SZMAH v Minister for Immigration

Case •

[2008] FMCA 859

•

24 June 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 859
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India on various bases which changed over time – applicant not believed – no reviewable error found – application dismissed.
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 424A, 425
Sabaratnasingam v Minister for Immigration [2000] FCA 261
SZBYR v Minister for Immigration [2007] HCA 26
Applicant: SZMAH
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 534 of 2008
Judgment of: Driver FM
Hearing date: 24 June 2008
Delivered at: Sydney
Delivered on: 24 June 2008

REPRESENTATION

Solicitors for the Applicant: Mr S Singh
Sarom Solicitors
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 534 of 2008

SZMAH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

  1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 7 February 2008.  The Tribunal affirmed a decision of a delegate to the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of persecution on various bases.  Background facts are set out in written submissions filed on behalf of the applicant on 10 June 2008 and on behalf of the Minister on 17 June 2008.  I adopt as background, for the purposes of this judgment, with necessary amendments, paragraphs 2 to 4 of the applicant’s submissions and paragraphs 2 to 4 of the Minister’s written submissions:

    The applicant is [a] citizen of [India].  The applicant arrived in Australia on 20 April 2007 and applied for a protection visa on 30 April 2007 with the Department of Immigration and Citizenship (“DIAC”).

    DIAC refused the application for [a] protection visa.  The decision of the delegate of the Minister was made on or about 19 May 2007.

    The application for review of the Tribunal’s decision in this Court was filed on 23 June 2005.  An amended application was filed on 5 March 2008 together with an affidavit.

    Applicant’s claims to the Department and the Tribunal

    The applicant was one of a group of 22 applicants who applied for a protection visa.  The applicant claims not to have made any claims to DIAC because his forms were prepared by an agent who wrote the same things on all the 22 applicants’ forms.  This generalised claim could be found at court book (“CB”) 33.

    Following the refusal of the application by the Department’s delegate, the applicant lodged an application for review with the Tribunal on 12 June 2007.

    The Tribunal conducted one hearing on 18 July 2007. Following the first hearing the Tribunal sent the applicant a letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Upon receipt of the Tribunal’s letter, the applicant through his representative retracted his earlier claims and made fresh claims. The Tribunal conducted a second hearing on 17 October 2007.

    On 25 October 2007 again wrote to the applicant pursuant to s.424A: CB 99-102.

    The applicant claimed to fear persecution in India for reason of his religion and political opinion.  His claims changed over time, but as ultimately presented to the Tribunal he claimed that he was a Hindu and had exposed a Mr Jabbar who had been stealing from the applicant’s father’s marble business.  The applicant claimed that Mr Jabbar and his friends were Muslims, and that he was assaulted by 50 persons led by Mr Jabbar in July 2006, and that in late 2006 he was assaulted by Mr Jabbar alone.  The applicant claimed that he then refused to leave his house for fear of Mr Jabbar before going to Mumbai in March 2007 and thence to Australia.  The applicant also claimed to be a member of the Youth Wing of the Congress Party and to have been harassed by Muslim members of the BJP in 2005.  See generally CB 147-167.

    The Tribunal found that the applicant was not credible: CB 168 [108], noting numerous inconsistencies and implausibilities in the applicant’s claims over time and as ultimately presented to the Tribunal.  As a result, the Tribunal concluded that none of the applicant’s claims concerning being threatened or attacked by Mr Jabbar were true: CB 171 [118], and that on his own evidence, he had left the Youth Wing of the Congress Party in 2005 and had not been threatened or attacked for reason of his political opinion since, so his claimed fears of harm for reason of his religion or political opinion were not well founded.  See generally CB 168-172.

  2. These proceedings began with a show cause application filed on 5 March 2008. The applicant now relies on an amended application filed on 10 June 2008. The grounds in that application are expressed at length in the application, but in summary fall into four categories. First, there is an assertion that the Tribunal failed to meet its obligations under s.424A of the Migration Act. Secondly, there is an assertion that the Tribunal did not meet its obligation to consider whether the applicant could relocate within India to avoid persecution. Thirdly, there is an assertion of procedural unfairness and, lastly, there is an assertion of a failure to consider the convention based nexus with the applicant’s claims.

  3. I have before me as evidence the book of relevant documents filed on 24 April 2008.  The applicant had prepared two affidavits, the first was not read and the second I declined to receive on the basis that it contained legal assertions and his solicitor had prepared written submissions which more effectively canvassed those assertions.

  4. The assertion that the Tribunal failed to meet its obligations under s.424A of the Migration Act is based upon the somewhat unfortunate history of the applicant’s claims. The Tribunal conducted two hearings and it is apparent from the book of relevant documents that the Tribunal considered a second hearing was necessary in the light of the applicant’s response to the first s.424A invitation sent to him through his migration agent. The substantive response to that invitation amounted to an abandonment of much of the applicant’s claims as well as a new set of claims.

  5. The Tribunal, properly and fairly in my view, considered that a second hearing was necessary. At that hearing the Tribunal was, if anything, more troubled by the applicant’s testimony than at the first hearing. In particular, the Tribunal was troubled by inconsistencies and contradictions in the applicant’s written and oral claims. With that in mind, the Tribunal sent a second invitation to the applicant to comment, pursuant to s.424A of the Migration Act, by letter dated 25 October 2007. That letter referred specifically to information contained in a subclass 421 visa application made by the applicant, in his protection visa application, in the statements made in response to the first s.424A invitation and at the two Tribunal hearings.

  6. The applicant’s solicitor submits that the Tribunal should not have relied upon claims or testimony that were retracted by the applicant without giving the applicant expressly the opportunity to comment upon that class of information. The submission was somewhat generally put and the applicant’s solicitor was not able to identify any particular information which had been retracted by the applicant which had been contained in his visa applications and which had not been disclosed by the Tribunal in either of the s.424A invitations.

  7. There was no obligation on the Tribunal to disclose, pursuant to s. 424A, its own view of the applicant’s claims because that would be to disclose its own thinking processes. Neither was there any obligation on the Tribunal to disclose inconsistencies, gaps or other difficulties with the applicant’s evidence, having regard to the High Court’s decision in SZBYR v Minister for Immigration [2007] HCA 26 at [18].

  8. Further, the information contained in the primary visa applications was not, on its face, information that was adverse. The fact of the retraction of those claims might be taken to be adverse, but the retraction was contained in the first response to the first s.424A invitation and that was information given by the applicant to the Tribunal for the purposes of the review and hence fell within the exception to the general obligation of disclosure contained in s.424A(3)(b).

  9. On my reading of the Tribunal decision, there was no reliance upon adverse information that was not given by the applicant to the Tribunal for the purposes of the review, or was not inconsistencies or contradictions between the information given by the applicant either for the purposes of the review and in his primary visa applications. To the extent that s.424A was engaged at all, in my view the Tribunal met its disclosure obligation in the two s. 424A letters that were sent.

  10. The asserted error in relation to relocation may be dealt with shortly. There was no obligation to deal with the issue of relocation. The Tribunal found that the applicant did not have a well-founded fear of persecution anywhere in India: Sabaratnasingam v Minister for Immigration [2000] FCA 261 at [13]. I reject that ground.

  11. The assertion of a want of procedural fairness was somewhat generally put. I accept the Minister’s submission that the general law fair hearing rule no longer applies in the light of s. 422B of the Migration Act. Other elements of the rules of procedural fairness continue to place burdens upon the Tribunal and the Tribunal will fall into error if it fails to provide a real hearing opportunity pursuant to s.425 or if it does not understand the task that it has to perform or asks itself the wrong question or overlooks relevant material or basis its decision upon irrelevant material.

  12. However, the applicant has not persuaded me that the Tribunal fell into any of those errors. There was certainly no breach of s.425 of the Migration Act. The Tribunal properly and fairly elected to conduct a second hearing when it became apparent that the applicant’s claims had changed significantly after the first hearing.

  13. In relation to both the third and the fourth grounds, I also do not accept that the Tribunal was distracted from the task that it had to perform. It is true that the Tribunal’s decision was based fundamentally upon its adverse credibility findings against the applicant. Nevertheless, the Tribunal understood the task that it had to perform and concluded by finding that there was not a real chance that the applicant would suffer persecution for a convention reason either now or in the reasonably foreseeable future if he returns to India: CB 172.

  14. I accept the Minister’s submission that in order to perform its task it was necessary for the Tribunal to consider the claims of past harm. Having rejected the greater part of those claims, it was open to the Tribunal, on the material before it, to conclude that there was no well-founded fear of future harm for a Convention reason.

  15. I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.

  16. The application, having been dismissed costs should follow the event. The Minister seeks an order for costs in the sum of $5,000 in accordance with the Court scale. The applicant’s solicitor did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  27 June 2008

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