SZLYI v Minister for Immigration - [2008] FMCA 1169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLYI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1169

MIGRATION – RRT decision – Indian claiming persecution for publishing inflammatory articles – Tribunal found the articles to be concocted and disbelieved applicant – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424AA, 424A, 424A(1), 424A(2A)

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant:

SZLYI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 258 of 2008

Judgment of:

Smith FM

Hearing date:

11 August 2008

Delivered at:

Sydney

Delivered on:

11 August 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 258 of 2008

SZLYI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in June 2007, and on 31 July 2007 he applied for a protection visa against return to India. His visa application said that he was an English‑speaking freelance journalist in India. He had also worked in the United Arab Emirates. He said that he had tertiary qualifications in computer professional information systems and an advanced diploma in multimedia.
A statement attached to the visa application made imprecise claims that the applicant had written several articles after the Gujarat riots during 2002. The articles had been in favour of Muslims and against the culprits involved in the rioting, and he claimed that they exposed him to harassment by unspecified people after he “provided all the necessary evidence to the central government of India and law enforcement Authorities”. His statement said:
The informers from the law‑enforcements have disclosed all my relevant identities to political parties and anti social activist, which created a severe impact and threat to my life. The political parties and anti social elements got furious on me and put me under immense pressure and hurt me physically and mentally for cropping their images for their peripheral roles in Gujarat (Godhara) riots.
Following their harassments and life threatening, abusive anonymous calls and “unlawfully and maliciously” conspiring and fabricating me in the scandal and targeted me to punish me physically, mentally and emotionally, and one fateful night they ransacked my house, they hit me black and blue and destroy all my belongings and destroyed remaining evidence against them. Unable to bear trauma, I raised alarm and they ran helter‑skelter and thereafter kept threatening me with dire consequences. They have tarnished my image and career, which I can’t rebuild.
The applicant claimed that he was denied protection by the police, and then moved to Dubai and worked there as a sales assistant for over a year. He then returned to India, and:
But after a short interval, I pursued my work again as a freelance journalist, but the nightmare didn’t end when I published an article on fake police encounter case Malegaon bomb blast in Mosque tragedy, where the IPS officer and Hindu extremist from different state held in this gruesome act of killing innocent Muslims and reporting a fake encounter.
It was my bad luck once again at a wrong place at a wrong time where I couldn’t resist myself as my parents and my brothers had raised their hands asking me not to expect any help from them. At last when I drew blank I have no choice of staying further with my family, I have decided to move to Australia, because Australia provides protection which is much more better and more safe and secure country compare to other countries like Dubai, Singapore or Malaysia etc.
A delegate refused the visa application on 27 August 2007, on the ground that he was not satisfied that the applicant’s situation was as claimed, due to the limited information provided by the applicant and the lack of credible evidence to support his claims.
The day after the delegate’s decision was posted to the applicant, the Department received a submission from the applicant enclosing what were said to be copies of “articles which I had written and published in the newspaper”, and evidence of his being employed by the Hindustan Times in Mumbai. The enclosed eight articles were on pages of the Hindustan Times published on dates between 2002 and 2007, which appeared to have been downloaded from the internet or photocopied. Each page included a news report showing the applicant’s name in a by‑line as its author.
On appeal to the Refugee Review Tribunal, the applicant asked the Tribunal to consider his submission and documents. He also forwarded what purported to be a copy of the Mumbai Mirror, which referred to him by name, as a freelance journalist who had been subject to an attack in which “an unidentified group of people forcibly entered his home and threatened him and his family at gunpoint and destroyed all sought [sic] of evidence and personal properties. That attack came in retaliation for a series of investigative reports he wrote for Hindustan Times about corrupt Gujarat politicians and their procurement practices”. The article also said that the applicant had been physically assaulted by police in Mumbai. The applicant also forwarded another page from the Hindustan Times containing an article with his by‑line.
The applicant attended a hearing held by the Tribunal on 15 November 2007. The documents before me suggest he was sent a copy of the sound recording of the hearing, but neither party has put in evidence a transcript. I must therefore rely on the Tribunal’s description of the hearing.
According to the Tribunal, the applicant confirmed the truth of the claims he had made. He confirmed that he had “pursued a career in computers, namely graphic designing, basic computer skills, photo‑workshopping, and animation”. He said that he had no formal training as a journalist, and had “just worked as a freelance journalist … after completing his secondary education he started working as a junior assistant with the Hindustan Times, and he worked as a photographer and a reporter for the Hindustan Times from 2001 to 2007”. He also confirmed that he had worked as a sales representative in Dubai for 13 months from 2004 to 2005, and had travelled to Singapore and Malaysia.
The applicant confirmed his claim that he was at risk because of having written inflammatory articles about the Gujarat riots. The Tribunal then put to the applicant two matters arising from its own researches on the internet.
It told him that searches had found no evidence of articles being written by the applicant for the Hindustan Times, although multiple searches using a range of variations of spelling of his name had occurred.
The Tribunal also told the applicant that its researchers had located three articles written by different people, which appeared to have been extracted verbatim in three of the articles which the applicant had presented to the Department as his articles written for the Hindustan Times. The Tribunal showed the applicant the three articles, and put to him that he had plagiarised from those articles, when recently producing the documents which he had presented to the Department.
The Tribunal described what it put to the applicant and the opportunity it gave to him to comment:
The Tribunal noted that no original article documents were provided to the Department, only photocopied documents. The Tribunal noted that it had found three independent articles from the internet and that they were all substantially replicated in documents purportedly written by the applicant. The Tribunal had also advised the applicant at hearing that the country research section of the Tribunal had not been able to yield any results for searches of any articles written by the applicant for the Hindustan Times.
The Tribunal explained to the applicant the effect of this information. Namely that it impacted upon the applicant’s overall credibility, it suggested that the applicant had provided fraudulent and misleading documentary evidence to the Department to support his claims for protection. It indicated that the applicant had fabricated evidence and his claims for protection. It indicated that the applicant had failed to provide true and correct information to the Department of Immigration and to the Tribunal at review. The Tribunal noted that this could lead to the Tribunal affirming the decision under review. The Tribunal orally invited the applicant to comment on or respond to the information it had raised and provided him with copies of the articles at hearing. The applicant’s initial comment was that when there is an event in India and it is covered by a range of journalists, that there will be multiple articles pertaining to that event. The Tribunal noted at this point that the articles it had provided the applicant with at hearing, were replicated word for word in the article submitted by the applicant to the Department, purportedly penned by him as a freelance journalist. The Tribunal noted that this appeared to be direct plagiarism. The applicant then stated that he had no comment in relation to this information. The Tribunal then invited the applicant that he could seek additional time to comment on and respond to this information, and that the Tribunal will allow for this to transpire if he so wished. The applicant advised that he did not want to comment and did not need additional time.
The Tribunal handed down a decision on 15 January 2008, which affirmed the delegate’s decision.
In its “Findings and Reasons”, the Tribunal accepted that the applicant had qualifications in computer information systems and was proficient in the use of computers, including for graphic designing and photo workshop skills.
The Tribunal said that critical to his claims was an acceptance that he had posted a number of articles pertaining to the Gujarat riots, which may have had an inflammatory effect due to their content. It referred to how it had tested the veracity of this claim in its own investigations. It indicated that it was satisfied that these had been put to the applicant under s.424AA of the Migration Act 1958 (Cth), and said:
On the basis of the evidence before the Tribunal, the Tribunal cannot be satisfied that the applicant is a witness of truth, and this finding is made on the basis of the information that was put to the applicant at hearing under Section 424AA, asserting that the articles that he attributes to himself, were in fact penned by other authors. Indeed the evidence suggested that no such person with the applicant’s name had published articles in the timeframe asserted by the applicant for the Hindustan Times in India.
The Tribunal accordingly finds that the applicant has not worked as a freelance journalist in India, has not written inflammatory articles, and therefore his claims for protection had been fabricated in an attempt to elicit Australia’s protection obligations.
The Tribunal referred to evidence that the applicant had been able to live in India and complete his studies, as well as returning there after his work in the United Arab Emirates. It found that he would not experience serious harm as defined in the Migration Act upon return to India, and that he did not have a well‑founded fear of persecution for a Convention‑based reason.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims and documents should be accepted as genuine, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s original application contains the following four grounds:
1.That the Tribunal failed to uphold the natural justice to me in regard of my claims.
2.That the Tribunal made error of law being jurisdictional errors in that it did not put any weight to the relevant facts and/or the documents.
3.That the Tribunal relied on the irrelevant materials and/or questioned with unnecessary matters.
4.That the Tribunal failed to exercise its jurisdiction under the Migration Act and/or acted in excess of its jurisdiction.
In relation to Ground 1, in my opinion, the Tribunal has complied with requirements of natural justice, insofar as they are indicated in the provisions of the Migration Act. The Tribunal appears, in my opinion, to have properly followed the procedures set out in s.424AA, which are designed to afford procedural fairness in the course of a hearing. I am not satisfied that there was any failure to comply with that provision. The Tribunal was therefore not required to follow the alternative procedure under s.424A of inviting written comment (see s.424A(2A)).
In relation to Ground 2, I do not accept that the Tribunal failed genuinely to consider the applicant’s evidence in his documents. In my opinion, having arrived at the conclusion that at least three of the documents appeared to be concocted from articles written by other people, it was entitled to reject all of the applicant’s documents on the ground that they also may well have been concocted. It was therefore, in my opinion, open to the Tribunal on the evidence to disbelieve the applicant’s claims of persecution and his claimed fear to be at risk in India.
In relation to Ground 3, I am unable to identify any irrelevant materials or unnecessary matters which the Tribunal has relied upon or questioned the applicant about.
Ground 4 is unparticularised and I am unable to apply it to the present Tribunal’s decision.
The applicant has filed two amended applications. The second of these contained an additional ground. The three grounds relied on in that amended application are:
1.The Refugee Review Tribunal failed to exercise its duty under the section 424A of the Migration Act.
Particulars:
A.The Tribunal did not invite me to provide any written comment in relation to its adverse finding that:
(i) I had plagiarised the journal articles.
2.The Refugee Review Tribunal acted in excess of its jurisdiction by making the following comment:
Particulars:
A.The Tribunal acted in excess of its jurisdiction by making following comment that:
(i) I would not experience serious harm as defined in the Migration Act upon return to India.
3.The Refugee Review Tribunal failed to provide the benefit of doubt to the applicant.
Particulars:
A.The Tribunal failed to provide the benefit of doubt to me that:
(i) In reality I was genuinely credible but unable to substantiate all of my claims.
In relation to the first ground, as I have indicated above, the Tribunal was not obliged to invite written comments under s.424A(1), because it pursued the alternative procedure available under s.424AA (see s.424A(2A)).
The second ground, which was further addressed by the applicant in his oral submissions today, challenges the Tribunal’s conclusion that he would not suffer serious harm upon return to India. He submits that this conclusion was not open to the Tribunal in view of the documentary evidence in the newspaper articles stating that he had been subject to attack as a result of his investigative reports. However, in my opinion, the Tribunal has clearly rejected the claims of an attack and the genuineness of those documents. This followed from its finding that, in fact, he had not previously published inflammatory articles. It was therefore open to the Tribunal to make its finding that he would not experience serious harm if he returned to India.
In relation to the third ground, a Tribunal is only obliged to give “the benefit of doubt” under the real chances test if it is left in doubt about the history upon which refugee claims are based (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220). In the present case, the Tribunal made firm positive conclusions that the applicant had not worked as a freelance journalist, and had not written inflammatory articles. It clearly rejected the claimed consequential persecution. In those circumstances, in my opinion the Tribunal was not obliged to consider the applicant’s case upon the hypothesis that its findings might be wrong. I am unable to find any error such as is suggested by Ground 3.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 22 August 2008