SZNHG v Minister for Immigration

[2009] FMCA 663

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 663

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

Migration Act 1958 (Cth), ss.424AA, 424A

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant: SZNHG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 479 of 2009

Judgment of: Barnes FM

Hearing date: 9 July 2009

Delivered at: Sydney

Delivered on: 9 July 2009

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $2,850.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 479 of 2009

SZNHG

Applicant

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 15 February 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, an Indian citizen of Tamil ethnicity, arrived in Australia in July 2008 and applied for a protection visa in August 2008.  He claimed in essence to have a well-founded fear of persecution for reasons of his membership of the Tamil Nadu Liberation Army (the TNLA) whose leaders supported the Liberation Tigers of Tamil Elam (the LTTE). 

3. The application was refused by a delegate of the first respondent.  The applicant sought review by the Tribunal.  In the course of the proceedings he attended both an interview with the Department and also a Tribunal hearing at which he elaborated on his claims, in particular claiming that his father had been a member of and involved in the LTTE who had gone into hiding and had died.  The applicant also claimed, among other things, that he had been arrested and detained more than ten times and had suffered physical harassment and harm from the Indian authorities. 

4. The Tribunal recorded that at a resumed hearing it put to the applicant information it described as information that could be the reason for affirming the decision to refuse him a visa.  He was given the opportunity to have time to respond either in writing or at a further adjourned hearing.  He indicated that he wished to respond.  The Tribunal then put to the applicant a number of matters, in particular concerns about information he provided to the Department in connection with his protection visa application, both on the basis of inconsistencies and also a failure to claim in connection with his protection visa application certain matters that he had raised before the Tribunal.  The Tribunal also put to the applicant issues about his travel in and out of India.

5. In its findings and reasons the Tribunal summarised the applicant's claims that he used to “sell photos of the big people of the LTTE”, that his father was a member of the LTTE who went into hiding from about 1991, that the applicant was also a member of the TNLA, that the police had continued to search for the applicant's father and had arrested and detained the applicant more than ten times in 1991 to 1992 and again in 2005/2006 and 2007, although they did not harm him when he returned to India in 2008 as he was in hiding at that time.  It recorded that the applicant had been residing and working abroad since 1993 but had returned to India on numerous occasions and claimed that in the past he had been detained and suffered physical harassment and harm from the Indian authorities.

6. The Tribunal also recorded that the applicant had suggested that he suffered from memory loss as a general explanation for inconsistencies and omissions in his evidence.  The Tribunal rejected this explanation in the absence of medical information to support it and concluded that it was satisfied that the applicant was not a witness of truth and that he had created his claims to obtain the visa sought.  It gave a number of reasons for this conclusion, including the implausibility of the omission of a serious claimed assault in 2007 from his application for a protection visa.  The Tribunal found it implausible that he would not know what was in the protection visa application and rejected his subsequent explanation that he wrote the document but was not very fluent and did not write much, as an explanation for his claim that he omitted a claim of serious harm or torture consisting of being hung upside down and being hit with a baton by the police. The Tribunal found that this claimed serious assault by the police was a late invention made to bolster his claims.

7. The Tribunal also discussed the applicant's evidence about his travel to and from India and was of the view that his return to India after trips abroad indicated that he lacked a subjective fear of persecution.  It was also of the view that a person who had been in hiding on a number of different occasions as he claimed to the Tribunal would have informed the Department of this in connection with his protection visa application.  It found the applicant's claims in relation to the reasons for his release from detention to be implausible, in particular finding that it was implausible that a person who was, as he claimed, imputed to be an LTTE or TNLA supporter who had been detained on a number of occasions and on one occasion treated in a manner that could be described as torture, would be released by the police on a friend's say so.

8. The Tribunal had regard to the fact that he claimed that he claimed he had not been subject to bail with reporting conditions, contrary to his claims to the Department.  The Tribunal rejected the applicant's claim of memory loss for an explanation for this inconsistency, finding that this was a late invention to overcome the inconsistency. 

9. The Tribunal also had regard to independent information in relation to departure controls in India, finding it implausible that if the applicant was a known LTTE or TNLA supporter who had been harassed and detained as claimed, he would not have been of interest to the Indian authorities when entering and exiting India.

10. It also found implausible the applicant’s claim that only local police were harassing him, or that the police could only find him in his village if he went to his home, having regard to independent evidence about the police ability and willingness to locate those suspected of being LTTE supporters and information indicating that if he had the profile he claimed he would not have been able to enter and exit India through Chennai airport, the International airport of Tamil Nadu, on more than five occasions between 1993 and 2008 without being detected. 

11. As the Tribunal found that the applicant was not a witness of truth it also found that he and his father were not LTTE members or supporters or TNLA members or supporters.  It did not accept the applicant's claims about assisting the LTTE, collecting money, distributing propaganda material, providing safe accommodation or selling photographs.  Nor did it accept that the applicant was arrested, questioned, detained or harmed by the police or that they sought him in his village.  It was satisfied that he suffered no harm for his support, imputed profile or membership of the TNLA or LTTE, that he did not go into hiding when he returned to India and that he was of no interest to the Indian police when residing in India or when he returned to India from trips to Saudi Arabia, Singapore and Thailand. 

12. On the basis that the applicant was not a witness of truth, the Tribunal also found that his father was not a member of the LTTE or the TNLA or a supporter or that he was in hiding since 1991 as claimed.  It found that the authorities did not seek to harm the applicant because of his father's activities or seek to locate his father, that the applicant had no involvement with the LTTE in India and that he was not imputed to be an LTTE or TNLA supporter.  More generally, it found that the applicant did not have an adverse political profile in India and in Tamil Nadu and on the evidence before it was not satisfied that if he went back to India he would be arrested at the airport because of his imputed political opinion.  The Tribunal was satisfied the applicant did not flee India fearing Convention-related harm or that he went to Bangkok to hide from the Indian police as claimed. 

13. The Tribunal also considered more generally the situation if the applicant, a Muslim Tamil from India who claimed he believed in self-determination for Tamils, returned to India now or in the reasonably foreseeable future.  It found that the applicant had made no claims to fear harm for reason of his Muslim religion and no such claims were suggested on the evidence before it.  However the Tribunal considered the applicant's Tamil ethnicity and independent country information, finding no independent evidence to suggest that Muslim Tamils who believed in self-determination for Tamils suffered harm for their belief in India or in Tamil Nadu and that information to which it referred stated that Indian citizens were able to express their political and religious views.  The Tribunal was satisfied that India had in place reasonable measures to protect the lives and safety of its citizens and did not accept that the applicant had a well-founded fear of being persecuted for reasons of real or imputed political opinion or for any other Convention reason if he returned to India.

14. The applicant sought review by application filed in this Court on 2 March 2009.  The first ground in the application is that the Tribunal did not consider all the integers of the application.  As conceded by the first respondent, it is now well established that a failure by the Tribunal to deal with a claim raised by the evidence before it, which would or could be dispositive of the review, may constitute a jurisdictional error (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]). However there are no particulars of this ground in the application and a fair reading of the Tribunal's reasons for decision disclose that it considered all of the evidence before it, including the applicant's claims made before the delegate and the Tribunal and claims which may have been seen to arise on the material before it (based for example on the applicant's situation as a Muslim Tamil from India).

15. The Tribunal considered and rejected the claims that the applicant made based on its adverse credibility findings.  It considered and rejected the more general claims that might be seen to arise from the fact that the applicant was a Muslim Tamil from India on the basis of independent country information to which it referred.  Ground one as expressed is not made out.

16. Ground two in the application is that the Tribunal did not put to the applicant the adverse material which formed part or the whole of the reasons for decision. It appears that this may be intended to be a contention that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) although when given an opportunity to elaborate on his grounds in oral submissions today the applicant had nothing to add to this ground and it was not addressed in the written submissions that he filed. As set out above, it appears from the Tribunal's account of what occurred in the Tribunal hearing that it put information to the applicant at a resumed hearing, apparently in accordance with s.424AA of the Act (see s.424A(2A)), but in any event it is not necessary to consider this issue further as it is apparent from all of the material before the Court that information that might fall within s.424A was information that would come within the exceptions in s.424A(3) of the Act, being information that the applicant gave during the process that led to the decision under review or information that he gave for the purposes of his application and independent country information.

17. The Tribunal was not required to put information that fell within the exceptions to s.424A to the applicant at the hearing or otherwise. Insofar as the Tribunal had regard to omissions in the information provided to the Department, this is not a case in which it is apparent that such omissions constituted information within s.424A(1) of the Act, bearing in mind the way in which the Tribunal analysed the inconsistencies (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). Ground two is not made out.

18. In addition, on 26 May 2009 the applicant filed written submissions.  It is not clear whether the submissions are intended to be an elaboration of ground one or a further ground.  They have been considered generally.  The matters raised in the written submissions were addressed by the first respondent in written submissions.  The applicant claimed that the Tribunal failed to consider that he was imputed with the opinion of the LTTE and that the applicant's father was associated with the LTTE and hence that the applicant would be “imputed with the opinion of the LTTE”. 

19. The Tribunal reasons for decision disclose that the Tribunal did consider the applicant's claims, based both on his claims about his own activities and his claims about his father's activities and associations.  However the Tribunal rejected those claims, having found that the applicant was not a witness of truth.  In addition it considered the claim that the applicant would be imputed with a political opinion or would have an imputed profile of membership of the TNLA or LTTE, but was not satisfied that he had suffered any harm for his support, imputed profile or membership of the TNLA or LTTE.  More generally, it did not accept that the applicant had a well-founded fear of being persecuted for reasons of his real or imputed political opinion or for any other Convention reason. 

20. The Tribunal also considered the applicant's claims based on his father's claimed involvement with or activities on behalf of the LTTE or TNLA, but rejected those claims, finding in particular that the authorities did not seek to harm the applicant because of his father's activities or seek to locate his father.  The Tribunal found not only that the applicant had no involvement with the LTTE in India, but also that he was not imputed to be an LTTE or TNLA supporter.

21. No jurisdictional error is established on the basis contended for in the applicant’s written submissions.  As no jurisdictional error has been established the application must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

22. The applicant has been unsuccessful and should meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 July 2009