SZMOR v Minister for Immigration & Anor - [2009] FMCA 468

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 468

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.422B, 424A, 425

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

SZMOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1977 of 2008

Judgment of:

Barnes FM

Hearing date:

30 April 2009

Delivered at:

Sydney

Delivered on:

30 April 2009

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 $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1977 of 2008

SZMOR

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 signed on 11 June 2008 and handed down on 3 July 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in November 2007 and applied for a protection visa in January 2008. His application was refused and he sought review by the Tribunal. The Tribunal invited the applicant to attend a Tribunal hearing. He did so. After the hearing the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) putting to him a number of matters, in particular inconsistencies between the claims in his protection visa application and his evidence at the hearing and information, or the absence of information, gleaned from internet searches of the applicant's name on relevant Indian websites. The Tribunal invited the applicant to comment on that information and independent information regarding organisations in India, in particular the ISS and the PDP, or People's Democratic Party by 5 June 2008. On 4 June 2008 the applicant requested an extension of time to provide comments. The Tribunal wrote to the applicant by letter of that date advising that the Tribunal member had considered the request but decided not to grant an extension of time. The letter advised that the Tribunal was willing to take into consideration any further submissions received prior to the date of handing down of the decision.
In its reasons for decision the Tribunal recorded that it considered that the s.424A letter primarily raised inconsistencies between the applicant’s evidence at the hearing and in his protection visa application and that these were sources of information with which the applicant would be expected to be familiar. It referred to the fact that at the hearing it had explained to the applicant it would write to him about such matters. It recorded that the applicant was advised of the decision in relation to the extension of time by telephone on 4 June 2008 as well as by letter.
The Tribunal outlined in detail the basis for the applicant's claims to fear persecution. There were a number of aspects to this claim but in essence they related to his claimed support of the People's Democratic Party (the PDP) and the fact that he was a Muslim.
The Tribunal considered the fact that while the applicant had spent a number of years residing in the United Arab Emirates (UAE), his resident's permit for the UAE would become invalid if he resided outside the UAE for more than six months. As that was the case, the Tribunal found that the applicant did not have a legally enforceable right to enter and reside in the UAE. Thus the question of whether he had taken all possible steps to avail himself of any such right to enter and reside in the UAE did not arise and he was not excluded from Australia's protection obligations under s.36(3) of the Migration Act on the basis of his previous residence in the UAE. Hence the Tribunal assessed the applicant’s claims in respect of India.
The Tribunal accepted that the applicant was a Muslim who had been involved in providing assistance to the Islamic organisation “Tablic Jamath” (Tabligh Jamaat) in the period prior to 1990. However it had serious concerns about the credibility of his evidence regarding his involvement in the PDP and his personal circumstances and the events in India which led to his departure and which formed the basis of his protection claims. It detailed the basis for its concerns, finding ultimately that the applicant had not given a truthful account of his personal circumstances and experiences in relation to his involvement in the PDP, the problems he experienced from the authorities and from Hindu organisations such as the RSS, BJP and VHP, the reasons he left India and the reasons he claimed to fear serious harm if he returned.
It found that he had given inconsistent and implausible evidence about the circumstances in which he met and came to know the ISS and PDP leader Abdul Nasser Madani and the circumstances of his involvement in the PDP. It detailed inconsistencies in his evidence and found in light of country information about the formation and disbanding of political parties in India, that his claim to have heard about the PDP and its work in the period 1990 – 1992 was highly implausible given that the information confirmed that the PDP was only established in December 1992. The Tribunal also found it implausible that the applicant had the level of involvement he claimed in the PDP or the Islamic Sevak Sangh (ISS). It found it highly implausible that he would not have been more closely involved with Madani in the period prior to formation of the PDP and in the formation of the PDP if he had been a main leader of the ISS as claimed. Hence it had significant doubts about his claim that he was actively involved in the PDP at the level he claimed, in particular that he was involved in setting up a local office or branch of the PDP in 1992 or that he was involved in any other political organisation (such as the ISS) at a senior or any other level.
The Tribunal also had serious doubts that the applicant was involved in PDP campaigning on behalf of candidates supported by the PDP and regular involvement in the local PDP. It found he had given vague evidence and had been unable to give more precise details about campaigns with which he was involved. It found that this was not consistent with his claim to have been active in the PDP’s support for other party candidates in various election campaigns. It did not accept that his inability to give details was reasonably explained by the volatile political situation in Kerala and the fact that governments did not always complete their terms.
The Tribunal also had regard to the fact that the applicant demonstrated only a vague knowledge about the 1998 Coimbatore bombings which had led to the arrest of the PDP leader Nasser Madani and was uncertain about significant aspects of the bombing. It found his level of knowledge was not consistent with his claim of active involvement in PDP work over a number of years. It considered that if he had been actively involved in the PDP as claimed, he would reasonably have demonstrated more detailed knowledge of the groups charged with involvement in the bombing, particularly as country information indicated that such groups had a reasonably strong profile.
The Tribunal also found that there were significant inconsistencies in the applicant's written and oral evidence concerning his claim that he was implicated in the bombing, detained by the police and that a bribe had to be paid to obtain his release from detention. It found his evidence at the hearing on this incident was confused and inconsistent in respects it detailed. The Tribunal found it highly implausible that the applicant would not be able to recall when such a significant incident took place. The Tribunal also found it highly improbable that if the applicant had been implicated in the bombings as claimed he would have been able to travel in and out of India throughout the period from 1998 when he worked in the UAE without the authorities taking action against him. It considered, but did not accept as plausible, his explanation in this respect. It also found it implausible that he would not be aware of the nature of any outstanding charges against him, particularly as the charges against Madani had been dropped and Madani had been released. The Tribunal found that the applicant's numerous returns to India between 1998 and 2007 were not consistent with his claim of having a well‑founded fear of persecution.
The Tribunal also found that the applicant had given inconsistent evidence regarding the source of the problems he would face if he returned to India, in particular in relation to his claim to fear harm from groups other than the police, such as the RSS, VHP or the BJP. It noted that he had not provided any details in his protection visa application about his subsequent claims at the hearing about threats and accusations he experienced from Hindu activists prior to the 1998 bombings and the connection between these and the problems he experienced from the authorities. It found his failure to provide details of such significant issues was adverse to his claim that he was specifically threatened or targeted by Hindu activists. It also had concern in relation to his evidence at the hearing in this respect and his significant hesitation about the timing of an alleged attempt by RSS members to run him over in a vehicle. On this basis it expressed doubts that he experienced problems prior to 1998 as a result of or from such Hindu groups because of his political activity or that he was threatened as claimed and hence would be specifically targeted.
As indicated, based on these concerns the Tribunal did not accept that the applicant had given a truthful account and therefore did not accept that he was actively involved in the PDP or organisations such as the ISS at any stage. Nor did it accept that he had experienced problems from the authorities as a result, including implication in any way in the 1998 bombings or that any charges or political action were pending. Hence it did not accept that he was detained by the authorities because of being implicated in such bombings or other political activity, that he had to pay a bribe to be released or that he had to go into hiding after Nasser Madani was arrested in 1998 in connection with the bombings and left India to work in the UAE because of problems with the authorities arising from his actual or perceived political activity. Given these findings, the Tribunal did not accept that the applicant was actively involved in the PDP or any other political party while working in the UAE or that he came to the adverse attention of the authorities as a result. Nor did it accept that he had suffered harm from or been specifically targeted or threatened by Hindu or Hindu-based organisations or that such organisations had used their influence with the authorities to have action taken against him.
The Tribunal did accept on the basis of independent evidence that the political situation in Kerala was and had been volatile for a number of years. It also accepted that the applicant may have sympathised with and generally supported the objectives of the PDP. However the Tribunal did not accept that he had been involved in the PDP or other political organisation at a level such that he had come to the adverse attention of the authorities or Hindu based organisations. Given these findings, it also did not accept that the applicant would undertake such political activity in the future if he returned to India or that he would be imputed as doing so by the authorities or Hindu-based organisations.
The Tribunal then considered the applicant's broader claims, based on his Muslim religion, that the increasing influence of Hindu political parties and organisations was causing problems for him as a Muslim. It had regard to independent information in relation to the situation in Kerala and the possibility of communal tension and violence but also to the fact that it had found that the applicant had not given credible evidence regarding his political activity and problems he had experienced from the authorities or Hindu-based organisations as a result. It did not accept that he had been specifically targeted by the authorities or by Hindu political or fundamentalist groups for reasons of his Muslim religion. Nor did it accept, based on country information, that any broader concerns the applicant may have about the volatile political and communal situation in Kerala gave rise to a well‑founded fear of persecution for reason of actual or imputed political opinion or religion or for any other Convention reason. In particular, on the basis of country information, it found that the risk of serious harm to the applicant as a member of the Muslim minority in Kerala was remote. The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for any Convention reason if he returned to India now or in the reasonably foreseeable future.
The applicant sought review by application filed in this Court on 31 July 2008. He relies on an amended application filed on 27 November 2008. He did not file written submissions. He made oral submissions in which he took issue with the merits of the Tribunal decision. As I endeavoured to explain to the applicant, merits review is not available in this Court. He also took issue with the Tribunal findings about his involvement with the PDP and told the Court that he could give evidence that he worked in the PDP. Again, merits review is not available in this Court and the applicant's contentions do not establish that the Tribunal fell into jurisdictional error on the material before it at the time of its decision.
The applicant claimed generally that he could not recall some of the dates about incidents he complained of when he talked to the Tribunal, which he attributed to his “mental incapacity”. There is nothing in the material before the Court to indicate that any issue of mental incapacity was raised with the Tribunal. Insofar as the applicant is endeavouring now to provide an explanation for his failure to recall particular dates, this does not establish jurisdictional error on the evidence before the Court.
The grounds in the amended application are generally expressed. The first is that it was open to the Tribunal to find that the applicant was a refugee and that it failed to give him the benefit of the doubt in circumstances where it entertained the possibility that his claims were plausible. However, contrary to the applicant's contentions, it is clear from the Tribunal's reasons for decision that it was strongly of the opinion not only that the applicant's claims were not plausible, but also that the applicant had not given a truthful account of his personal circumstances and experiences in India in relation to his involvement in the PDP, the problems he experienced from the authorities and Hindu organisations, the reasons he left India and the reasons he feared serious harm if he returned. The Tribunal discussed its concerns about the plausibility of various aspects of his claims in the course of reaching that conclusion. It did not simply find that aspects of the claims were implausible. It gave reasons for its concerns about implausibilities and inconsistencies, the doubts that it had about the evidence and addressed the overall considerations which led it to conclude that the applicant had not given a truthful account and that the applicant had not experienced the harm that he claimed to have suffered and had not been actively involved in the PDP as claimed. Hence the Tribunal did not reach the requisite standard of satisfaction in relation to the claims that were the basis for the applicant's claims to be a refugee. It is not apparent that the Tribunal either failed to ask the right question or to apply the correct test in carrying out its review. Ground 1 is not made out.
Ground 2 is that the Tribunal failed to consider the applicant's claim that he feared persecution on the basis of his membership with the PDP. The applicant's claim was not based simply on membership of the PDP, but rather on involvement in the PDP as set out above. The Tribunal considered but rejected the applicant's claims that he was actively involved in the PDP at the level that he claimed or that he was involved in any other political organisation at a senior or other level. The Tribunal did accept that he may have sympathised with and generally supported the objectives of the PDP, but found that this did not provide a basis for a well-founded fear of persecution for the reasons that are discussed above. This ground is not made out.
The third ground is unclear. It is that “the Tribunal member failed to consider all the material readily available and/or accessible and the member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials”. There are no particulars to this ground. The first respondent interpreted it as a possible allegation of a breach of s.425 or s.424A of the Migration Act 1958 (Cth). Insofar as the applicant takes issue with the Tribunal's alleged failure to provide a running commentary on his evidence, it is not required to do so. More generally, the material before the Court does not establish that the Tribunal failed to raise with the applicant at the hearing dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. On the contrary, the Tribunal account of the hearing indicates that it raised dispositive issues with him and also put to the applicant its concerns about aspects of his evidence. I note also that the Tribunal recorded that it gave the opportunity to the applicant to raise any other incidents or issues for it to consider.
In relation to the s.424A letter, the Tribunal raised a number of concerns with the applicant and invited comment on particular issues. Even if the letter went beyond the bounds of what is information for the purposes of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190), that would not constitute a jurisdictional error. There is nothing in the material before the Court to indicate that there were other items of information within s.424A(1) which it failed to raise. As set out above, the applicant did not respond within the time allowed for the s.424A response. There is nothing to suggest that the Tribunal erred in considering his application for an extension of time which it refused for the reasons that it expressed in its decision.
Insofar as there is an allegation of bias on the part of the Tribunal, that is not made out from the Tribunal's approach to the applicant's request for an extension of time. This ground also refers to available material. If it is intended to contend that there was other material or country information available to the Tribunal in relation to the situation in India, the selection and weight to be attributed to items of country information is a matter for the Tribunal. There is no suggestion that other information was put before the Tribunal by the applicant which it failed to consider and nothing to suggest that the Tribunal failed to consider the applicant's claims.

The fourth ground is that the Tribunal denied the applicant procedural fairness by reaching an adverse credibility conclusion, being a conclusion that was said not to be obviously open on the known material, without giving the applicant the opportunity to be heard in respect of these matters. Credibility findings are a matter for the Tribunal as the decision‑maker. The reasons for the Tribunal's disbelief of the applicant in this case are apparent on its reasons for decision, consistent with the approach taken by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]. The Tribunal's credibility findings were open on the evidence and, contrary to the applicant's claims, it is apparent that the Tribunal's concerns were raised with him at the hearing (notwithstanding that the Tribunal was not obliged to put its provisional reasoning to the applicant). More generally, in relation to procedural fairness I note the operation of s.422B of the Act. As indicated, there is nothing to suggest a failure to comply with s.425 or s.424A. These provisions do not require the Tribunal to put its reasoning on the applicant's credibility to him for comment (see SZBYR). This ground is not made out.
The fifth ground is that the Tribunal failed to consider an integer of the applicant's claim in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution) was at risk of harm from radical Hindus in India and not able to access effective protection. It is apparent from the Tribunal reasons for decision that at the hearing the applicant articulated a claim that Muslims were a minority in Hindu areas and often ill-treated. At the conclusion of its reasons for decision the Tribunal considered the applicant's claims that the increasing influence of Hindu political parties and organisations was causing problems for him as a Muslim and also any broader claims he may have about the political and communal situation in Kerala. It has not been established that the Tribunal failed to consider an integer of the applicant's claims.
Ground 6 is that the Tribunal failed to investigate the applicant's claims, “specially the grounds of persecution in India”. The decision is said to be affected by actual bias. First, the Tribunal did not have a duty to inquire further about the applicant's claims to fear harm (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992). In relation to the applicant's allegation of actual bias, it is a rare case in which actual bias is established on the basis of the Tribunal reasons for decision alone. There is nothing in the material before the Court to establish either actual bias or apprehended bias from the perspective of the appropriately informed lay observer. In particular, it is apparent that the Tribunal did consider the claims made by the applicant and on that basis properly considered the future if the applicant returned to India. It has not been established that the Tribunal failed to properly analyse the future harm the applicant may face or failed to apply the real chance test in the manner contended for by the applicant.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The Minister seeks costs of these proceedings. The applicant explained that he was not working, indicating that he could not meet a costs order. However, the applicant's lack of funds is not a reason in all the circumstances of the case for departing from the normal principle that the unsuccessful applicant should meet the costs of the 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. In relation to the amount of costs sought, having regard to the nature of this case, the grounds raised by the applicant, the lack of involvement of counsel and the costs awarded in matters that are similar in nature or complexity, I consider that it is appropriate to fix costs in the sum of $3500.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 20 May 2009