SZMFH v Minister for Immigration
[2008] FMCA 1547
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1547 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 SZMDJ v Minister for Immigration & Anor [2008] FMCA 1298 |
| Applicant: | SZMFH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1122 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 31 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1122 of 2008
| SZMFH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 8 April 2008 affirming a decision of a delegate of the first respondent not to grant the application a protection visa.
The applicant, a citizen of India, arrived in Australia in August 2007 and applied for a protection visa in October 2007. In a statement accompanying his protection visa application he claimed that in 1995 he had become interested in an organisation called the Jihad Committee, that he had been made Taluk Secretary of the Committee, but that after one year he lost interest and in 1997 he relinquished his post and resigned from the Committee. He claimed that in 1998 the Jihad Committee leader was murdered by Hindu terrorists. Subsequently the Jihad Committee was “banned” by the Indian Government. Despite the fact that he had resigned from his Jihad Committee position the Tamil Nadu Police had arrested him. The applicant claimed that he was imprisoned for five years before he could prove to the government and police that he had already quit the secretary post.
The applicant claimed that thereafter while he was helping his father and uncle in their business, Hindu fanatics had again come to the shop and started to “give trouble,” claiming that he was a member of the Jihad Committee. This was made worse by the fact that Hindu fanatics put a small Ganesh statue and built a mini temple in front of his house. When he complained the police, being Hindus, refused to accept his complaint. Also a person from the Hindu Munnani had pressured the police not to accept his First Information Report.
The applicant claimed that subsequently Hindu fanatics, BJP and RSS people came to his house and attacked everyone in the house and that the ringleader warned them they must leave the house and disappear within a week or the family would be wiped out. He claimed that thereafter the family moved to various places in India, but were warned and faced the same threats and dangers from Hindu fanatics. He claimed that while in Mumbai the police became suspicious and took him into custody for eight days and subsequently warned him to leave and that after a religious clash in another town a Hindu policeman wanted to lodge a false complaint and hatched a conspiracy to murder them. He claimed that he and his uncle moved again, but Hindu fanatics followed them and his uncle was attacked.
In 2005 the applicant travelled to Bangkok where a relative was involved in the gemstone business. He was not able to contact his parents. In 2007 he returned to Tamil Nadu but could not trace them. He returned to Bangkok but “since he could not stay for a long time at Bangkok” he came to Australia.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal.
The Tribunal wrote to the applicant on 24 January 2008 under s.424A of the Migration Act 1958 (Cth) inviting his comment on information in his protection visa application and on information as to the time of grant of his visa and arrival in Australia and application for a visa. He was also invited to provide certain additional information. The applicant responded to the s.424A letter and provided additional information. He was invited to and attended a Tribunal hearing.
In its reasons for decision the Tribunal set out at length the applicant's claims in connection with his protection visa application, his response to the s.424A letter and additional information and detailed what occurred in the Tribunal hearing, a matter to which I will return.
The Tribunal found that the applicant was a witness who “completely lacked credibility.” It found that he was evasive in his evidence and that his evidence contained significant inconsistencies. The Tribunal addressed the applicant's claim at the Tribunal hearing that he was under a lot of pressure, was nervous and tense and suffered from memory loss. However it was not satisfied that the inconsistencies in his evidence arose as a result of claimed pressure, nervousness, tension or memory loss.
The Tribunal had regard to the fact that the applicant’s claim of memory loss was raised for the first time in oral evidence and only after certain inconsistencies had been brought to his attention and that the applicant had not presented any medical evidence prior to the hearing or throughout the review on these issues. The applicant was given the opportunity after the hearing to provide medical evidence in relation to his claimed condition and memory loss but did not do so.
The Tribunal was also concerned by the fact that the applicant's claimed memory loss and tension affected only some aspects of his evidence at the hearing and not others. It had regard to the fact that the applicant had stated in oral evidence that his written statements were more accurate because he was able to think about these matters, but there were also inconsistencies in his written evidence. These matters caused the Tribunal to reject the claim that the inconsistencies arose as a result of any medical condition, nervousness or tension suffered by the applicant. It found such inconsistencies were reflective of the applicant's credibility.
The Tribunal then set out its particular concerns about the applicant's evidence. It found his evidence about involvement with the Jihad Committee to be vague and unconvincing in particular respects, including that he could not correctly recall the year he joined the Committee or describe with any degree of exactitude the work he performed and gave confused evidence, which it described, about how he was promoted to the position of Area Secretary given his limited and brief involvement with the Committee.
The Tribunal had regard to the fact that the applicant failed to mention in his initial statement a subsequent claim at the hearing that he was involved in conversions. The Tribunal did not accept his explanation that he forgot this evidence, given its significance. Nor was he able to explain to the satisfaction of the Tribunal why he would be attacked by Hindus only after he left the party. It had regard to the inconsistent evidence in relation to his employment and his situation in Thailand (as to whether he was working in a gem company or staying at a relative's home cooking) and the inconsistent information in his written and oral evidence about his places of residence in India after 2003, which it detailed, in particular as to when he moved after his claimed release from gaol. The applicant was said to have provided inconsistent oral evidence about the time he spent at home after his release from gaol.
The Tribunal was also concerned with the applicant's delay in departing from India and his conduct since departure. It did not accept that his preference to move from place to place (despite claiming that he was discovered in each location) rather than departing from India, was consistent with the claimed harassment and threats. It had regard to his claimed return to India in 2007 and his confused evidence about his living arrangements thereafter, being of the view that his return to and remaining in India for several weeks in 2007 (even to search for his parents) indicated that he did not have a genuine fear of persecution. This in turn was said to indicate that he was untruthful in his evidence about being continuously harassed by fanatics in India despite moving from place to place. Nor had he satisfactorily explained why he delayed his application for a protection visa.
The Tribunal found that the combination of these matters caused it to find that the applicant had not been honest in his evidence, which it rejected. Specifically it rejected the applicant’s claim that he was ever involved with the Jihad Committee or any other religious or political organisation in India, that he performed social or other work for such an organisation or independently, that he assisted the poor or youths or that he was involved with conversions. It rejected his claim that he came to the attention of other organisations or religious groups as a result of his work, that he or his family were found in different areas and attacked on several occasions and threatened as a result of his work or for any other Convention reason or that he was arrested or imprisoned for five years. Nor did it accept that Hindu worship outside his home caused “big problems” for the applicant as claimed or that the police refused to accept a complaint from him. It rejected his claim that he and his family relocated to different places in India to avoid harm or that he left India in 2005 to avoid such harm. It did not accept that he was harassed by the police in Mumbai or elsewhere, that there was a conspiracy to murder or lodge false complaints or that his uncle was attacked. As it rejected his claims, the Tribunal found there was no real chance that the applicant would face persecution for any Convention reason if he were to return to India now or in the reasonably foreseeable future.
The applicant sought review by application filed in this Court on 5 May 2008.
The first ground in the application is that the Tribunal “did not take into account certain relevant considerations or ‘integers’ central to the applicant's claims” and continues “because I was spent (sic) long time being questioned without a break and felt stressed and intimidated.” The second ground is that the Tribunal “thereby failed to carry out its review function and exercise its jurisdiction.” The particulars to the grounds are that the Tribunal did not consider that the applicant had been “under immense and intimidating pressure from fanatic Hindus and Indian police” or his claim that he was arrested and imprisoned and that it therefore failed to analyse properly the future harm he may face and to apply the real chance test.
There are a number of aspects to these grounds of review. The first takes issue with the conduct of the Tribunal hearing. In oral submissions the applicant contended that he was under pressure and nervous stress at the hearing and that the break allowed by the Tribunal was insufficient. In concluding submissions he took issue with the fact that the Tribunal had not permitted him to refer to notes in responding to its questions.
There is no transcript of the Tribunal hearing before the Court, notwithstanding that a order was made at the directions hearing that any transcript relied upon be filed by a date in July 2008. The only evidence before the Court of what occurred in the Tribunal hearing is the information contained in the Court Book, consisting of the Tribunal hearing record and the Tribunal reasons for decision. It is apparent from the Tribunal hearing record (and not disputed by the applicant), that the Tribunal hearing did include a break. The hearing record states that the hearing started at 8.50am on 25 February 2008 and ended at 11.44am, and that there was an adjournment from 10.34am to 10.45am. Of itself, the fact that there was only one break in the hearing for 11 minutes does not establish any unfairness or that the applicant was not able to take advantage of the hearing required under s.425 of the Migration Act 1958 (Cth).
The Tribunal recorded in its reasons for decision that at the start of the hearing the applicant said that he was nervous and asked if he could rely on notes in response to Tribunal questions. The Tribunal noted that it had read the applicant's statements and wanted to hear the applicant's own evidence and indicated that it preferred if he did not rely on his notes in giving evidence.
The fact that the Tribunal preferred the applicant to give oral evidence is not of itself such as to indicate that there was any failure by the Tribunal to comply with s.425 of the Migration Act 1958 or any lack of procedural fairness in the conduct of the hearing, having regard to the evidence as to what occurred in the hearing. The Tribunal recorded that the applicant made this request in the context of indicating that he was nervous. He elaborated his claim of nervousness after he was asked a question as to how he could be confused about his employment in Bangkok and whether he worked as a cook or in a gem business. The Tribunal recorded that the applicant claimed he could not answer because he was under a lot of tension. The Tribunal referred to the fact that his claim about working for a gem company had been made only a week earlier in response to the s.424A letter.
Subsequently, when asked when the Jihad Committee was formed and about the time of his involvement and when he left, the applicant gave inconsistent evidence, claiming he joined in 1997 whereas in his protection visa application he claimed he joined in 1995. When asked why he could not remember when he joined and when he had given up, he said he suffered from a loss of memory and was unable to state the years because of the tension he was under. He claimed he had had time when writing his statement and remembered.
The Tribunal then asked the applicant if he had sought medical help about his loss of memory. He said he did not do anything; he kept quietly hoping it would go away. The Tribunal went on to refer to other inconsistent evidence that the applicant had given, which he again attributed to loss of memory. The Tribunal stated that it had pointed out that in the absence of medical evidence and given that the applicant had first mentioned this problem in oral evidence, it needed to determine whether he was telling the truth and was a credible witness.
Further issues were raised at the hearing about inconsistencies in the applicant’s evidence. The applicant attributed another aspect of difficulties he had with his evidence, in particular a claim that he mentioned for the first time of his involvement in religious conversions, to the fact that had previously forgotten it because he was suffering from memory loss. The Tribunal pointed out that his memory loss seemed to be selective.
Later in his evidence, when the applicant was unable to remember the month in which he was arrested, he attributed that to memory loss. The Tribunal noted that unless it had medical evidence it had difficulty accepting this claim. The applicant said that in order to let the Tribunal believe him he would present evidence afterwards. The Tribunal noted that if he intended to see a doctor it would refer him to Health Services Australia (HSA) and that if he did see a doctor it would give more weight to the evidence of an HSA doctor.
At a later stage in the hearing, after the Tribunal raised other inconsistencies with the applicant, he said he was telling the truth, that his mental state was adversely affected and that a medical examination could be conducted. Towards the end of the hearing, when the applicant reiterated there were some mistakes due to his memory loss and attention, the Tribunal recorded that it advised him pursuant to s.424AA of the Act it had information which may, subject to his comments, be a reason, or part of the reason, for affirming the decision under review.
The Tribunal recorded that in the hearing it described five specific instances of inconsistent evidence and failure in the written statement to mention claims raised for the first time at the hearing. It specified that these matters were in addition to the information contained in the s.424A letter. It explained the relevance of this information to a conclusion as to the credibility or honesty of the applicant's evidence and the possible rejection of his claims. It noted that the applicant could provide comments orally or in writing. The applicant was recorded as saying that he understood the information and its relevance and wished to respond in writing in a month. The Tribunal stated that if the applicant was given the adverse information in writing he would be given 14 days and that it considered that this was an adequate time to respond and the applicant agreed.
The Tribunal also asked the applicant if he wished to obtain medical evidence. He said he was willing to do so and the Tribunal indicated a preference that he see a doctor from HSA and reiterated that in the absence of medical evidence it had difficulty accepting that he suffered from memory loss or that inconsistencies arose as a result of the memory loss. The applicant said he would get a medical certificate and he would respond within 14 days.
Following the hearing the Tribunal wrote to the applicant on the date of the hearing, referring to the fact that he had indicated he intended to provide a medical certificate outlining the circumstances of his stated medical condition of memory loss and indicating that it preferred a certificate from HSA, although it would consider any evidence he submitted. It enclosed contact details for HSA and indicated that information should be provided within 14 days.
There are two file notes in the Court Book of what appear to be conversations between Tribunal officers and the applicant as to whether the applicant would receive a request for further information in writing. The Tribunal officer confirmed through the intermediary of a telephone interpretation service that because the information was put to the applicant at the hearing it would not be put to him in writing, but he would have to provide an answer in writing to the Tribunal as agreed at the hearing. He said that he understood.
No medical certificate, response in writing to the issues raised at the hearing or any other further information was provided to the Tribunal by the applicant.
On the material before the Court, the applicant's concern expressed in the application and in oral submissions about the conduct of the hearing is not such as to establish a jurisdictional error. In particular, there is no evidence before the Court to establish that the applicant was unable to participate in the hearing such that he was unable to take advantage of the opportunity to present arguments and give evidence in relation to the issues arising in relation to the decision under review or such that it could be said that there was not a proper invitation under s.425 or a denial of procedural fairness in the manner in which the hearing was conducted.
The concerns that the applicant raises about his state of mind are not such as to establish jurisdictional error. The applicant did not provide any medical evidence to the Tribunal in substantiation of the claims that he made about his medical condition. The Tribunal nonetheless considered his claims that inconsistencies were attributable to memory loss, pressure or tension but rejected that contention on bases which included the fact that while the applicant claimed he had had more time to make a written statement, the written statement he had made also contained inconsistencies.
No jurisdictional error is established arising out of the manner in which the hearing was conducted or based on the claims that the applicant made at the hearing about the impact of memory loss, stress or pressure that he experienced. There is nothing in the Tribunal account of what occurred at the hearing to suggest in any way that the concerns that the applicant raised were such as to mean that he was not able to participate in the hearing. The Tribunal noted the memory loss that he claimed that he experienced seemed to be selective, as he did describe some claims in detail and yet left out significant aspects of particular claims or made inconsistent claims in relation to particular aspects of his claims and when those difficulties were raised by the Tribunal relied on a claim of memory loss. I also note that there is nothing to indicate that the hearing was of excessive length, that there was a break and that the applicant had the assistance of an interpreter in the conduct of the hearing.
The next ground is a claim that the Tribunal failed to consider certain claims that the applicant raised. The first was a claim that he had been under pressure from fanatic Hindus and police. This ground is not made out.
It is apparent from the Tribunal reasons for decision that it not only understood and recorded the claims made by the applicant in this respect, both in writing and orally, but moreover that it considered such claims in its findings and reasons. As indicated, the Tribunal set out at length the claims made by the applicant in the protection visa application, including various claims of pressure from what are described as Hindu fanatics, his claims in relation to the police response to his complaints and also his claims about police threats. There was also a discussion at the Tribunal hearing of the applicant's claims in relation to attacks and threats by Hindus and in relation to the conduct of the police, including his claim that while he was in the Jihad Committee there were no problems, but that the problems began after he had ceased his involvement. The Tribunal also recorded that the applicant made a fresh claim about an attack by Hindus after a statue was erected at the front of his property and that the police refused to accept a complaint. There was a discussion of this at the Tribunal hearing.
However, as set out above, the Tribunal rejected the applicant's claims as untrue. Specifically, after setting out inconsistencies in his claims, it rejected his claim that he came to the attention of other organisations or religious groups as a result of his work. In the context of the Tribunal reasons for decision this is clearly a reference to his claims about fanatic Hindus as well as his claims about the RSS and other associated organisations. The Tribunal also considered, but rejected, his claims in relation to the police, having rejected the claims that he came to the attention of other organisations and also rejecting his claims that he was arrested and imprisoned for five years, that the police refused to accept a complaint or harassed him, that there was a conspiracy to murder him or lodge false complaints or that his uncle was attacked.
The Tribunal considered the central claims made by the applicant, including the claims he contends were excluded from its consideration. No jurisdictional error is established on this basis.
In these circumstances there is no basis for the applicant's claim that the Tribunal failed to analyse properly future harm he may face or to carry out the real chance test. The Tribunal properly noted and summarised the existence of the applicable test under the Refugees Convention at the commencement of its reasons, albeit in standard form (as to which see Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12 at [20] per French J). Its findings are clear. Having rejected the applicant's claims about past events, it found there was no real chance that he would face persecution for any Convention reason if he were to return to India now or in the reasonable foreseeable future. In circumstances in which it rejected all of the applicant's claims as set out above, it has not been established that it failed to assess properly or apply the real chance test in a manner constituting jurisdictional error or more generally that it failed to carry out its review function and thereby exercise its jurisdiction. No jurisdictional error is established on any of the bases contended for in the application for review.
As the applicant is self-represented, I raised with the solicitor for the first respondent the manner in which the Tribunal raised with the applicant information which it considered may be the reason or part of the reason for affirming the decision under review, the issue of the possibility of future medical evidence and whether the circumstances in which those matters were addressed gave rise to any jurisdictional error.
In the Tribunal reasons for decision, and again I note that this is the only evidence of what occurred at the hearing, the Tribunal indicated that it raised with the applicant a number of matters under s.424AA of the Migration Act and that when the applicant indicated he wished to respond in writing it gave him 14 days to respond, but that he did not do so.
While at first glance it may appear that it was not entirely clear whether the Tribunal was advising that the applicant would be given adverse information in writing after the hearing if he sought further time to respond, reading the Tribunal reasons for decision fairly and as a whole it is apparent that the Tribunal was indicating to the applicant that it was advising him of the relevant information, that he could provide comments or a response in writing or orally and that if he wished to respond in writing he would be given 14 days, which the Tribunal considered was an appropriate time, as it would be were he to be given information in writing. In other words it was not advising him that it would be writing to him. That was clarified by the telephone conversations between the applicant and a Tribunal officer who confirmed that because the information was put at the hearing it would not be put to him in writing. It was not obliged by s.424AA to put the information to the applicant in writing given his acknowledgement that he understood (see s.424AA(b)(i). Rather it was empowered to allow him additional time to respond (s.424AA(b)(iv)).
I note that the applicant has not suggested in the hearing today, or in his application, that there was any confusion in this respect or that the Tribunal in any way erred. Rather I considered this matter out of an abundance of caution.
I note that, when considering whether the Tribunal met its obligations under s.424AA it is now established (see SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330, SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270, and SZMDJ v Minister for Immigration & Anor [2008] FMCA 1298) that s.424AA does not itself impose any obligation on the Tribunal, but rather enables the Tribunal, if it chooses to do so, to give oral particulars of adverse information to an application at a hearing that may otherwise need to be given in writing under s.424A. If the Tribunal chooses to do so but fails to comply with the requirements of s.424AA(b) as Gilmour J stated in SZLWI at [19] “… the consequence is not that it falls into jurisdictional error” but rather that s.424A(2A), which exempts the Tribunal from the obligation to comply with s.424A where it has given clear particulars of the information and invited the applicant to comment under s.424AA, would not apply.
The information before the Court is not such as to establish that the Tribunal failed to comply with the obligations under s.424AA. Indeed, insofar as the Tribunal raised matters with the applicant consisting of inconsistencies given in his evidence before the Tribunal and to the Department, on current authorities this would not appear to be such as to give rise to any obligation under s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). More particularly, the Tribunal account of what occurred in the Tribunal hearing indicates that it adequately performed the obligations prescribed in s.424AA(b)(ii) of the Migration Act and that the applicant was given additional time to comment in writing, but did not do so.
No jurisdictional error is apparent in the manner in which the Tribunal recorded that it put to the applicant matters for comment in the Tribunal hearing. The material before the Court is not such as to establish that there was a failure in any way to comply with s.424A of the Act. The Tribunal had put certain matters to the applicant under s.424A prior to the Tribunal hearing to which he responded and put other matters to him in the hearing pursuant to s.424AA.
Finally, I note that while the applicant had the opportunity after the Tribunal hearing to obtain medical evidence, the circumstances are not such as to indicate that this was pursuant to an invitation to give additional information such as to give rise to the operation of s.424 of the Act. Rather, when the Tribunal indicated the difficulties of a claim about memory loss unsupported by medical evidence, the applicant said that he would present evidence. The Tribunal indicated that its preference would be for evidence from HSA medical practitioner, although it would consider any evidence put before it by the applicant. That is consistent with the letter that the Tribunal wrote to the applicant on 25 February 2008 referring to the applicant's indication that he intended to provide a medical certificate and indicating that the requested information should be supplied within 14 days.
Hence no issue in terms of compliance with the requirements of the Migration Act arises from the circumstances in which this issue was canvassed or from what occurred after the hearing.
As no jurisdictional error has been established, the application must be dismissed. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the first respondent seeks that he pay the costs of these proceedings in the sum of $3,400. The applicant told the Court that he had to have surgery and has no money. However the applicant's lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 November 2008
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