SZLYB & Anor v Minister for Immigration

[2008] FMCA 1349

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLYB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1349

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZLYB” and “SZLYC”.

Migration Act 1958 (Cth), ss.91X, 424A

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Re Refugee Review Tribunal; ex parte H [2001] HCA 28
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZINP v Minister for Immigration & Citizenship [2007] FCA 1747
SZLSW v Minister for Immigration & Anor [2008] FMCA 498
SZLUI & Anor v Minister for Immigration & Anor [2008] FMCA 843
SZLUI v Minister for Immigration and Citizenship [2008] FCA 1318

First Applicant: SZLYB

Second Applicant: SZLYC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 235 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 14 July 2008

Delivered at: Sydney

Delivered on: 26 September 2008

REPRESENTATION

Counsel for the Applicant: Mr M. Newman (solicitor)

Solicitors for the Applicant: Newman & Associates

Counsel for the Respondents: Mr M.P. Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 4 February 2008 is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 235 of 2008

SZLYB

First Applicant

SZLYC

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicants are husband (SZLYB) and wife (SZLYC) from Ahmedabad in the state of Gujarat, India. The applicant husband was born in 1979 and his wife in 1980. The couple have a young son who was born in 2005 and remains in India in the care of his grandparents. The applicants claim that they own and operate a factory that supplies submersible pumps and spare parts. The applicant husband states that the factory employed 15 people, 12 of whom were Muslim. With the assistance of a bank loan the business expanded and started trading outside Gujarat.

2. The applicants claim that in January 2001 there was an earthquake which destroyed their home and part of the factory requiring extensive renovation and further borrowings. The applicant husband’s mother suffered “deep mental shock” because of the earthquake. They incurred medical expenses for her treatment.

3. In 2002 there were riots due to rail issues in Godhra.  It involved a dispute between Hindus and Muslims and, as the majority of the factory staff were Muslim, the business almost ceased to operate.  During the riots, the factory was damaged again and materials stolen.  The applicants claim that this resulted in them being “broken” economically, socially and mentally.  The applicant husband claims that his debts rapidly increased and he was unable to pay suppliers.  As most of the suppliers were Muslim, they sent extremists to his factory to collect the debt.  He states he was tortured and he and his family were pressured. 

4. The applicant claims that the Muslim workers took over the factory and then later forced him to take possession of it to pay his debt.  He states that when he refused their demands they assaulted him and he was severely injured.  As their lives were in danger the applicants borrowed money from friends to flee the area.  They stated that they were forced to leave behind their young son in India with his grandparents.

5. The applicants arrived in Australia on 22 March 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 30 April 2007.  A delegate of the Minister refused to grant the visa on 23 June 2007.  The applicants applied to the Refugee Review Tribunal (“the Tribunal”) on 4 July 2007 for review of the delegate’s decision.  It is the Tribunal decision of Michael Cooke (reference number 071549376) dated 9 January 2008 that is the subject of this judicial review.

6. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.

7. At the first Court date directions hearing, the applicants were unrepresented and indicated that they wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of their appeal.  They were allocated a panel advisor.  The applicants were also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 17 April 2008.  That order was complied with.

8. Subsequently, the applicants retained Mr Newman, solicitor, to represent them at the hearing and a further amended application and written submissions have been filed.

Tribunal decision

1. At the Tribunal hearing on 29 August 2007 the applicant wife confirmed that she made no separate claims for those of her husband and relied on his protection visa application.  The applicant husband indicated that all the information contained in his statement of claim filed with the Tribunal was correct and true, and translated into English by a friend.  Essentially his claim for persecution included the following:

   a)He had financial problems and owed a very large debt and as a result Muslim extremists who were unable to recover the debt wanted to kill him.

   b)Muslim extremists attacked him twice but he had no evidence of this or that they had destroyed his factory.

   c)He could not complain to the police because his attackers had a “political relationship with high authorities” and the police were “run by money”.

   d)He gave his factory to the Muslim extremists to settle his debt.

   e)He could not leave and relocate to another state in India because there was great poverty there and he was not “economically strong enough to move elsewhere to re-establish his business”.

   f)They left their son with his grandparents and fled to Australia.

   g)The applicant husband’s father was looking after the business but hiding with relatives.

2. The Tribunal reviewed at length the applicants’ claims and evidence.  It first reviewed the applicable law in unobjectionable terms and then set out the “Claims and Evidence” and its “Findings and Reasons”.  The Tribunal found that the applicant husband was not a witness of truth and was a person of poor credibility.  On this basis it did not accept any of his claims.  The Tribunal also made a separate and independent finding that the applicants could relocate to another part of India.  The Tribunal was not satisfied that the applicant husband had a well-founded fear of Convention based persecution in India now or in the foreseeable future.  The Tribunal affirmed the delegate’s decision not to grant the applicants a protection visa.

Consideration

Ground one

The Tribunal’s decision is tainted by apprehended bias.

Particulars

The Tribunal, without checking the facts, (and indeed was mistaken about them) launched an attack upon the applicant’s credibility by inferring that the facts of his case were a duplication of some other claim in some other unspecified case based upon another submersible pump factory.  This led to the Tribunal viewing the applicant’s oral evidence and his factual assertions through a prism of disbelief.

1. The Tribunal made observations in respect of one aspect of the applicant husband’s statement which Mr Newman requested the Court take particular attention of:

   o   That there aspects of the statement that were remarkably similar to other stories that the Tribunal has heard or seen from other Indian applicants who had reviews before the Tribunal.  The Tribunal said that in particular the claims that the applicant had a factory producing “submersible pumps” where there had been problems with the Muslims recalled another case.

   o   The Tribunal asked the applicant to confirm again the truth of his statement of claim.  He did so.

   o   He was asked who helped him to submit his statement document.  He said friends did and they were friends living close by in Griffith and they helped him to translate the documents.  The Tribunal reiterated that there seemed to be similarities with other statements made by Indian applicants previous before the Tribunal and what was his response to that suggestion.

   o   The applicant said “No, Your Honour This is my true story and I have not taken any assistance from any applicant or migration agent and it is the application I have made by post from Griffith”. (CB 123-124)

2. Mr Newman submits in written submissions that the Tribunal failed, either its initial or preliminary assessment of the application, during the hearing or in its written decision, to withdraw its prejudicial remarks that the applicant husband was a liar, a cheat and a fraud.  He submits that this was despite the fact that it held a mistaken belief that the applicants’ circumstances were similar to that of an unidentified case and that somehow applicants were aided in attempts to cheat and obtain protection visas.  Mr Newman argues that the Court should view these failures as an apprehension of bias. 

3. Mr Newman further submits that he has reviewed the Tribunal’s published cases on concerning submersible pumps and that none of them were similar to the applicant’s case.  He identified 19 reported Tribunal decisions referring to “pump” or “pumps” ranging from 1 October 1993 to 1 December 1999.  I agree with the submission that none of the identified cases extracted on his list specifically refer to submersible pumps.

4. However, I have previously reviewed a Tribunal decision of an applicant from Gujarat, India who stated that his business involved “an agency selling a particular kind of marble and had a factory that made submersible pumps”: SZLUI & Anor v Minister for Immigration & Anor [2008] FMCA 843. This was upheld on appeal: SZLUI v Minister for Immigration and Citizenship [2008] FCA 1318. Significantly that applicant’s claims stemmed from a prior relationship with a woman who he decided not to marry because she was involved with another person. This led to him being threatened by an unidentified associate of the woman and did not appear to have any direct relationship to his occupation.

5. As no reference was made to these comments in the Tribunal’s “Findings and Reasons” I believe that this issue did not progress after the applicant failed to respond to the Tribunal’s question.  This issue does not form part of the Tribunal’s findings in its decision.

6. The general test for apprehended bias is whether the circumstances are such that a fair minded and informed person might reasonably apprehend that the decision maker may not bring or have brought an impartial mind to bear on the decision: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ. Bias allegations are serious and not to be made likely. It is rare for bias to be apparent from nothing else but the reasons of a decision maker, see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]:

   44 The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

7. I agree with the submission of Mr Cleary, for the respondents, that the applicants have not filed any evidence to support the allegation of apprehended bias.

8. Mr Cleary submits that on a fair reading the Tribunal decision was fair, impartial and open minded in considering the claims made by the applicant husband, including its consideration of his credit.  The Tribunal ultimately rejected the applicant husband’s claims based on a credibility finding, which does not prove that the Tribunal closed its mind to the evidence before it, see SZLSW v Minister for Immigration & Anor [2008] FMCA 498 per Smith FM at [47]:

   I also do not consider that its discussion of this evidence shows that it closed its mind to relevant evidence when it arrived at its decision. I can find no evidence that the Tribunal closed its mind to evidence favourable for the applicant at a point where it was required to keep its conclusions open. In effect, such a submission contends that the Tribunal’s decision is vitiated by an apprehension of bias of the sort referred to in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425. However, the fact that a Tribunal in its ultimate conclusions put aside pieces of evidence presented as corroboration, does not prove that the Tribunal closed its mind to the evidentiary weight of the material before it reached that conclusion.

9. A determination as to whether an administrative decision is affected by apprehended bias should take into account the following:

   a)Natural justice does not require the decision maker’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion.  All that is required is that the decision maker is open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [72] and [86].

   b)Apprehended bias, in the context of an administrative decision maker, is not attended with the strictures that apply in a case of judicial prejudgment: Jia Legeng at [179]-[187] and [244]-[245]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [115].

   c)Where credibility is in issue, the decision maker will necessarily have to test the evidence presented – often vigorously: Ex parte H at [30].  Procedural fairness will often require that the applicant is plainly confronted with matters which bear adversely on his/her credit or which brings his/her account into question.  Further, the decision maker’s assessment of the applicant’s credit will often depend upon their demeanour ess and the manner in which they give evidence: ex parte H at [34].

10. The Tribunal’s “Findings and Reasons” states:

    The Tribunal discussed the applicant’s claim on the Department file with him during the hearing and asked him whether all his submitted claims and information were true.  He insisted that they were truthful.  However, when the applicant’s oral evidence is compared and contrasted with the statements attached to his visa application the Tribunal finds his claims to be confusing and contradictory.  For instance it took three attempts by the Tribunal to secure a response to its question whether the applicant had approached the Indian police authorities to seek protection from the claimed harm and harassment by the purported Muslim persecutors.  The applicant stated that despite the seriousness of his claims he had not done so because they were “middle class, small people” and that approaching them was “useless” and they was (sic) “a political relationship with the higher authorities”. (CB 128.5)

11. The Tribunal then went on to discuss details of when the applicant husband relinquished his factory to the Muslim creditors, details of the assaults he had suffered, his refusal to accept re-ownership of the factory and his statements that the business was now being run by his father.

12. The “Findings and Reasons” continue:

    The Tribunal observes that later in his oral evidence (August 2007) he claimed that his business was actually still functioning and his father still ran it – but in a supervisory capacity.

    He said he and his father were in the same business and he looked after the traders and loans.

    The Tribunal then questioned the applicant about the continuing business activities of the business that was apparently handed over to his persecutors in 2006.

    The applicant said that his father was aged and looked after the business and hiding with relatives.

    The applicant was asked about communication with his father regarding the claimed persecution activities by the Muslims that he claimed had driven him away from India.  He then announced that he had not spoken to his father and son for six months.  The first named applicant then recanted this oral evidence and said he did contact him, but they never talked about the harassment that had allegedly led to his economic demise and high debt and caused him to flee India.  The Tribunal finds the applicant’s explanation about his business and its continuing conduct by his aged father to be contradictory and information which confirms the unpersuasive nature of the applicant’s claims.  The Tribunal finds him to be an unreliable witness, not a witness of truth and a person of poor credibility. (CB 129)

13. I am satisfied on the material before me that the Tribunal undertook its obligation to test the applicant husband’s evidence and that he was confronted with matters which bore adversely on his credit.  In respect of the reference by the Tribunal that “there were aspects of the statement that were remarkably similar to other stories that the Tribunal has heard or seen from other Indian applicants”, it is consistent with Jia Legeng at [72] and [86] that the Tribunal can raise with the applicant husband observations of similar claims it had seen.  Significantly these observations do not form part of the Tribunal’s “Findings and Reasons” going to the applicant’s credit.  The issues resulting in the credibility finding are clearly stated in the decision.

14. In the circumstances I am satisfied that the allegation of apprehended bias cannot be sustained.

Ground two

The Tribunal erred in law and failed to exercise its jurisdiction by applying incorrect facts and ignoring relevant material as follows:

Particulars

The Tribunal at page 7 of its decision reported that the applicant in his statement had said that he had sold his business and that the statement that his father was operating flatly contradicted this and must be untrue.  The applicant did not make this claim.  The claim that he did not make was that he relinquished control of the business under duress to those who were extorting money from him that they could not manage it competently and had demanded that he retake it to preserve jobs.

1. Mr Newman submits that the applicant did not make a statement to the effect that he had sold his business.  Rather, that under duress, he relinquished control of his factory to his Muslim oppressors at the end of 2006.  They had then tried to run the business but instead ended up ruining it and so tried to get the applicant husband to take it back.  The applicant husband indicated that his father was involved in the business and managed the accounts.  Mr Newman submits that the Tribunal accused him of making contradictory statements; however, there was nothing in the statement or in his oral testimony that was inconsistent.

2. Mr Cleary contends that it is well-established that an error of fact does not amount to jurisdictional error: NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76. More recently in SZINP v Minister for Immigration & Citizenship [2007] FCA 1747 at [26] and [29] Collier J stated:

   [26] In the absence of particularisation it is difficult to deal with this ground of appeal. Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S 157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors…

   [29] While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

   • the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and

   • if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510.

1. At the Tribunal hearing the applicant husband claimed:

   He said he and his father were in the same business and he looked after the traders and loans.  He has been in Australia for six months and did not know what has gone on and they were still harassing his father. (CB 125.5) 

2. The Tribunal found:

   The Tribunal finds the applicant’s explanation about his business and its continuing conduct by his aged father to be contradictory and information which confirms the unpersuasive nature of the applicant’s claims. (CB 129.3)

3. Mr Cleary submits that the statement annexed to the protection visa claims:

   As I had opposed their demand they started attacking me and my family, so finally I had given my factory instead of my debt and they stop harassing me for a while… (CB 72.5)

4. The Tribunal’s decision states:

   The Tribunal asked him whether he gave the factory to the Muslims in payment of the debt… (CB 125.3)

5. I agree with Mr Cleary’s submission that this factual finding was open to the Tribunal and it committed no jurisdictional error in doing so.  This ground cannot be sustained.

Ground three

The Tribunal failed to send to the applicant a letter under s.324A setting out the reasons by which it might disbelieve the evidence and make an adverse decision.

Particulars

A letter was required to have been sent to the applicant setting out the similarity of his claim with that of cases that had gone before giving the applicant the opportunity of pointing out to the Tribunal the false basis under which it proposed to take the applicant’s oral testimony and decide upon its veracity.

1. The particular under this ground appears to address the issue of bias. I am satisfied that the issue has been dealt with at [9] to [12] above. As there is no s.324A of the Migration Act 1958 (Cth) (“the Act”), I will take this as being s.424A. Mr Newman submits that after the hearing the Tribunal sent the applicant husband a letter under the provisions of s.424A but he chose not to respond.

2. Mr Cleary submits that the applicants assert that the Tribunal ought to have invited them under s.424A to comment upon the reasons for its decision, namely the Tribunal’s credibility finding about the applicant husband. It is now well established that “information” for the purposes of s.424A(1) of the Act does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]. Mr Cleary submits that there was therefore no obligation on the Tribunal to give the applicants an opportunity to comment on any preliminary credit finding it considered making. In any event, the Tribunal sent a s.424A letter to the applicant husband which provided “clear particulars” (in compliance with s.424A(1)).

3. Mr Newman submits that the Tribunal wanted a short answer to its question “Did you go to the police?”. The applicant husband, who spoke through an interpreter, gave an explanation but the Tribunal was so hostile that it interpreted his answer as a variation of the truth. 

4. In the absence of tender of a transcript of the Tribunal hearing, Mr Newman is presumably referring to the following passages in the “Claims and Evidence”:

   o   The Tribunal asked him whether he had ever approached the Indian police authorities to prevent the criminal activities he complained of.  The applicant said in his country the police were run by money and he could say that if they went to the police and they would not listen and take the complaint as they were small people who did not have money to bribe.

   o   The Tribunal suggested, therefore, the answer was “No, I have never gone to complain”.  The applicant said that the police were not ready to listen to him and were asking for bribes and it was useless. Gujarat state was very corrupt and if he went and did not have money the police would not give protection.  The Tribunal asked him the question again as he appeared not to answer the question.  He said he had not gone to the police.  (CB 124)

5. In the “Findings and Reasons” the Tribunal states:

   …the Tribunal finds his claims to be confusing and contradictory.  For instance it took three attempts by the Tribunal to secure a response to its question whether the applicant had approached the Indian police authorities to seek protection from the claimed harm and harassment by the purported Muslim persecutors.  The applicant stated that despite the seriousness of his claims he had not done so because they were “middle class, small people” and that approaching them was “useless” and they was (sic) “a political relationship with the higher authorities”. (CB 128.7)

6. Mr Newman also submits that the Tribunal at CB 124 sought again to impugn the applicant husband’s credibility in relation to ownership of the factory.  In so doing the Tribunal overlooked the question of duress. 

7. Mr Newman appears to be referring to the following passage from the Tribunal’s “Findings and Reasons”:

   In his visa application details (April 2007) he claimed he was still the owner as at February 2007 (D1, f.64).  He claimed, in his statement attached to his application (April 2007), that he had given over his business to the Muslim creditors who  had then destroyed the business and demanded he take it back and repay them moneys allegedly owed to them.  (CB 128.8)

8. After further consideration of the factory’s operation, the Tribunal found:

   The Tribunal finds the applicant’s explanation about his business and its continuing conduct by his aged father to be contradictory and information which confirms the unpersuasive nature of the applicant’s claims.  The Tribunal finds him to be an unreliable witness, not a witness of truth and a person of poor credibility. (CB 129.4)

9. Mr Newman submits that the Tribunal was critical of the applicant husband’s failure to seek police protection.  Further that the applicant husband had answered several times that it was pointless to do so because the police would only respond to bribes and that he was impecunious.

10. I now refer to Mr Newman’s submission that the Tribunal impugned the applicant’s credibility because of his failure to approach the police and by handing his business to his Muslim creditors.  I am satisfied that the Tribunal clearly explained the concerns it had with the applicant husband’s reluctance to answer why he had failed to take his problems to the police.  I am satisfied from the passages extracted above that the Tribunal was testing the evidence presented and it was permitted to do so vigorously.  This was an issue which bore adversely on the applicant husband’s credit: ex parte H at [30].  In respect of the applicants surrendering the business to their creditors, a fair reading of the Tribunal decision suggests this is no more than a misunderstanding of the language used.  The adverse conclusion drawn by the Tribunal does not focus on the surrender of the business to the creditors but rather the alleged conduct of the aged father in continuing to conduct the business, when the applicant husband had given evidence that the business had been destroyed and it was not possible to continue operating it.  This finding had no relation to the issue of duress leading to the applicant surrendering his business.  I am not satisfied that the Tribunal’s findings in respect of the applicant’s credit concerning his father’s continuing involvement in the business has to do with any duress he may have suffered at the hands of his creditors.  This ground cannot be sustained.

Conclusion

1. I am satisfied that none of the grounds in the amended application filed on 17 June 2008 can be sustained and that this application should be dismissed with costs. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  26 September 2008