its rejection of the Applicant’s claims of the attacks in 1996 and 2000. Based on these findings, the Tribunal concluded that there was not a real chance that the second applicant would suffer persecution for any Convention reason now or in the foreseeable future if she were to return to India.
A fair reading of the Tribunal’s decision makes clear that these findings were open to the Tribunal on the evidence and material before it and for which it provided reasons, including the adverse credibility findings. Matters of credit are matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In circumstances where the Tribunal has found there is no well-founded fear of persecution, it was unnecessary for the Tribunal to consider whether it was reasonable to expect the applicants to relocate within India.
Accordingly, ground 1 is not made out.
Ground 2 – “The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against our case in the final outcome. The Tribunal used all information for a matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The tribunal also failed to consider the Amnesty International country information.”
Ground 2 was not supported by particulars, evidence or meaningful submissions.
Use of Country Information
The Applicant was asked by the Court what was the Amnesty International information that he said the Tribunal failed to consider. The Applicant was unable to identify any such information. Further, the Applicant confirmed that there was no Amnesty International information that he had provided to the Tribunal in support of his application and which the Tribunal had failed to consider.
A fair reading of the Tribunal’s decision does not suggest that there was any use of any independent country information that formed part of the reason for affirming the decision under review.
If ground 2 is contending that the Tribunal was obliged to consider independent country information, such a contention is misconceived. It is a matter for the Tribunal, the independent information to which it has regard and the weight it sees fit to give any such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 66 ALR 299 at 328 per Brennan J).
As stated above in these Reasons, the Tribunal’s adverse findings in respect of the Applicant’s evidence were based on inconsistencies in the Applicant’s evidence. As stated above in these Reasons, the Tribunal’s adverse findings were open to it on the evidence and material before it and for which it provided reasons.
Bias
To the extent that ground 2 appears to allege that the Tribunal “was preoccupied and did not have a fresh look” at their claims, such allegation is tantamount to an allegation of bias. No evidence, particulars or submissions were made in support of this allegation. Such an allegation is serious and must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 (“Jia”)).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its decision other than with a mind open to persuasion. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Jia at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115])”.
Accordingly, ground 2 is not made out.
Ground 3(a) – “The Tribunal applied the wrong test: By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the Applicants the Tribunal was, in effect, placing too high an onus of the proof of the applicants and failing to give the applicants the benefit of the doubt.”
No particulars, evidence or submissions were made in support of this ground.
As stated above in these Reasons, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal “was, in effect, placing too high an onus of the proof of the applicants and failing to give the applicants the benefit of the doubt.”
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered carefully the claims made by the Applicant; explored at a hearing the evidence of both applicants; put to the Applicant matters of concern it had arising out of the evidence of both applicants, including putting such concerns to the applicants in writing; invited the applicants to provide further evidence in support of certain claims; and had regard to responses made by the applicants. The Tribunal made findings based on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to the facts as it found them to be in reaching its conclusion that neither applicant had a well-founded fear of persecution for any Convention reason were he or she to return to India now or in the reasonably foreseeable future.
It is for the applicants to satisfy the Tribunal that they meet the statutory criteria for being a refugee (Minister for Immigration & Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559). Section 65(1) of the Act mandates that, in the event that the Tribunal is not satisfied that an applicant meets the relevant statutory criteria, it must refuse an applicant a protection visa. The Tribunal was not so satisfied.
Accordingly, ground 3(a) is not made out.
Ground 3(b) – “The Tribunal applied the wrong test: The tribunal left out individual elements of the applicants claim and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.”
The Applicant was invited by the Court to identify those “individual elements of the Applicant’s claim” that he alleged were “left out” by the Tribunal. The Applicant made no meaningful response saying that he did not understand what the individual elements of his claim may involve because he had not drawn the grounds of his application. However, the Applicant confirmed that he signed the application. The Court explained to the Applicant, in the circumstances, the application is taken to be his and all the Court can do is offer the Applicant an opportunity to make whatever submissions he wishes in support of each of the grounds identified in the application.
A fair reading of the Tribunal’s decision discloses that the Tribunal considered in detail all the applicants’ claims and made findings in respect of individual claims. A fair reading of the Tribunal’s decision makes clear that the Tribunal also had regard to the totality of the applicants’ evidence.
In the circumstances, ground 3(b) is not made out.
Ground 4 – “That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims.”
Again the Court invited the Applicant to identify what were the “certain relevant consideration or ‘integers’ central to the applicant’s claims” that he contended were not taken into account by the Tribunal. Again the Applicant was unable to make an meaningful response or submission in support of ground 4.
A fair reading of the Tribunal’s decision does not support the contention in ground 4 that the Tribunal failed to take into account “certain relevant consideration or integers central to the applicant’s claims” (See paragraph 55 above in these Reasons).
In the circumstances, ground 4 is not made out.
Ground 5(a) – “The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction; The Tribunal did not consider the first applicant who had been immense pressure from CPI(M), BJP and RSS members because my membership with democratic India Congress.”
A fair reading of the Tribunal’s decision discloses that the Tribunal considered carefully each of the Applicant’s claims of “immense pressure from CPI(M), BJP and RSS members because of his membership with democratic Indira Congress.”
As stated above in these Reasons, ultimately, the Tribunal was not satisfied about the veracity of the Applicant’s claims.
Ground 5(a) is otherwise no more than a disagreement with the findings of the Tribunal. Such a complaint invites merits review which this Court cannot undertake
Accordingly, ground 5(a) is not made out.
Ground 5(b) – “The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction; In relation to the above the Tribunal did not consider the applicant’s claimed that he was attacked three times by the CPI(M) members and admitted to Hospital.”
A fair reading of the Tribunal’s decision makes clear that the Tribunal did in fact consider the Applicant’s claim that he was attacked three times by CPI(M) members and admitted to hospital. However, the Tribunal did not believe the Applicant’s evidence. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons including its adverse credibility findings.
Otherwise ground 5(b) appears to be no more than a disagreement with the adverse findings of the Tribunal. As stated above in these Reasons, such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 5(b) is not made out.
Ground 6 – “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 applicants satisfy the four key elements that are required to satisfy the Convention definition. The applicants state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa.”
The Applicant made no submissions in support of this unparticularised ground.
The Tribunal considered the issue of any future harm to the applicants and considered whether there was a real chance that each of the applicants would suffer persecution if they were to return now or in the reasonably foreseeable future to India for any Convention related reason. As stated above in these Reasons, the findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to the facts as it found them to be.
Accordingly, ground 6 is not made out.
Document MFI A1
In the document identified as MFI A1, the Applicant made the following complaints:
“A.IN THE PAGE 12 OF THE REFUGEE REVIEW TRIBUNAL DECISION THE THE MEDIA REPORT WAS NOT TRANSLATE BY THE OFFICIAL TRANSLATOR.
B.IN THE PAGE 10 OF THE RRT DECISION MY WIFE HAS STATED THE ONLY MY DAUGHTER WAS INJURED.
C.THE RRT DECISION REGARDING THE ATTACK IN DIVINE CENTRE.
D. ALL THE POLICE REPORT NOT GIVEN IN TIME.
E. THE HOSPITAL REPORT NOT GIVEN IN TIME.”
MFI A1 is unclear and difficult to understand. Again, I endeavoured to explore with the Applicant what he meant by A, B, C, D and E.
In relation to A, the Applicant appeared to complain that the Tribunal had not had regard to a newspaper report in support of his claims because it was not translated by an official translator.
However, a fair reading of the Tribunal’s decision makes clear that the Tribunal did not place weight on the newspaper report for two main reasons. First, was because it had been translated by the Applicant in respect of whom the Tribunal made adverse credibility findings. Second, was that the newspaper report did not “appear to fit into the front page or be aligned with other articles” in the newspaper. The Tribunal also found that “the content is further implausible as it reports on the front page of a daily newspaper a threat made a MLA which is criminal.”
In the circumstances, the Tribunal’s finding that it did not place weight on the newspaper report was open to it on the evidence and material before it and for which it gave reasons.
In relation to B, the Applicant appeared to be complaining that the Tribunal had not taken into consideration the claims of the Applicant that the second named applicant had stated that only her daughter was injured.
In the ‘Findings and Reasons’ section of its decision, the Tribunal acknowledged that the second applicant at the hearing stated that her elder daughter was injured.
However, the Tribunal stated in its reasons “another inconsistency discussed with the first applicant was that in the application he stated that in 2000 his daughter and spouse were seriously injured but at the hearing both applicants stated that only the daughter was injured.”
In a s.424A letter dated 30 March 2007, the Tribunal wrote to the Applicant stating the following:
“In your application you stated that in 2000 your home was attacked and your daughter was admitted to hospital and your spouse was seriously injured.
At the hearing you and your spouse stated that only your daughter was injured. When the contradiction in your statements was put to you at the hearing, you stated that your spouse was pregnant at the time and she was hospitalised.”
In the circumstances, the Tribunal was entitled to have regard to the various inconsistent evidence of the applicants in assessing their credibility as stated above in these Reasons, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for which it provided reasons.
In relation to C, the Applicant complained that the Tribunal had not listened to his allegations of attack on the Divine Centre essentially, because they were uncorroborated by a published media report.
However, in a letter dated 4 May 2007, the Tribunal informed the Applicant that he had stated in a letter dated 23 April 2007 to the Tribunal that “the 2004 attack on the Divine Retreat Centre was reported in the media” with his name and photograph. The Tribunal’s letter requested copies of the media reports. Thereafter, time was extended to the Applicant with the result that the Applicant was given until 17 September 2007 to provide this information.
In its letter, dated 9 August 2007, the Tribunal stated that it had considered the Applicant’s further request for an extension and that in granting a further extension until 17 September 2007, “this will be the last extension of time granted by the Tribunal for the reasons set out in your letters referred to above.”
In the circumstances, the Tribunal was entitled to have regard to the fact that the Applicant had not provided any corrobative evidence in support of his claims of an attack in the Divine Centre, despite having been given extensions of almost 5 months to do so. As stated above in these Reasons, the Tribunal’s adverse findings were open to it on the evidence and material before it and for which it provided reasons.
In relation to D, the Applicant complained that the Tribunal had not given him sufficient time to obtain police reports in support of his claims.
In its s.424 letter dated 4 May 2007, the Tribunal invited the Applicant to provide “Copies of all police reports mentioned in your protection visa application.”
As referred to in C above, the Tribunal granted three extensions to the Applicant effectively giving the Applicant from 4 May 2007 until the 17 September 2007 to provide such reports.
In its letter dated 9 August 2007 the Tribunal informed the Applicant that it would not grant any further extensions of time to allow him to provide police reports as they would have been prepared from information he provided to the police and it was likely he was provided with a copy at the time. The letter went on to inform the Applicant that if the Tribunal did not receive any reports within the period allowed or as extended it may make a decision on the review without taking any further action to obtain the additional information.
In the circumstances, the Tribunal was entitled to exercise its discretion to refuse to grant any further extension. In none of the Applicant’s letters seeking an extension did the Applicant provide any information or evidence of attempt’s made by him to obtain such reports. The letters simply sought further time to provide the information. In the circumstances the exercise of the Tribunal’s discretion was open to it and made according to law.
In relation to E, again, the Applicant appeared to complain that the Tribunal had not afforded him sufficient time to provided hospital reports in support of the Applicant’s claim that the second named applicant had been hospitalised following attacks upon the Applicant and his family in his home in 2000.
The Tribunal noted in its reasons that there was an inconsistency in the evidence of the Applicant as to when and why the second applicant was admitted to hospital. This inconsistency was put to the Applicant by the Tribunal in a letter dated 30 March 2007 by the Tribunal. The Tribunal noted that the Applicant did not explain the inconsistency in his response to that letter. The Tribunal found that there was a difference between being admitted to hospital because of pregnancy and being admitted to hospital because of serious injuries caused at the hands of the Applicant’s alleged persecutors. The Tribunal identified the evidence of both the Applicant and second applicant on this issue and found it to be inconsistent. The lack on consistency lead the Tribunal to find that it was not satisfied about the applicant’s claims that their house was attacked in 2000 or that the second applicant and their daughter were injured.
As stated above in these Reasons the findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings.
In the circumstances, none of the contentions and allegations made in MFI A1 by the Applicant establish jurisdictional error on the part of the Tribunal.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 proceeding before this Court is dismissed with costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 2 May 2008
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