SZLZQ v Minister for Immigration

[2008] FMCA 1108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1108

MIGRATION – Review of RRT decision – where Tribunal not satisfied that incidents of persecution claimed by the applicant had occurred – whether Tribunal was required to make inquiries regarding a document provided by the applicant – whether Tribunal misapplied the ‘real chance’ test – whether Tribunal should have considered the cumulative effect of the applicant’s claim – whether Tribunal required to apply test on the issue of relocation.

Migration Act 1958 (Cth), ss.48B, 422B, 424A(1), 424A(3)(a)

Dranichnikov v Ministerfor Immigration (2003) 197 ALR 389
Applicant S214/2003 v Minister for Immigration [2006] FCAFC 166
Minister for Immigration v Le [2007] FCA 1318
Prasad v Minister for Immigration (1985) 65 ALR 549
SZHVL v Minister for Immigration [2008] FCA 356
Minister for Immigration v SGLB [2004] 207 ALR 12
Seyfarth v Minister for Immigration [2004] FCA 1713

First Applicant: SZLZQ

Second Applicant: SZLZR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 413 of 2008

Judgment of: Raphael FM

Hearing date: 1 August 2008

Date of Last Submission: 1 August 2008

Delivered at: Sydney

Delivered on: 1 August 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr J. Mitchell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 413 of 2008

SZLZQ

First Applicant

SZLZR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of India.  They arrived in Australia on 1 April 2007 and on 14 May 2007 applied to the Department of Immigration and Citizenship for protection (Class XA) visas.  The substantive applicant was the husband.  The wife completed Form D, which is for a member of a family unit who does not have her own claims to be a refugee.  On 21 June 2007, the delegate refused to grant protection visas and on 17 July 2007 the applicants applied for review of the delegate's decision. 

2. The Tribunal held a hearing, which the male applicant attended on 20 September 2007.  On 21 September 2007, the Tribunal wrote to the applicants enclosing a copy of the tape recording of the hearing.  On 3 October 2007, the Tribunal wrote to the male applicant inviting him to comment on information that the Tribunal considered was, subject to any of those comments, to be the reason or part of the reason for affirming the decision under review.

3. Whilst there is no evidence that this letter was responded to, a letter in almost identical form was sent by the Tribunal to the applicants on 5 December 2007 [CB 103]-[106] which was responded to by way of a letter dated 23 December 2007 [CB 108]-[109] and also at [CB 116]-[117]. On 17 January 2008, the Tribunal determined to affirm the decision and handed that decision down on 7 February 2008.

4. The ground upon which the male applicant claimed to be a person to whom Australia owed protection obligations was his fear as a Hindu of Muslim fundamentalists, and in particular a named person in his home state of Gujarat.  The applicant told how he came from a family which had a long history of involvement in an organization known as Akhil Bharatiya Jana Sangh (“ABJS”).  His father was associated with that organization for over 40 years and the applicant told how the founding leader, a Mr Madhok, "had always visited our home when he was coming to Gujarat.  He was a very good friend of my father" [CB 83]- [84]. The applicant claimed that on 4 September 2004 a group of 50 Muslim fundamentalists attacked his business, which was a tyre trading company. They destroyed the trading centre and looted it. He claims that he informed the police but they did nothing. The applicant claimed that thereafter he tried to relocate to other places within India but was unable to do so. He tried other cities in Gujarat, and also tried Maharashtra and Mumbai, but he said the business was still operating in Gujarat. The applicant claimed that four people belonging to the named Muslim oppressor had surrounded him and wanted to kill him in October 2005. This was because of his high profile within the ABJS party.

5. The Tribunal questioned the applicant about his claims.  The applicant had produced a piece of paper [CB 81]-[82] which he said was a police report of a statement that he gave to the police when the shop was invaded.  The Tribunal asked the applicant why the statement had no apparent official stamps or did not follow the normal first information report, and indicated that it had concerns about the genuineness of this document as representing a statement that the applicant had truly given to the police.  The Tribunal questioned the applicant about his father and his involvement in the ABJS and his father's relationship with the founder, Mr Madhok.  The applicant indicated that Mr Madhok had died, but the Tribunal had information that he was in fact still alive in 2007.  The Tribunal then asked the applicant about the other founder of the organization, Dr Mookerjee.  The applicant claimed that he was still alive but the Tribunal had information that this gentleman had died in about 1953.  The Tribunal expressed concern at the time the applicant took to leave India after the incidents he claimed to have caused him to have a well-founded fear of persecution.  The applicant indicated that he had left his business and gone to other parts of India to try and relocate and re-establish it, but that was unsuccessful.  The Tribunal pointed out to the applicant that he had also said that the business was still running Gujarat.

6. The concerns expressed by the Tribunal at the hearing were reduced to writing in the two s.424A letters that I have referred to and the applicant was requested to respond.  The Tribunal considered the responses given, but concluded that they were not satisfactory and could not assuage the Tribunal's concern about the credibility of the applicant.  The Tribunal, throughout its findings and reasons, expressed the view that it could not accept the applicant's evidence about the family association with ABJS and was unable to be satisfied that the incidents of persecution referred to by the applicant had occurred or that the applicant had a well-founded fear of persecution from the named person or any other Muslim fundamentalists [CB 147]:

   “Accordingly the Tribunal is not satisfied that the applicant was persecuted for reasons of his political opinion or his religion.  The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of his political opinion or his religion if he returns to his country of nationality.  The Tribunal does not accept that the applicant has a well-founded fear of being persecuted in India for the reasons that he claims.  The Tribunal does not accept that he has been a member or a leader of the RSS or ABJS Party or Bharatiya Jana Sangh or Rashtriya Swayamsevak Sangh or any other political party and does not accept that he has been discriminated against, targeted or persecuted because of his membership of such an organisation or that there is a real chance that he will be persecuted for reasons of his political opinion or his religion.”

7. On 2 May 2008, the applicant filed an amended application with this court in which he gave six grounds for claiming that the Tribunal had fallen into jurisdictional error in the manner in which it had come to its conclusions.  The first ground was that the Tribunal had erred in making findings of well-founded fear because it had adopted an unduly harsh approach to the definition.  The Tribunal explains what a well-founded fear is at [CB 126] and does not otherwise suggest that the allegations made by the applicant were not serious or might not have constituted persecution if they had been accepted.  What the Tribunal did was to assess whether or not the applicant was a credible witness so that it could come to a conclusion as to whether or not the events described by him had occurred and the fears which he claimed were well-founded.  I do not believe that the Tribunal fell into error in this way.

8. The second matter is described as a particular.  It suggests that the Tribunal had come to its opinion before the hearing.  It then talks about the first information report relating to the incident that I have already discussed and suggests that there was no reason why the Tribunal did not believe the applicant in relation to it or to the incident to which it describes.  It says that the Tribunal made a jurisdictional error when it made the decision without any proper investigation.  At [CB 143], there is some discussion by the Tribunal concerning the document:

   “The document that he had provided was a handwritten document.  It had one signature on it and no official stamp and is not written on official stationery.  There is no letterhead although it appears to have a police station IPC code on it.  The applicant has not signed it.  The only signature is claimed to be from a police inspector at Bapunagar Police Station.  The applicant then stated that this document cannot be stamped and only the FIR can be and the Tribunal can get more information by giving the reference.  The Tribunal questioned the applicant about this document and informed him that it was up to him to provide information to support his claim.  The Tribunal is not satisfied that the document is a genuine ‘first information report’ or a statement in support of a ‘first information report’.”

   In advising the applicant that it was his responsibility to obtain the information, the Tribunal was doing no more than indicating to the applicant that it was his responsibility to advance his own case, a fundamental pillar of the Tribunal system: Dranichnikov v Ministerfor Immigration (2003) 197 ALR 389 at [78]; Applicant S214/2003 v Minister for Immigration [2006] FCAFC 166 at [26]. Whilst it is accepted that in certain circumstances, the Tribunal may have a duty to inquire, this is only required where the information relates to a critical issue and is readily available and centrally relevant: Minister for Immigration v Le [2007] FCA 1318, Prasad v Ministerfor Immigration (1985) 65 ALR 549. There is no general duty to inquire: SZHVL v Ministerfor Immigration [2008] FCA 356; Minister for Immigration v SGLB [2004] 207 ALR 12; Seyfarth v Minister for Immigration [2004] FCA 1713.

9. The third matter raised by the applicant was that the Tribunal had misconstrued the ‘real chance’ test.  This is particularised by saying that the Tribunal did not accept the oral or written evidence provided by the applicant and that there was no basis for saying that all the documents related to his involvement with political parties were fabricated:

   “At the time of hearing, the Tribunal asked from the applicant whether the police took any action, he said he did not know much because he was in hospital.  The Police did something wrong and released him on bail.  The applicant claims that the Tribunal designed questions in such a way that he was confused and stressed and could not understand or follow all the questions properly.  The Tribunal hearing was not a judicial hearing when the Tribunal understands that he was not presented and totally believed what the interpreter interpreted.”

   There are a number of complaints in these particulars.  The first one appears to take issue with the Tribunal's views of the applicant's evidence and this seems to be requiring the court to provide the applicant with merits review, which is impermissible.  The second matter relates to the applicant's mental condition, but he has provided no substantiating evidence of the fact that this led him to misunderstand any questions of the Tribunal or to respond incorrectly.  In any event, the matters that were dispositive of his claim were clearly raised in writing by the Tribunal in the s.424A letters, and the applicant had an ample opportunity in his response to deal with these concerns if they had existed at the time.  I am not clear what the complaint about the interpreter is.  Nothing was said about this today and I have not been provided either with a transcript or with a tape recording.  The applicant has not asked me to hear a tape.  I cannot deal with this complaint in the absence of any evidence.

10. The fourth ground is said to be that the Tribunal failed to assess the cumulative effects of separate incidents related to his claim, but it goes on to suggest that the applicant was denied natural justice and procedural fairness and was asked irrelevant questions directed at discrediting his credibility. There is ample authority to the effect that a Tribunal should consider the cumulative effect of several incidents where it may have taken a view that individual incidents would not constitute persecution or provide grounds for a well-founded fear. But where the Tribunal does not believe that any of the incidents described by the applicant took place, there is no need for such an exercise. In this case, the applicant's story in whole was not believed and there was therefore no obligation on the Tribunal to consider the cumulative effects of the persecution he claimed he had undergone. There are no particulars about the denial of natural justice or procedural fairness and this case was one decided subject to the provisions of s.422B of the Migration Act 1958 (Cth) (the “Act”). In the absence of any particulars, I am unable to assist. In the same way, I have not been told what the irrelevant questions were. The ones reported in the Tribunal's decision seem to me to be relevant either to the claims made or to an investigation of the applicant's credibility.

11. The fifth ground is that the Tribunal made its decision on the basis of unreliable information and should have made an investigation before making the decision. I have already dealt with the circumstances in which a Tribunal might be obliged to make investigations. In this case, the applicant says that he did not have a chance to see what documents were being used by the Tribunal in making the decision. This seems to be an attack on the independent country information utilised by the Tribunal and set out in some considerable detail [CB 144]. None of this information is information that is particularly about the applicant and all of it seems to be information which is exempted from the provisions of s.424A(1) by s.424A(3)(a) of the Act.

12. Finally, the applicant claims that the Tribunal applied the wrong test on the issue of relocation.  This claim is not substantiated because the Tribunal did not make any finding about relocation other than the finding that it did not believe that the applicant actually tried to relocate.  Relocation was not a dispositive issue and, therefore, this ground is not one which this court can accept.

13. At the hearing today, the applicant told me that he relied on his amended application and did not address me on any other matters, save in respect to certain additional information that he had which he had been unable to provide to the Tribunal and information about the current situation in India. I explained to the applicant that I was unable to take into account in my decision any evidence that he was unable to provide to the Tribunal, and that the current situation in India was not a ground for referring the matter back to the Tribunal, although it might form the basis of an application to the Minister under s.48B of the Act. The application is dismissed. The applicants must pay the respondents' costs which I assess in the sum of $4,000.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  4 August 2008