SZMBA v Minister for Immigration

[2008] FMCA 907

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBA v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 907

MIGRATION – RRT decision – Indian Muslim claiming persecution for religion and other grounds – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.430

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant: SZMBA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 626 of 2008

Judgment of: Smith FM

Hearing date: 23 June 2008

Delivered at: Sydney

Delivered on: 23 June 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms T Wong

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 626 of 2008

SZMBA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in July 2007, and on 10 September 2007 he applied for a protection visa against return to India.  A hand written statement by him in English explained why he feared persecution if he returned to India. 

2. He said that he was a person of Muslim religion from the State of Tamil Nadu. He lived, and was working in a family business, in a town which was particularly affected by the 26 December 2004 tsunami. He said that with other people he formed a committee to distribute cash, houses, medicine and other items received from private organisations, and that he was the joint secretary with “George”. A senior politician from the BJP pro‑Hindu party, “K”, was made the leader of the committee. He claimed, with George, to have “strongly objected and condemned” K’s distribution of the assistance only to Hindu people, and “went to the police station, but the police did not take any action” against K.

3. In June 2005 the applicant and George planned a protest procession and road block, but 10 days before the protest George was missing, and subsequently the applicant heard that he had been kidnapped and drowned at sea by K. When the applicant and other friends and relations of George went to the police, the police did not accept their complaint. When the applicant decided to hold the blockade and procession in August 2005, K came to his house “with the rowdies” and threatened his parents. At that time, the applicant was attacked when returning home from a wedding and received a cut left hand. There was also an attempt to kidnap his daughter, and the applicant was again attacked in a procession supporting Muslim politics.

4. To escape this pressure the applicant flew to Bangkok in March 2006 and took a job there for 10 months. He returned briefly in February 2007, when he and his wife were attacked when returning from the cinema. He also returned home in May 2007, for the period that his wife was in a nursing home, and then went back to Bangkok. He claimed that before coming to Australia in July 2007, nobody was answering the telephone at his home in India and he did not know where his family were. He therefore decided to come to Australia from Bangkok on a visa which he already obtained.

5. A delegate refused the application on 24 October 2007.  The delegate noted that the applicant had not provided evidence to show he was unable to access State protection, and also suggested that he could relocate within India.  The delegate suggested that the applicant’s delay in applying for refugee status reflected on the genuineness of his fears. 

6. On appeal, the applicant attended a hearing of the Tribunal held on 2 January 2008. He was subsequently sent the tapes of the hearing, but has not submitted a transcript to the Court. The Tribunal gave in its statement of reasons a very detailed account of what appears to have been a lengthy hearing. In the course of the hearing, the applicant added to his claimed history, and was closely questioned about it. The Tribunal put to the applicant a number of concerns, and subsequently sent him two letters inviting his comments on these matters.

7. In response, the applicant sought to explain the difficulties and also submitted a medical certificate confirming his wife’s hospitalisation in May 2007. He also submitted a statement from a person distantly related to the applicant, purporting to confirm his history of persecution by K.

8. In a decision handed down on 21 February 2008, the Tribunal affirmed the delegate’s decision.  In its statement of reasons it carefully set out all of the applicant’s claims and its correspondence with him.  Under the heading “Findings and Reasons”, it explained a general finding about the applicant’s credibility: 

   The Tribunal found the applicant to be completely lacking in credibility.  The applicant’s evidence was vague, he was often unresponsive and on many occasions the Tribunal had to repeat its questions several times to elicit a response from the applicant.  There were significant inconsistencies in his oral evidence and his written claims and he was unable to respond to many of the Tribunal’s questions which were of significance to his claims.  The Tribunal acknowledges the applicant’s claim that he was physically harmed, that he was upset about his family’s disappearance, that he could not sleep or eat and that it had affected him psychologically.  The Tribunal finds that these matters had not affected the applicant’s ability to give evidence, nor caused him to be evasive in giving evidence.  This is because the applicant was able to give evidence with respect to some matters and after being directed by the Tribunal.  He had not presented any medical evidence to support the claim that he was prevented or unable to give evidence. 

9. The Tribunal then identified five specific areas where the Tribunal had concerns. These included the applicant’s evasive responses to its attempts to clarify how the Tsunami committee was formed; his failure in his original statement to put forward a significant claim that he and other members of the committee had been assaulted in February 2005, and other aspects which were not mentioned; some inconsistencies in relation to dates; and implausibility in his story that he had been approaching K over a period when he also claimed to have been in hiding.

10. The Tribunal acknowledged the medical evidence about the applicant’s wife’s medical treatment, and that the applicant had showed the Tribunal scars indicating a burn mark on his calf and what was claimed to be the mark of a knife wound.  However, the Tribunal said that it was not satisfied that these had been acquired in the manner claimed. 

11. It referred to the statement from the witness in India, but said that it could not ascertain that person’s personal knowledge nor verify his identity.  It said: “in these circumstances the Tribunal gives no weight to the statement” by the witness. 

12. The Tribunal said that, while it accepted that the applicant may have participated in the work of a committee and assisted in the distribution of funds and goods to the victims of the tsunami, it did not accept that he had come to the adverse attention of the leader of the committee who had attempted to appropriate the funds, nor that he had been targeted by the leader because he confronted him. It did not accept any of the claims of threat, assault or other harm which the applicant had made. It also referred to his foreign travel, and concluded that this showed that he did not have a genuine fear of persecution while in India.

13. The Tribunal found that there was no real chance that the applicant would face persecution for any Convention reason if he were to return to India, and it found that he had no well‑founded fear of persecution for a Convention reason. 

14. The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for reconsideration. 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 should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

15. The applicant’s application contains four grounds: 

    1.That the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims; because I was being questioned without a break and felt stressed and intimidated. 

    2.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction. 

    Particular of Grounds 

    a.The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Mr. K and Hindu extremist party BJP. 

    b.In relation to above the Tribunal did not consider the applicant’s claim that he was targeted by K’s men and attacked mercilessly. 

    c.Therefore the applicant submit that the Tribunal failed to analyse properly future harm the applicant’s may face if he return to India.  Hence, due to this failure, the Tribunal had commoted a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim. 

    3.The Tribunal exceeds its jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

    4.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.  The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa. 

16. The first ground is unexplained by any submissions of the applicant.  I am unable to identify any “integers” which were contained in material given to the Tribunal which it did not address. 

17. There is no evidence that the applicant failed to put forward his case in any respect as a result of “being questioned without a break and felt stressed and intimidated”. In particular, the transcript of the hearing has not been presented to the Court, and there is no medical or other corroboration of his state of mind or health at the hearing. On the Tribunal’s description, he was given more than ample opportunities to persuade the Tribunal as to the truth of his claims.

18. The second ground presents an argument that the Tribunal did not correctly consider the applicant’s evidence, but it appears merely to argue with the merits of a conclusion which was open to the Tribunal. 

19. The third ground makes an unparticularised and rolled up allegation of jurisdictional error, which I am unable to give particular substance to. 

20. The fourth ground contends that the Tribunal “did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome”. I do not understand this contention. The Tribunal’s decision did not rely upon any general information, but turned upon its assessment of the credibility of the applicant in relation to his claimed personal history.

21. The applicant’s amended application contains seven grounds, (numbering the last two paragraphs 6 and 7): 

    1.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 applicant the Tribunal was in fact, placing too high an onus of proof on the applicant’s and failed to give the applicant the benefit of the doubt. 

    2.The second respondent in making its determination failed to record its decision in accordance with Section 430 of the Migration Act.

    Particular: 

    a.The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant. 

    b.The Tribunal however found that any persecution suffered was not for any Convention reason but did not give reasons for the finding. 

    c.The Tribunal failed to record the material facts for the reasons referred to above. 

    3.The Tribunal failed to determine the chances of the applicant being persecuted should he return to India. 

    4.The Tribunal member did not use the country information while making the decision. 

    5.The second respondent denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters. 

    6.Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India. 

    7.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 applicant claim. 

22. I can find no evidence that the Tribunal applied a wrong test, in particular as to the “real chance” test for assessing the risk of future persecution. It was the Tribunal’s duty to consider whether it was satisfied as to the history presented to it, and it was entitled to affirm the delegate’s decision if it was not satisfied that the applicant’s fears of persecution were well‑founded. In the absence of doubts about its rejection of his claimed history of persecution, it was not required to assess alternative hypotheses (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220).

23. The Tribunal did not require “independent evidence of the fact”, but properly assessed the applicant’s claims by reference to the credibility of his oral and written statements. In view of its credibility finding, it was open to the Tribunal to reject the probative value of the witness statement from India (see WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70]).

24. The second ground probably does not assert an error which is jurisdictional in relation to the Tribunal’s substantive decision. I accept that any failure to make findings required under s.430 of the Migration Act 1958 (Cth) could provide evidence of a failure of jurisdiction (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323). However, there is no substance in the arguments presented in this ground since, in fact, the Tribunal did make clear and sufficient findings, addressing the applicant’s claims to have been persecuted. It rejected them and gave reasons for that conclusion.

25. Similarly in relation to the third ground, the Tribunal did determine the chance of the applicant being persecuted should he return to India, and it explained reasons which were open to it for concluding that there was “no real chance that the applicant will face persecution for any Convention reason if he were to return to India now or in the reasonably foreseeable future”. 

26. In relation to the fourth ground, as I have indicated above, the Tribunal did not use any general country information to arrive at its conclusions about the applicant’s claims. No such information was presented by the applicant to corroborate his claimed history, and there was no obligation on the Tribunal itself to engage in researches into general country information if it felt able to assess the applicant’s history based upon its inherent merits.

27. In relation to the fifth ground, I can find no error of the type identified in the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, which appears to be the gist of this ground. No particular has been given of the “certain aspects” which involved the Tribunal arriving at conclusions which were “not obviously open on the known material”. On the Tribunal’s description of the hearing, it appears to have been very thorough in presenting all the general and specific concerns it had, in particular, about the credibility of the applicant’s evidence. These concerns were also put to the applicant for written comment. I am not persuaded that there was any denial of procedural fairness to the applicant in the present case.

28. In relation to the sixth ground, I have above addressed this point under Ground 1.  Similarly in relation to Ground 7. As I have explained, I do not accept that the Tribunal made any error in relation to the “real chance” test.

29. The applicant attended today, after the hearing was postponed at his request to the afternoon. He sought an adjournment to allow him an opportunity to present more documents from India about his claims. However, as I have told him, such evidence would not advance his case in this Court. Similarly, his concerns that his family is still missing, and that he continues to fear political persecution if he returns to India, are not matters which can establish jurisdictional error on the part of the Tribunal.

30. On all of the material before me, I am unable to identify jurisdictional error affecting the decision of the Tribunal. I must therefore dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  3 July 2008