SZNEC v Minister for Immigration

[2009] FMCA 432

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 432

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant not believed – whether the Tribunal breached ss.424 or 424A of the Migration Act 1958 (Cth) considered – whether the Tribunal erred in its consideration of corroborative documents considered – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424, 424A, 424B, 441A

Applicant P119/2002 v Minister for Immigration [2003] FCAFC 230
Minister for Immigration v VSAF [2005] FCAFC 73
Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
Re Minister for Immigration; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
SJSB v Minister for Immigration [2004] FCAFC 225
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZDGC v Minister for Immigration [2008] FCA 1638
SZGYM v Minister for Immigration [2007] FCA 1923
SZKCQ v Minister for Immigration [2009] FCAFC 119, (2008) 170 FCR 236
SZKTI v Minister for Immigration [2008] FCAFC 83; (2008) 168 FCR 256
SZLPO v Minister for Immigration [2009] FCAFC 51
SZMSJ v Minister for Immigration & Anor [2009] FMCA 102
WAEJ v Minister for Immigration [2003] FCAFC 188
WAIJ v Minister for Immigration [2004] FCAFC 74; (2004) 80 ALD 568
WAJQ v Minister for Immigration [2005] FCAFC 79

Applicant: SZNEC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 116 of 2009

Judgment of: Driver FM

Hearing date: 7 May 2009

Delivered at: Sydney

Delivered on: 7 May 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 116 of 2009

SZNEC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 23 December 2008.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of political persecution.  Background facts relating to the applicant's claims and the Tribunal decision on them are summarised in the Minister's written submissions filed on 4 May 2009.  I adopt as background for the purposes of this judgment, with additional material, paragraphs 2 to 4 of those written submissions.

2. The applicant is a citizen of India, who arrived in Australia on 25 April 2008 and applied for a protection visa on 14 May 2008. That application was refused by a delegate of the Minister on 12 August 2008[1] and the applicant applied to the Tribunal on 4 September 2008 to review the delegate’s decision[2].

   [1] court book (CB)54-67

   [2] CB71-74

3. The applicant claimed to fear persecution in India based on his membership of, and office of Branch Secretary within, the SNDP in Kerala for five years, as well as his activities therein (particularly speeches and articles against religious fanatics and terrorists)[3]. As a result of this, he said he was targeted by SIMI and RSS. The claims were more fully particularised by the Tribunal, at [19]-[85] and [109].

   [3] CB175, [109]

4. On 28 October 2008 the Tribunal sent an email to the Department of Foreign Affairs and Trade (DFAT) seeking verification of the applicant’s claims that he wrote an article in a publication called Theenaalam in mid 2007 and that a publication house was attacked and closed in mid 2007. The request sought a response by 25 October 2008. DFAT responded on 25 November 2005 to the effect that those claims were not substantiated. The applicant was invited to comment on the DFAT response pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).

5. The Tribunal did not accept that the applicant suffered the claimed harm in India, or that he left India because of such harm, or that he fears to return there because of persecution or harm.[4] It explained that it found his evidence “internally inconsistent”, also inconsistent with country information and implausible amounting to a fabrication.[5] It gave reasons for those conclusions in detail under headings corresponding with parts of his claims.[6] There was also a concluding summary.[7] The result was that the Tribunal did not accept the applicant to be “a witness of truth”, or to have been targeted as he claimed.[8] Consequently, the Tribunal was also not satisfied that the applicant would be targeted in India in the reasonably foreseeable future for the reasons he claims.[9] Thus, the application failed.[10]

   [4] CB110

   [5] ibid

   [6] from CB111

   [7] CB146

   [8] CB110; 146

   [9] CB147

   [10] CB147-148

6. The applicant relies upon an amended application filed on 27 February 2009.  That application sets out the grounds in narrative form over 16 paragraphs.  The document is closer to a legal submission than to an application setting out grounds of review.  It was necessary to attempt to draw from the document the legal issues the applicant was seeking to raise. 

7. I dealt with the amended application at a show cause hearing on 9 March 2009. At that time I identified two issues which merited a final hearing in the form of a show cause order. Those are whether the Tribunal erred in its treatment of corroborative documents submitted by the applicant to the Tribunal having regard to paragraph 137 of the Tribunal's reasons and, secondly, whether the Tribunal breached s.424 of the Migration Act in relation to its e‑mail request to the DFAT for information.

8. I have before me as evidence the court book filed on 12 February 2009.  I also received as evidence paragraph 1 of the applicant's affidavit filed on 16 January 2009.  The second paragraph I received as a submission.  Finally, I received the affidavit of Julian D’Arcey Pinder filed in court by leave today which annexes a document omitted from the court book. That was the response by DFAT for the Tribunal's request for information. 

9. Both parties filed written submissions for the purposes of today's hearing.  The Minister's submissions deal with the amended application.  They were not confined to the show cause order made by me, but for the sake of completeness I incorporate in this judgment paragraphs 6 through to 18 of those submissions:

   There is an amended application filed on 27 February 2009 with numerous grounds in a largely narrative style, most of which plainly seek to cavil with the merits of the Tribunal’s decision and raise no question of jurisdictional error. The following aspects of the amended application may, however, on their face, in the absence of further examination, move beyond an invitation to merits review and should be dealt with.

   Ground 6 suggests that an interpreter was provided by the Tribunal who spoke a different dialect from the applicant. There is no evidence filed by the applicant upon which he could rely in this respect. The applicant filed nothing in response to the Court’s direction that he file and serve by 4 March 2009 any evidence (including transcript evidence) upon which he proposed to rely. It is not shown that there was any inability by the applicant and the interpreter to understand each other, or that the interpretation failed in any respect – much less in a material way that could amount to jurisdictional error. Whilst there is no transcript in evidence, the record of the hearing contained within the Tribunal’s reasons, which need not be complete, does in this case give a lengthy and apparently detailed account of evidence without any suggestion that there was an interpretation failure. For the above reasons, the present case is distinguishable from SZGYM v MIAC [2007] FCA 1923, for example, where Graham J, on the evidence before him, found jurisdictional error insofar as differences in dialect had led to the applicant and the interpreter not understanding each other.

   Also, it appears from [81] that, at the end of the hearing, the Tribunal asked the applicant if he had anything else to say and there is no indication that he sought to then say anything further. One would expect that he would have said something at that point if any dialectical difference had been such that he felt he had not communicated all that he wished.

   In short, for the applicant to succeed upon the basis of the this complaint, he would need to show that the quality of the interpretation was so inadequate that he was effectively unable to present his case at the oral hearing, or that the interpreter made an error that was material to a basis of the Tribunal’s decision (Applicant P119/2002 v MIMIA [2003] FCAFC 230). That has not happened.

   Ground 10 in the amended application complains that the Tribunal disregarded the applicant’s documentary evidence. At [87], the Tribunal referred to country information showing a high prevalence of document fraud in India. At [137], which appears to be the part of the Tribunal’s reasons referred to in ground 10, the Tribunal referred to certain documents (a note and a “poster with a cross-over”) and found that it “places no weight” on these documents, because of two reasons: its assessment of the applicant’s credibility and the high prevalence of document fraud in India referred to in the country information. There is no jurisdictional error in so reasoning. The Tribunal says at [71] that it raised with the applicant the high prevalence of document fraud in India, but he said he was not aware of it. There is no obligation under section 424A of the Migration Act 1958 (“the Act”) with respect to country information. 

   Even leaving aside the country information and the Tribunal’s conclusion from it, the Tribunal would still have been entitled to give no weight to the documentary material given its findings as to the applicant’s credit. See Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49], to which reference has been made, for example, in WAJQ v MIMIA [2005] FCAFC 79 at [15]-[16]; WAEJ v MIMIA [2003] FCAFC 188 at [52]

   To the extent that the applicant’s other grounds allege that that the Tribunal did not properly consider what he had said, there is no evidence that the Tribunal failed to consider any claim that it was jurisdictionally obliged to deal with (as to which see, for example, NABE v MIMIA (No 2) (2004) 144 FCR 1 at [55]-[63] and [68] per Black CJ, French and Selway JJ). Nor is there any clear allegation or any evidence of bias or of a reasonable apprehension of bias. The Tribunal could only grant the application if it was satisfied that the criteria for the grant of the visa were satisfied. Absent such satisfaction, it was obliged to refuse the application (SJSB v MIMIA [2004] FCAFC 225 at [15]; MIMIA v VSAF [2005] FCAFC 73 at [17]). The fact that it did so does not show bias, apprehended bias, or any other jurisdictional error.

   In relation to the applicant’s claimed memory difficulties, the Tribunal dealt with those contentions, without jurisdictional error, at [144].

   The applicant was properly invited to a hearing (CB80-81) under section 425 of the Act and it is not apparent that there was any non-compliance with that section (which must, of course, now be understood in the light of SZBEL v MIMA (2006) 228 CLR 152).

   The applicant was invited to provide additional information under section 424 of the Act (CB103-104). There appears to have been extensive questioning at the hearing. He was also given an invitation under section 424A of the Act (CB142-143), after the Tribunal received information from DFAT in response to the request at CB140-141. All of these letters were sent in accordance with section 441A of the Act. There was no non-compliance with any of the Tribunal’s statutory obligations.

   There was a clear typographical error in the written request that the Tribunal sent to DFAT (RD140) insofar as it is dated 28 October 2008 and sought a response by 25 October 2009 (3 days earlier). The DFAT response was provided subsequent to and in answer to the request (copy not in Court Book, but to be provided) and there is no indication that DFAT sought or required any more time. The information obtained from DFAT was then the subject of the abovementioned invitation to the applicant under section 424A of the Act.

   The Full Court of the Federal Court of Australia has now delivered its judgment in SZLPO v MIAC [2009] FCAFC 51. It follows from that judgment that the request to DFAT was not a request to a person for additional information within the meaning of section 424(2) and that there could accordingly have been no requirement imposed by sections 424(3), 424B or 441A with respect to that request. See SZLPO at [123]-[124]. That judgment also finds that “additional information” within section 424(2) means “information in addition to information previously provided to the Tribunal by the invitee” ([99]-[100]); that the word “person” in section 424(2) catches only a “natural person” ([105]-[108]) whose identity is known at the time of extending the invitation ([109]); and that a “document” is not “information” ([110]), although it may convey “information” ([111]-[114]). The Full Court also held at [158] that section 414(1), coupled with section 415(1), “provide authority for the Tribunal to request or invite someone to produce a document (or, for that matter, to give non-documentary information) to the Tribunal, subject to any constraint to be found in the Act”.

   Particularly in the wake of SZLPO, it is clear that sections 424(2), 424(3), 441A and 424B were not engaged by the request to DFAT.

10. The applicant filed written submissions on 4 May 2009.  He told me that that document was prepared by a friend based on what he said.  The applicant's submissions are remarkable for three reasons.  First, they begin with an allegation of actual bias against the Tribunal which is entirely unsupported.  The applicant was unable to say anything today to provide any substance to that allegation.  The allegation should not have been made.  Secondly, the balance of the submissions deal with the applicant's fear of harm in India and the merits of his application before the Tribunal.  Thirdly, the submissions do not address the issues raised by me in the show cause order.  I am not assisted by the applicant's submissions. 

11. In his oral submissions, the applicant said that he is afraid to return to India, particularly during the current elections and that he could provide more documents for the Tribunal to support his protection visa claims if the case were remitted to the Tribunal. 

12. Counsel for the Minister made oral submissions directed at the issues raised in the show cause order. In addition I received oral submissions from the Minister's counsel in relation to s.424A of the Migration Act in the light of the DFAT response to the Tribunal's request for information which had been omitted from the court book.

13. Rule 44.13(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) provides that:

    At a final hearing following a hearing under rule 44.12, the applicant is confined to the grounds specified in the Court's order to show cause.

14. That order was in the following terms:

    Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the Minister is ordered to show cause why relief should not be granted in relation to ground 10 in the amended application filed on 27 February 2009 in relation to paragraph 137 of the Tribunal’s reasons (court book, page 181) and in relation to the question of whether the Tribunal breached s.424 of the Migration Act 1958 (Cth) in relation to its email request to the Department of Foreign Affairs and Trade dated 28 October 2008 (court book, ages 140-141) which requested a response on or before 25 October 2008.

15. At the time I made that order I saw no other arguable case of jurisdictional error rising from the amended application. I see no reason to depart from this Court's rule in relation to that amended application. I have, however, given consideration to whether the Tribunal breached s.424A of the Migration Act, given the additional evidence received today from Mr Pinder. To the extent that anything else may be thought to have been left unresolved from the show cause hearing, I am satisfied that the Minister's submissions deal adequately with the amended application and accept them.

16. I will now deal with the specific issues requiring consideration.  On 1 May 2009 the Full Federal Court gave judgment in the case of SZLPO v Minister for Immigration [2009] FCAFC 51. That decision of the Full Court provides authoritative guidance on the interpretation of s.424 of the Migration Act, at least pending the resolution of outstanding proceedings in the High Court. The Full Court considered whether a distinction should be drawn between subsections (1) and (2) of s.424[11]. The Court noted that subsection (2) presupposes that the Tribunal already has some information. The Court further noted that subsection (1) gives no indication as to the method by which the Tribunal may get that information. However, the Full Court suggested that the methods available to the Tribunal were no more and no less than those that are expressed in or implied by the various sections of the Migration Act or implied by the general law.

    [11] at [89]-[93]

17. The Full Court went on to explain[12] the distinction between subsections (1) and (2) as possibly being that, whereas subsection (1) is concerned with the Tribunal seeking to get information that the Tribunal considers relevant, subsection (2) is concerned with invitations to give additional information that the invitee may consider relevant.  The Court considered that, on that view, subsection (1) would apply in all cases where the Tribunal actually seeks particular information which might include additional information, while subsection (2) would apply to the invitations to give any information that the invitee considers relevant and that is additional to information that he or she has previously given to the Tribunal.  The Full Court did, however, express the view that it would be difficult to find a basis for this construction in the terms of the provision. 

    [12] at [96]

18. In giving a meaning to “additional information”[13] the Full Court considered s.424(3) was only workable if the invitee was a person who had already given information to the Tribunal and considered that the notion that additional information means additional information to any information already possessed by the Tribunal, whether it came from the invitee or not, was problematic. The Court considered that the preferred construction of “additional information” is information additional to information previously given to the Tribunal by the invitee. The Court also considered the meaning of the words in subsection (2) “without limiting subsection (1)”. The Full Court expressed the view those words suggest that in their absence, subsection (2) might be thought to limit subsection (1). A way in which subsection (2) might be thought to limit subsection (1) is by imposing on it the written invitation regime that is associated with subsection (2) and (3). Another way in which it might be thought to do so is by requiring an invitation in all cases as distinct from permitting an exercise of the Tribunal's coercive powers to get information. The Court suggested that subsection (2) is not a subset of subsection (1). The terms of subsection (2) are broad enough to permit an open‑ended invitation to give additional information provided only it is information additional to that which the invitee has previously given to the Tribunal.

    [13] at [98]-[102]

1. The Full Court also considered[14] whether the word “person” in subsection (2) means only a natural person.  The Minister had sought to distinguish SZLPP with SZKTI v Minister for Immigration [2008] FCAFC 83; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration [2009] FCAFC 119, (2008) 170 FCR 236 on the ground that the Tribunal's requests on those occasions were addressed to natural persons, not corporations or bodies politic or government departments. The Full Court was inclined to accept the Minister's submission that subsection (2) provides the voluntary equivalent of the compulsive power to summon an identified person to attend the Tribunal and to give evidence[15]. 

   [14] at [103]-[106]

   [15] see s.427(3)(a)

2. The Court also noted that in s.441A the person to whom the document is to be given is called the “recipient”[16]. This is a person to whom it is possible to hand the document or has provided to the Tribunal an address of one kind or another. The Court expressed the view ss.441A(3), (4) and (5) suggested the recipient is a natural person. Finally, the Court expressed the view that the kind of issues into which the Tribunal is required to inquire suggests information that an individual is able to give concerning an individual. Having regard to the above reasoning the Court concluded that the word “person” in s.424(2) is limited by reference to a person whose identity is known at the time of extending the invitation.

   [16] at [110]-[114]

3. Finally, the Full Court considered[17] whether a document was information and therefore additional information within s.424(2). The Court expressed the view that the two words mean different things, although a document may convey information. Section 424B(1) provides that if a person is invited under s.424 to give additional information, the Tribunal must specify the way in which it is to be given. This requirement would not make sense if it is to be applied to a document.

   [17] at [110]-[114]

4. At [123] and [124] of their judgment their Honours specifically dealt with the issue of invitations to DFAT:

   The Minister’s second submission is that since neither DFAT nor the National Ameer had previously given information to the Tribunal in the course of its review, any invitation by the Tribunal was not an invitation to give "additional information", with the result that s.424(2) was not engaged.

   For the reasons given at [88] to [102] above, we agree.

5. The Court concluded on the basis of its reasoning summarised above that the invitation at issue in that case to DFAT was not a request to give additional information pursuant to s.424(2) and that that subsection was not engaged. It followed that the formal requirements in relation to such a request were irrelevant. No other conclusion is open in this case.

6. I find that the Tribunal did not breach s.424 of the Migration Act in relation to its request to DFAT to provide information. Nothing turns on the obvious typographical error in the request for information which on its face called for a response before the invitation was given. I accept the Minister's submissions in that regard.

7. I also find that the Tribunal did not breach s.424A of the Migration Act. The affidavit of Mr Pinder annexes the DFAT response to the Tribunal's request for information. Having regard to that evidence and the terms of the invitation to comment issued pursuant to s.424A (CB 142 and 143) I am satisfied that the Tribunal gave adequate particulars of the information derived from the DFAT response. The invitation fairly and accurately identifies that information. The invitation also explains adequately the significance of that information and otherwise complies with the formal requirements of s.424A.

8. The applicant responded to the invitation to comment and that response is reproduced at CB 144 and 145.  The Tribunal gave careful consideration to that response at paragraphs 117 and 119 of its reasons (CB 177).  The Tribunal accepted that the publication Theenaalam might possibly exist as a minor publication, but at paragraph 118 the Tribunal did not accept that any article written by the applicant caused the applicant to suffer the damage he claimed.  At paragraph 119 the Tribunal considered and rejected the applicant's response to the adverse information concerning the absence of any support for his assertion of an attack on a publication house in mid 2007.  The Tribunal found that no such attack took place.  I see no error in the Tribunal's approach. 

9. The remaining issue is whether the Tribunal fell into error in its treatment of what appeared to be corroborative documents.  I set out in this judgment the text at paragraph 137 of the Tribunal's reasons (CB 181):

   The Tribunal notes that the applicant submitted in support of his claimed September 2007 attack a note dated 4 September 2007 indicating that a SNDP rally was to be held on 5 September 2007 to get organized against the RSS and SIMI radicals and refers to the applicant who is an earnest participant of SNDP being a victim to the criminals, and is currently in hospital struggling for his life as he was fighting against fundamentalism and superstitious beliefs.  Similarly he has submitted a poster with a cross over it as evidence that he will be targeted if he returns to India.  The Tribunal places no weight on these documents, based on its assessment of his lack of credibility and the high prevalence of document fraud in India as referred to in the background information above. 

10. The Federal Court dealt with the issue of the Tribunal's obligation to take into account corroborative evidence in SZDGC v Minister for Immigration [2008] FCA 1638 at [23] to [27]:

    It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.

    For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said at [27]:

    Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied ... it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 at [82]- [85] per McHugh, Gummow and Hayne JJ.

    The appellant submitted that the conclusion that she had lied to the tribunal was based on the operation of Chinese law relating to the exit and entry of citizens and the issue of passports in circumstances where she had told to the tribunal that (a) she had only been administratively detained after her request for permission to hold a work related protest; (b) she had given an undertaking to persuade those unemployed workers to not engage in any protests in the future; (c) she had not come under any further adverse notice and was not actively sought until after her departure; (d) her application for the second passport was filed before her detention through a friend and money was involved; (e) her Australian visa was obtained through a secret member in the Tourism Bureau of Qingdao City; (f) Chinese law provides for cancellation of the passports of those who have been involved in activities that are endangering the safely, the honour and the interest of the country; and (g) some of the country information speaks only of the probability that a person who has obtained a Chinese passport and exit permit would not be on wanted lists.

    I am in no doubt that, contrary to the views of the Magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said:

    The applicant has claimed in her most recent submission that: The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims. The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.

    This is not a rational approach.  Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category.

11. I followed that decision in SZMSJ v Minister for Immigration & Anor [2009] FMCA 102. In that case, as in SZDGC, the Tribunal had given no weight to corroborative evidence of past harm in the light of a prior adverse credibility finding.  However, importantly in SZMSJ the adverse credibility finding by the Tribunal was not a comprehensive one.  The Tribunal had accepted important elements of the applicant's evidence in order to reach conclusions concerning his claims of past harm.  In the circumstances of that case it was not open to the Tribunal to disregard the corroborative evidence in order to reach a conclusion on the credibility of those claims of past harm. 

12. The position here is different.  First, the Tribunal made comprehensive findings of untruthfulness against the applicant.  The first finding was a general one at paragraph 110 of the Tribunal's reasons (CB 176):

    The Tribunal does not accept the applicant suffered the harm in his country that he claims for the reasons that he claims.  The Tribunal does not accept as true that the applicant left his country because of the harm that he claims or that he fears to return there because he fears persecution or harm in India.  It finds the applicant’s testimony internally inconsistent, inconsistent with independent country information and implausible amounting to a fabrication for the reasons below.  This leads the Tribunal to find that the applicant was not targeted in India in the manner he claims and it does not accept that he is a witness of truth.

13. That paragraph was in the nature of a summary of the Tribunal's conclusions which preceded the detailed consideration of the applicant's claims.  The Tribunal returned to that general view in paragraph 146 of its reasons (CB 182):

    On the basis of the applicant’s inconsistencies and implausible evidence, the Tribunal does not believe that the applicant is being truthful.  The above leads the Tribunal to find that the applicant is not a credible witness and that he  has fabricated evidence regarding being targeted by the RSS and SIMI for speeches and articles he made in 2006 and 2007, and did not suffer any harm as a result of any speeches or articles he wrote.  It does not accept he was targeted in December 2006 when Mahim was killed or in Mala in 2007 or in July 2007 by SIMI or RSS.  It does not accept either the RSS or SIMI destroyed his or his family’s property in July 2007, harmed or threatened to harm him or his family in July 2007.  It does not accept the publication house was destroyed as a result of the publication of his article or his article burnt in July 2007 by SIMI activists.  It does not accept he went into hiding and was followed into hiding by SIMI or RSS, or that he was beaten in September 2007 by SIMI or RSS activists for the reasons he claims or again went into hiding.  It does not accept that both of these organizations have continued to threaten him and his family with harm since his departure from India, put posters up saying “kill this pretending Rushdi”, or ever burnt an effigy of his body for the reasons he claims.  It does not accept the property is bankrupt because of targeting by the SIMI and RSS activists and those of SIMI or RSS against him, or are in fear for any of the reasons he claims.

14. Those general adverse credibility findings were reinforced at other points in the Tribunal's reasons, most importantly at paragraph 133 (CB180):

    The Tribunal finds him not to be credible and not to be a witness of truth.  On the basis of all of the above the Tribunal does not find the applicant to be credible or a witness of truth due to his conflicting evidence on major events in his claims.  It does not accept that the applicant was targeted by the RSS and SIMI for writing any articles or making any speeches against these organizations, on fanaticism or terrorism or any other ground in July 2007 or before.  It does not accept he or his family, his or his family’s property or his brother was targeted by either of these organizations in December 2006 when Mahim was killed, in April 2007 when giving a speech, in July 2007 after the alleged article was published.  It therefore does not accept he was threatened by these organizations with serious harm in person or by the phone or in any other manner.

15. Viewed fairly as and as a whole, the Tribunal's reasons place this case in the relatively narrow class of cases identified by the High Court in S20/2002.  This was a “poisoned well” case.  Further, even if this was not such a case, the Tribunal was also influenced by the high prevalence of document fraud in India in its treatment of the documents.  Country information concerning the incidence of document fraud was raised with the applicant during the course of the hearing (See paragraph 71 of the Tribunal's reasons at CB166).  The high incidence of document fraud plainly led the Tribunal to be dissatisfied with the documents.  That, combined with the Tribunal's assessment of the applicant as being wholly untruthful, permitted the Tribunal to place no weight on the documents.  I see no error in the Tribunal's approach. 

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

17. The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the amount of $6,700. Scale costs in this instance would be $5,865. The Minister seeks an additional amount having regard to the preparation required, particularly in relation to the issue of s.424 of the Migration Act which was a matter of some controversy prior to the judgment of the Full Federal Court in SZLPO.  I accept that some additional preparation was required of the Minister's legal advisors in this case, although the scale envisages the involvement of counsel and a reasonable degree of preparation and that scale has recently been increased.  The applicant expressed a willingness to pay costs but invited my consideration of a reduction in the amount sought.  I accept that costs of not less than $6,000 have been reasonably and properly incurred on behalf of the Minister and assessed on a party and party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 May 2009