SZNDJ v Minister for Immigration

[2010] FMCA 139

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 139

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

Migration Act 1958 (Cth), s.424A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

First Applicant: SZNDJ

Second Applicant: SZNDK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2566 of 2009

Judgment of: Barnes FM

Hearing date: 22 February 2010

Delivered at: Sydney

Delivered on: 22 February 2010

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application be dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2566 of 2009

SZNDJ & SZNDK

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 30 September 2009, affirming a decision of the delegate of the first respondent not to grant the applicants protection visas.

2. The applicants, who are husband and wife and citizens of India, arrived in Australia in May 2008 and applied for protection visas.  The applicant husband essentially claimed to fear persecution because of his membership of a lower Hindu caste and because he was a Congress supporter.  His wife applied for a protection visa as a member of his family unit.  For convenience future references to the applicant are to the applicant husband.

3. The applications were refused by a delegate of the first respondent and the applicants sought review by the Tribunal.  The Tribunal affirmed the decision of the delegate and the applicants sought review in this court.  Orders were made by consent remitting the matter to the Tribunal for reconsideration.  The orders of Emmett FM made on 15 May 2009 noted the concession by the first respondent that the Tribunal had failed to consider an integer of the applicant's claims, specifically his claim to fear persecution because of his lower Hindu caste.

4. When the matter was remitted, the Tribunal, differently constituted, invited the applicant to attend a hearing. The applicant husband attended the Tribunal hearing on 29 July 2009. On 30 July 2009 the Tribunal wrote to the applicants under s.424A of the Migration Act 1958 (Cth) (the Act) inviting them to comment on or respond to information the Tribunal considered would, subject to any comments or response by the applicants, be the reason, or a part of the reason, for affirming the decision under review. The applicants responded by letter dated 24 August 2009.

5. In its reasons for decision, the Tribunal set out the background to the application, including the claims made by the applicant in connection with his protection visa application, at the hearing conducted by the Tribunal as originally constituted, at the second Tribunal hearing and in response to the s.424A letter.

6. The Tribunal summarised the applicant's claims as claims on the Convention grounds of political opinion, race and membership of a particular social group on the basis that the applicant claimed that he was a lower caste Hindu and a member and/or supporter of Congress who had been harassed, threatened and harmed by BJP activists and also that he was threatened by and in fear of his wife's family, who were said to belong to a higher caste and to have opposed his marriage.

7. However the Tribunal found that the applicant did not impress it as a truthful or reliable witness and that “his overall evidence [cast] serious doubt on the veracity of his claims and his credibility”.  In reaching that view the Tribunal had regard to what it described as "uncanny similarities" between his claims and those submitted by another applicant for review of a decision to deny a protection visa about a year before the applicant arrived in Australia, as well as “significant inconsistencies” between the evidence the applicant presented to the Department and his evidence to the Tribunal.

8. The Tribunal explained that the statement of claims submitted by the applicant in support of his protection visa application was identical to the statement of another visa applicant lodged approximately a year before the applicant arrived in Australia, apart from the name and place of birth details and a short sentence at the end of the first paragraph.  Not only did the Tribunal find the statements almost indistinguishable, it also found that they contained identical sentences, paragraphs, spelling, grammatical errors and identical claims, including specific details relating to past instances of harm in India.

9. The Tribunal recorded that it had put this information to the applicant at the hearing and that, apart from emphasising the authenticity of his own statement of claims, the applicant had not offered any explanation for the near identical nature of the documents. The Tribunal also recorded that while it had also put this information to the applicant in the s.424A letter, he did not specifically comment on it.

10. The Tribunal found that the similarities in these claims were “far too great to be dismissed as mere coincidence”.  It was satisfied that the applicant's evidence was a “total fabrication and ha[d] been manufactured for the purpose of securing a protection visa”.  The Tribunal stated that this finding was strengthened by “numerous inconsistencies and improvisations” in the applicant's evidence throughout the process, such as “inconsistent evidence to the Department (in his Tourist visa and protection visa applications) and to the Tribunal in relation to his addresses, movements, work history and financial situation”.

11. The Tribunal set out details of inconsistencies and addressed the applicant's comments and the absence of explanation for inconsistencies.  It found that inconsistencies such as these cast considerable doubt over the applicant's claims of past persecution and the truth of his evidence.  It did not find the applicant's explanations for these inconsistencies provided “any meaningful explanation”.  The Tribunal was of the view that his responses were “completely unsatisfactory”. 

12. The Tribunal was also of the view that the applicant had been “neither truthful nor reliable in providing evidence in relation to his work history and finances” as it detailed. 

13. The Tribunal addressed inconsistencies in the applicant's accounts of his experiences of harm in India. It set out those inconsistencies, the fact that they were put to the applicant in the s.424A letter and found that his general response that his statement was fully based on what happened to him and that he had not fabricated his claims, did not explain the depth of inconsistencies. It also had regard to the fact that the applicant had “belatedly introduced new significant claims” such as the claim at the second hearing that his wife's family had threatened to kill him because he was a lower caste Hindu and opposed his marriage.  It found his explanation (that it was difficult to mention everything in detail and there were always threats since he was married), to be “unsatisfactory and [wa]s of the view that if the applicant had received serious threats…as a result of his marriage…he would not have neglected to mention this earlier”. 

14. For all these reasons the Tribunal did not find the applicant to be a credible, truthful and reliable witness.  It stated:

    The totality of his evidence shows a propensity to shift, tailor and manufacture evidence in a manner which achieves his own purpose.

    The Tribunal was of the view that the applicant's claims “were entirely fabricated” and “designed to secure him a favourable immigration outcome”.

15. The Tribunal addressed the applicant's claim at the second hearing, that he had been experiencing “tensions”.  It observed that he had provided some inconsistent evidence at that hearing.  However the Tribunal was of the view that the applicant “did not appear to be incoherent or unable to respond to the Tribunal's questions in a clear manner” and noted that he “did not claim or provide any medical evidence to show…incapacita[tion] in any way or [that] his ability to give evidence was hampered due to medical reasons”.  On the evidence before it the Tribunal was satisfied “the applicant's state of health did not affect his ability to give evidence or infect his evidence” such as to satisfactorily explain, wholly or partly, the Tribunal's credibility concerns. 

16. The Tribunal also considered the effect of delay and any disadvantage to the applicant of having to provide oral evidence over two hearings, albeit that there had not been what the Tribunal regarded as a significant delay between the hearings.  The Tribunal found that even if it accepted that “aspects of the applicant's evidence may have been affected, the inconsistencies and the fundamental shifts in [his] claims [could] not be explained by reference to delay and repetition of claims over a period of time”. 

17. The Tribunal then summarised the claims that it did not accept, including that the applicant was a hairdresser, that he had a hairdressing business, that he was a partner in an auto parts business and was forced to leave the business for the reasons provided.  Nor did it accept that he was a member, supporter or in any way associated with Congress, or that he was verbally abused, harassed, threatened, assaulted or persecuted by BJP activists, or by anyone else for reason of his claimed support or affiliation with Congress, or for reason of his caste.

18. The Tribunal did not accept that the applicant's shop was attacked, his property damaged or that he was knocked off his motorbike by BJP activists and/or supporters.  Nor did it accept the applicant's account of his marriage or the circumstances in which he claimed to have married his wife, or that he was ever harassed, threatened or harmed in any way by his wife's family, villagers or anyone else for reason of his caste or for any other reason he provided.  The Tribunal did not accept that the applicant had any problems in India because of his caste membership.

19. The Tribunal concluded that it did not accept that the applicant had suffered any Convention-related harm in India, or that there was a real chance he would be harmed for a Convention reason if he were to return.  It was not satisfied that he had a well-founded fear of persecution and concluded that the applicant was not a refugee.  As the applicant husband did not satisfy the criteria for the class of visa for which he applied, it followed that his wife could not satisfy the relevant criteria and could not be granted the visa.

20. The applicants sought review by application filed in this court on 23 October 2009.  They did not file any amended application or written submissions, but the applicant husband (who attended the hearing) was given the opportunity to make oral submissions. 

21. The first ground in the application is expressed as a claim that the Tribunal member “failed to honour his undertaking”. The application then refers to s.424A(1) of the Migration Act, under which the Tribunal has an obligation to put to the applicant particulars of any information it considers would be the reason, or part of the reason, for affirming the decision under review.

22. The applicant claimed that the Tribunal ignored its undertaking to give him an opportunity to make a written submission about inconsistencies in his evidence and therefore that it erred by denying him procedural fairness in respect of that issue. 

23. First, insofar as this amounts to a contention that the Tribunal failed to comply with s.424A of the Migration Act, such claim is not made out. As set out above, the Tribunal wrote to the applicant under s.424A of the Act after the second Tribunal hearing by letter of 30 July 2009. In that letter it put to the applicant not only the similarity between his claims and the claims of another applicant, which it set out in full, but also explained the relevance of that information and the Tribunal’s concerns.

24. In addition, the Tribunal put to the applicant a number of inconsistencies in his evidence to the Department and/or to the Tribunal and in each case explained the specific relevance of that information and the Tribunal’s concerns in that respect. 

25. It has not been established and nor is it apparent that there was any other information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review within s.424A(1). Nor has it been established in relation to the information put to the applicant that the Tribunal failed to ensure, as far as is reasonably practicable, that the applicant understood why it was of relevance to the review. The applicants were given the opportunity to comment on the information.

26. In relation to the particular issue of inconsistencies, as indicated the Tribunal put numerous inconsistencies to the applicant in the s.424A letter whether or not it was obliged to do so under s.424A. However the Tribunal recorded in its account of the Tribunal hearing, that it explained it would write to the applicant to put certain adverse information to him and noted that its primary concerns related to inconsistencies in evidence, as well as the similarity with the written statement of another protection visa applicant. Insofar as this is the so-called “undertaking”, the Tribunal honoured such undertaking by way of the s.424A letter and put inconsistencies to the applicant for comment even though such matters would not constitute information within s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26). No failure to comply with s.424A is established.

27. Given the opportunity afforded to the applicant to give comments on or respond to this information, it has not been established that the Tribunal failed to give the necessary opportunity to the applicant to respond to its concerns.  Ground 1 is not made out.

28. The second ground is that the “applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision”, that the Tribunal did not consider this aspect and “therefore committed factual and legal error”.  This appears to be a reference to the Tribunal's summary of the law and the definition of "refugee" at the commencement of its decision.  I note that in the affidavit accompanying the application, the applicant contended generally that the “Tribunal member failed to analyse properly the ‘future harm’ I may face if I have to go back to India”.

29. Insofar as the applicants seek merits review, merits review is not available in this court.  Insofar as it is contended that the Tribunal had to analyse the future harm the applicant may face, in circumstances where the Tribunal did not accept the credibility of any of the applicant's claims about past harm which he claimed gave rise to a well-founded fear of persecution, it was not necessary for it to go on to analyse in any more detail than it did the possibility of future harm.  The Tribunal properly considered whether there was a real chance the applicant would be harmed for a Convention reason, but was not satisfied that the applicant had a well-founded fear of persecution in India.  Insofar as the applicants seek merits review, merits review is not available in this court.  This ground is not made out.

30. The third ground is that the Tribunal “failed to investigate applicants claim (sic), specially the grounds of persecution, in India for being lower caste”.  It is also contended that therefore the decision was “affected by actual bias”.  Hence there appear to be two aspects to this claim:  a claim of bias and a claim of a failure to investigate. 

31. It is well-established that it is only in a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the Tribunal reasons for decision.  See SZHVL v Minister for Immigration and Citizenship [2008] FCA 356. There is no transcript of the hearing before the court in this instance. The material before the court is not such as to support the applicant's claims of bias, whether actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 or apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.

32. This is not a case in which it can be said that the Tribunal’s fact-finding was conducted in a manner which resulted in a reasonable apprehension of bias. Rather, it is apparent from the Tribunal's reasons for decision that its conclusions were based on the material before it, after discussion of issues of concern with the applicant and after the opportunity was afforded to the applicant by virtue of the s.424A letter to comment on the Tribunal’s concerns in specific respects. There is nothing in its reasons for decision to suggest that the Tribunal approached its task with anything other than an open mind. Neither actual nor apparent bias is established.

33. In relation to the contention of a failure to investigate, the applicant took issue in oral submissions with whether or not the Tribunal had investigated his claims in India.  According to the Tribunal account of the Tribunal hearing, the applicant had also said to the Tribunal that the Tribunal could arrange for investigations to be carried out in India.  The Tribunal recorded that it explained to the applicant that it was under no obligation to make his case for him and that it was his responsibility to provide evidence in support of his claims.

34. Failure to inquire will establish jurisdictional error only in exceptional circumstances.  In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 the High Court referred to the possibility of judicial review in circumstances where there had been a failure to make an obvious enquiry about a critical fact, the existence of which was easily ascertained. This is not such a case. It has not been established that there was an area of obvious inquiry about a critical fact, the existence of which was easily obtained. Rather, the applicant’s contention generally is that the Tribunal failed to investigate his claims about persecution because of his lower caste. The Tribunal did not accept that the applicant had any problems in India because of his caste membership or issues associated therewith, based on its comprehensive rejection of his credibility. However it has not been established by the applicant and nor is it apparent that there was any failure to enquire in the manner contemplated by the High Court in SZIAI or otherwise constituting or giving rise to jurisdictional error.  Rather this was a case in which, as Gummow and Hayne JJ stated in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187],:

    It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.

35. Finally, the solicitor for the first respondent addressed the issue of whether the Tribunal as reconstituted, fell into, or avoided falling into, the same error that had been conceded to exist in relation to the Tribunal as originally constituted.  As set out above, the Tribunal decision was remitted by consent on the basis that the Tribunal had failed to consider the applicant's claim to fear persecution because of his lower Hindu caste.

1. I am satisfied that the Tribunal as reconstituted did not fall into such an error.  It not only set out the applicant's claims in that respect, but also addressed the specific aspects of the claims based on caste membership, as well as the claims the applicant raised at the hearing in relation to a fear of his wife's family.  The Tribunal rejected the applicant's credibility overall, and also addressed those aspects of his claims that related to caste.  In particular the Tribunal considered but rejected the applicant’s claims of past persecution, whether by BJP activists or by anyone else, or by his wife's family, villagers, or anyone else, for reasons of his caste or for other reasons he had provided.  The Tribunal did not accept the applicant's claim that he had had any problems in India because of his caste membership.

2. Finally, I note that in submissions the applicant raised the merits of his claim to be a refugee.  As I endeavoured to explain to him, it is not for the court to determine whether or not an applicant is a refugee.  His contentions in this respect do not establish jurisdictional error on the part of the Tribunal.  As no jurisdictional error has been established, the application must be dismissed.

3. The applicants have been unsuccessful, and there is nothing in the circumstances of this case to warrant a departure from the normal rule that unsuccessful applicants should meet the costs of the first respondent.  The applicant told the court that he did not have any money, but his lack of funds is not a reason for departing from the normal principle, 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, having regard to the nature of this and other similar proceedings.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  10 March 2010