SZNHN v Minister for Immigration
[2009] FMCA 702
•15 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 702 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A, 425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 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 SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZNHN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 521 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 521 of 2009
| SZNHN |
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 2 February 2009 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 June 2008 as the holder of a tourist visa and in July 2008 applied for a protection visa. In a statement accompanying his protection visa application he claimed to be an active member of the DMK (the Dravidian Progressive Federation), a political party that actively supported the rights of the Dalit (scheduled tribes) caste. He claimed that as a result he was persecuted and assaulted by members of the higher castes who disapproved of his support for Dalit rights and his participation in protests about a wall he claimed was erected in 2008 (sic) between high caste and scheduled caste areas in a village. He claimed that after his departure from India a group of armed high caste people had gone to his home and inquired about his whereabouts, assaulted his wife and that the police were not willing to protect her when she sought their assistance.
The applicant attended a Departmental interview and provided further information, in particular about the wall and his presence when it was demolished in March/April 2008. His application was refused by a delegate of the first respondent who found that the applicant's claims were vague, unconvincing and unsubstantiated by any evidence. The delegate found, in any event, that State protection was available and that relocation was a viable alternative.
The applicant sought review by the Tribunal. He did not provide any additional statement or supporting documentation to the Tribunal.
The Tribunal invited the applicant to attend a hearing on 18 December 2008. He did so and provided the Tribunal with a copy of his passport. By letter under s.424A of the Migration Act 1958 (Cth) of 24 December 2008 the Tribunal put to the applicant information consisting of certain inconsistencies between his responses to the delegate in the Departmental interview and in his protection visa application and inconsistencies between certain independent country information and his claims. The applicant was given until 21 January 2009 to respond and advised that if he could not respond by that time he may ask the Tribunal in writing for an extension of time. On 20 January 2009 the applicant wrote to the Tribunal providing comments as requested. He claimed that he was deeply traumatised being a victim of persecution and had stress and ongoing difficulties including recollection of past incidents, confusion and memory loss. He sought forgiveness for inconsistencies between his evidence to the Department and the Tribunal and claimed that what he said in his initial statement was true and correct.
In its reasons for decision the Tribunal set out the applicant's claims in his application, the Departmental interview and at the Tribunal hearing as well as the s.424A letter and the response and referred to relevant country information, in particular in relation to the wall between the high caste areas and the Dalit areas.
In its findings and reasons the Tribunal concluded that it did not find the applicant to be credible on some key aspects of his claims. It was not satisfied that he left India because of the fear of persecution described in his application and evidence before the Tribunal. It set out inconsistencies, implausibilities and contradictions that led it to conclude that the applicant was not truthful or credible, including inconsistent evidence from him about whether he had a membership card for the DMK and his failure to provide any documentation supporting that claim or his claim to have been hospitalised. In those circumstances the Tribunal was not satisfied that the applicant was a member of the DMK. It was of the view that if the applicant had been assaulted as claimed and admitted to hospital and treated for two days he would have provided such documentation It was not satisfied that he was assaulted or treated for an assault as claimed.
The Tribunal also had regard to inconsistencies between the applicant's description of the caste wall and the independent country information in relation to when the wall was erected and its dimensions. The applicant had stated that the wall was erected in 2008. Country information stated that it was erected in 1989 or 1990 and that it was 12 feet high and 600 metres long. The applicant claimed it was about his height (5ft 8 inches) and 200 – 300 feet long. The Tribunal considered the applicant’s response when these issues were raised with him during the hearing. The Tribunal found the applicant's explanations relating to this incorrect information (that the police would not allow him to go there and that he was only interested in the demolition) to be unpersuasive.
It also had regard to inconsistencies in relation to whether and how the applicant had reported a claimed assault to police and as to what occurred in the incident when he claimed that a group of people had come to his family home after he had left India. The Tribunal was not satisfied that the applicant's wife was approached or questioned or harmed. The Tribunal also had regard to the applicant's evidence that he continued to live at his home address prior to leaving India and continued working for the party after a claimed assault. It was of the view that if he had been in fear as claimed, he would not have continued to live at his home address in India.
These matters collectively led the Tribunal to find that the applicant was not credible. It rejected his claim he was a member of the DMK in India and therefore all the claims that flowed from that claim, including any claims in relation to involvement in demolition of the wall, injury, assault and warnings and that he departed India because of a fear of persecution.
The Tribunal considered the applicant's claim in response to the s.424A letter that he was suffering from stress, was deeply traumatised and had difficulty recalling what had happened. However it also had regard to the fact that when it had asked the applicant questions in the hearing it would expect him to answer in relation to the wall, it was evident that he knew very little about it. It was of the view that his lack of knowledge in relation to the wall was not because he was traumatised or had difficulty recalling, but because he had not seen it and had not been involved in activities in relation to the wall or its destruction. It was the Tribunal's view that the inconsistencies arose because the applicant had forgotten what he mentioned in his protection visa application and in his Departmental interview. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to India.
The applicant sought review by application filed in this Court on 5 March 2009. He relied on an amended application filed on 19 May 2009. There are two grounds in the amended application. The first is that the Tribunal failed to exercise its power by failing to consider claims that arose on the material before it, in particular a claim that the applicant faced or risked persecution by “political party thugs opposed to the DMA (sic) and the political parties oppose the people supporting the low cast (sic) people”. This ground is not made out on the material before the Court.
The evidence of the applicant's claims to the delegate in the statement accompanying the protection visa application and the Tribunal's account of the Departmental interview as well as the evidence of the Tribunal hearing indicate that the applicant's claims did not relate to political opponents of the DMK but rather to high caste people. This is apparent from the applicant’s written statement, the delegate's summary of the interview, the applicant's response to the s.424A letter (which again referred to an attack by high caste people) and the Tribunal's account of the applicant's claims made to the delegate and also at the Tribunal hearing.
In any event, in its findings and reasons the Tribunal considered the applicant's claim that he was a member of the DMK party, but having rejected that claim, rejected all claims that flowed from that claim. In those circumstances, even if the applicant had raised a claim to be at risk from political opponents of the DMK, as the first respondent submitted, the Tribunal would not have been required to make a finding on that claim because it rejected the factual premise on which such a claim rested (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630).
The second ground in the amended application is that the Tribunal did not call the applicant for a second hearing after the s.424A letter and failed to deal with the critical matters that arose in the s.424A letter by calling for a second hearing. In oral submissions the applicant contended that he had asked the Tribunal at the Tribunal hearing for a second hearing and that had he had that hearing he would have been able to provide documents.
Dealing first with the ground as it appears in the amended application, as set out above, the s.424A letter raised a number of inconsistencies between the applicant’s claims in his protection visa application, the Departmental interview and at the Tribunal hearing and also inconsistencies between his claims and independent country information. However those inconsistencies do not amount to fresh determinative issues such as to trigger any obligation to invite the applicant to a further hearing under s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).
It is apparent that, according to the Tribunal account of what occurred in the Tribunal hearing, a number of these inconsistencies were explicitly raised with the applicant at the hearing, in particular in relation to his claims about the wall and country information, whether an assault was reported to the police and whether his wife had been assaulted.
Other inconsistencies resulted from the applicant's responses in relation to matters such as how he lost a membership card and whether he was present when the wall was demolished. These were also matters discussed at the hearing. The fact that the Tribunal identified inconsistencies between such claims and earlier accounts is not such as to give rise to an obligation to invite the applicant to a further hearing to address such inconsistencies. To the extent that such matters were in fact information within s.424A(1) of the Act, they were put to the applicant under that section.
In that respect, for the sake of completeness, I note that in his original application the applicant asserted that the Tribunal breached s.424A and failed to follow proper procedures. This unparticularised ground does not establish jurisdictional error.
Insofar as the Tribunal may have gone beyond the requirements of s.424A, in that it invited the applicant to comment on inconsistencies, independent country information, information provided at the Tribunal hearing and in his protection visa application, that would not establish a jurisdictional error (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 in relation to the issue of whether inconsistencies constitute information and note that the other categories of information are within the exceptions in s.424A(3) of the Act). The Tribunal recorded that it put to the applicant matters addressed orally in the interview with the delegate.
Nor is there any evidence before the Court to establish that the Tribunal otherwise failed to follow proper procedures. In that respect I raised with the solicitor for the first respondent the issue of s.424 of the Migration Act, albeit that it was not referred to in the applicant's application or amended application, because there is material in the Court Book indicating that the Tribunal made a request to the Secretary of the Department of Immigration for documents consisting of the applicant's visitor visa application, although such material does not appear to have played any part in the Tribunal reasons for decision. However, as submitted for the first respondent, it is not apparent that there was any failure to comply with s.424(3) of the Act because these are not circumstances in which s.424(2) is activated. There are a number of reasons for this conclusion arising out of the recent decision of the Full Court of the Federal Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407, in particular the fact that the Tribunal sought documents and not information and therefore not additional information within s.424(2) of the Act. The Full Court held in SZLPO (at [110] – [114]) that there is a distinction between documents and information and that s.424(2), as it stood at the relevant time, does not apply to an invitation to a person to supply a document to the Tribunal. I also note that in SZLPO the Full Court took the approach that additional information within s.424(2) is information additional to information previously provided to the Tribunal by the invitee and considered, but did not determine the issue of whether the word “person” in s.424(2) means only a natural person. In this case the request was made to the Secretary of the Department of Immigration, although it appears that a request was also made to NSW OP‑RRT Liaison Unit at a particular email address. Consistent with the view of the Full Court in SZLPO, such an approach would not be a request made to a natural person. In any event, the distinction between a document and information is dispositive.
In oral submissions today the applicant raised a number of other issues. First he contended that the Tribunal did not properly investigate his claims. He reiterated this contention in concluding submissions. However, as Gummow and Hayne JJ stated in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], it is for the applicant to advance whatever evidence or argument he or she wishes to advance in support of a contention that he or she has a well-founded fear of persecution for a Convention reason and the Tribunal must then decide whether that claim is made out. The Tribunal is not under an obligation to conduct a further investigation in the manner that appears to be contended for by the applicant. Nor is it obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937). This is not a case in which the circumstances are such as to establish that the Tribunal undertook to make further inquiries or such as to give rise to such an obligation.
The applicant also contended that he was in danger if he returned to India. However, as I tried to explain to him, such a claim seeks merits review and merits review is not available in this Court.
As referred to above, the applicant claimed that if he had had a further opportunity to attend another hearing he could have obtained further documents. He suggested that he had sought a further hearing in the course of the Tribunal hearing and took issue with the fact that he had not been asked to attend or given the opportunity to attend a second hearing. There is no evidence before the Court that the applicant did request a further hearing. There is no transcript of the Tribunal hearing, notwithstanding that the applicant was given the opportunity at a directions hearing to file a transcript, and there is nothing in the Tribunal's account of the hearing to support a claim that the applicant sought either time to provide further documents or a further hearing. It is notable that at the conclusion of the hearing the Tribunal recorded that it asked the applicant if he wished to add anything further in relation to his claims and he is recorded as stating that if he went home his life was in danger and that was why he made the application.
In any event, the applicant should have been on notice that the evidence in support of his claims was insufficient. He had a number of opportunities to provide further evidence. The delegate’s decision referred to the lack of substantiation for the applicant's claims. The applicant had the opportunity to provide supporting information to the Tribunal prior to and at the time of the Tribunal hearing. In the course of the hearing issues were raised with him in relation to substantiation of his claims, for example in relation to whether he had any medical documentation, a membership card or any proof in relation to the claimed assaults. The applicant had a further opportunity in response to the s.424A letter (which raised issues in relation to his claims of membership of the DMK and assaults and medical treatment) to provide further information or, if it was not available in Australia, to seek time to provide further information. He did not do so. I note also that the s.424A letter informed him that if he wanted to seek an extension he could do so in writing. There is no evidence that he did so and indeed the applicant did not suggest that he did so. In these circumstances, as the first respondent submitted, it has not been established that there was any lack of procedural fairness. In particular it is not apparent that there has been any failure by the Tribunal to comply with any of its mandatory statutory obligations.
The applicant also claimed that the Tribunal did not look at whether he would fear for his life. On the contrary, the Tribunal addressed the issue of whether he had a well-founded fear of persecution for a Convention reason if he returned to India, but having rejected his claims on the basis of its adverse credibility finding found that it was not satisfied that this was the case. No jurisdictional error is established on this basis. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,800, which is considerably less than the amount provided for in the Federal Magistrates Court Rules. The applicant told the Court that he did not have sufficient income. However in the circumstances of this case his lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 July 2009
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