SZNHT v Minister for Immigration
[2009] FMCA 682
•14 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 682 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.65 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 |
| Applicant: | SZNHT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 543 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 14 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 543 of 2009
| SZNHT |
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 dated 16 February 2009. The Tribunal affirmed 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 July 2008 and applied for a protection visa. He attended an interview with a delegate of the first respondent. He claimed to fear harm in India from members of the BJP and RSS because of his work with a charitable organisation known as the “Tippu Sultan Secular Sena Committee” in Kolar (the KTSS). He claimed that he became District President of the KTSS in February 2006. He also claimed that he was targeted because he actively supported the Congress Party and because he was a Muslim. He made claims about incidents including an assault in December 2005 and threats to his family in April 2008. He also claimed that after the May 2008 election thugs set fire to his shop. He claimed BJP and RSS members threatened to kill him and that he would not be safe anywhere in India.
A delegate of the first respondent refused the application for a protection visa. While accepting that the applicant was a low-level supporter of the Congress Party and a practitioner of the Muslim faith, the delegate found that there was effective State protection and that it was reasonable for the applicant to relocate within India. The applicant sought review by the Tribunal.
The applicant attended a Tribunal hearing on 27 January 2009. At the hearing he provided the Tribunal with copies of his passport and two identity cards.
In its reasons for decision the Tribunal set out the applicant's written claims and the claims made to the Department and at the hearing. The Tribunal summarised the applicant's claim as a claim to fear harm because of his political opinion and active support for the Congress Party in India and because of his Muslim religion. It outlined the applicant's claims of membership and involvement in the KTSS, that his charitable and political activity had attracted the enmity of the RSS and the BJP and that figures from those organisations had attacked and threatened him on a number of occasions.
The Tribunal expressed considerable doubt as to the credibility of the applicant's claimed involvement in the KTSS, finding that his description at the hearing of the organisation and his role in it was “notably uninformative and often vague”. The Tribunal found that the applicant gave “little impression” that he was speaking from first-hand experience or that he had any particular insights into the running of a large organisation (such as he claimed the KTSS was) or of campaigning for a political candidate. The Tribunal found that this was difficult to reconcile with the applicant's claims that he had been an active member of the organisation for five years and president of a large local branch since early 2006. In contrast, it found that the only part of his evidence at hearing which took on a more specific aspect was factual and statistical information about the outcome of the most recent State election in his State. The Tribunal found that this information was volunteered in considerable detail without the applicant needing to be asked and the Tribunal formed the view that he had been “assisted in doing so by at least some degree of rehearsal.”
The Tribunal also found it difficult to understand why there were conflicting accounts in the applicant's evidence about the name of the charitable organisation with which he claimed to have had such a close involvement. It found this uncertainty was incompatible with his claims about such involvement as member and in a senior executive role.
The Tribunal also expressed doubts about the credibility of the applicant's claims concerning the size and role of the KTSS. While accepting that the organisation existed, that its aims were charitable and that it operated in Kolar City, the Tribunal was not satisfied that it could be so large as to have 15,000 members in that city or that it had played a partisan role in local politics by supporting the Congress Party at elections. These claims were said to be inconsistent with the minimal references to the KTSS available through internet searching. The Tribunal also had regard to the lack of any substantiation from the applicant for these aspects of his claims. The Tribunal noted that there were no media references of any kind in the information before it to substantiate the applicant's claim of membership or presidency of a branch of the organisation. While the applicant claimed that there were newspaper reports from 2006, he had not provided those reports and there was no other substantiation for the claim.
On the basis of these doubts the Tribunal was not satisfied that the applicant's claims concerning the KTSS were credible and was not satisfied he was a member of that organisation or elected to the presidency of the local branch in 2006 as claimed. The Tribunal stated that it reached this conclusion having considered the two identity cards said to have been issued by the organisation in 2003 and 2006. Earlier in its decision it had described these cards and their appearance and content, in particular that while identical in format and layout, they were of notably different size and gave some appearance of having been produced on a colour photocopier. The Tribunal found, based on the physical appearance of these documents and its concerns about the credibility of the applicant's claims, that it was not satisfied that significant evidentiary weight could be placed on them.
The Tribunal then considered the applicant's claims to have suffered harm at the hands of the BJP or the RSS. It noted that there was no substantiation from any independent source and there were no hospital or medical records, despite the applicant's claim to have suffered a broken leg in one of those incidents. Nor were there any police reports, despite the applicant's claim to have reported some of the incidents to the police and to have obtained, in one case at least, a copy of a first information report. The Tribunal also observed that the applicant had produced no media references for any of the incidents and claimed that the media did not report them despite his alleged position as president of a branch of 15,000 members. It found the detail in this respect in his protection visa application amounted to “no more than simple assertions”, that his evidence about these incidents at the hearing was “generally vague and uninformative”, that he appeared uncertain about the detail of some of the incidents in his protection visa application and that his responses when asked about them were at times confused.
The Tribunal also regarded as implausible the applicant’s claim that people who made telephone threats to him sought anonymity by buying new SIM cards for their mobile phones instead of using public telephones. It was not satisfied that this claim was anything more than improvisation. The Tribunal was not satisfied that the applicant was targeted by the RSS or BJP at any time, that his leg was broken, that his business was burned, that he or his family received death threats or that he was forced to live in hiding or in any other way harmed as he claimed.
The Tribunal also considered the applicant's claims to fear harm at the hands of Hindus in his hometown because he was a devout Muslim. It noted that he had agreed at the hearing that he had never suffered harm in the past because of his Muslim religion, but argued that the situation had changed as a consequence of the BJP winning power for the first time and recent attacks based on religion. The Tribunal observed that there was no substantiation for these claims, although there were press reports about bomb blasts and arrests. However the Tribunal found nothing in the information before it to indicate that the applicant would be targeted for harm in his hometown because of his Muslim religion. Nor was it satisfied that his claim in relation to the BJP taking power nationally was more than mere speculation on his part or that there was anything to suggest he would be targeted for harm if that were to occur.
The Tribunal summarised its conclusion, in light of all the information before it, that it was not satisfied that the applicant was ever a political activist in support of the Congress Party of India either in his own capacity or in association with the KTSS. Nor was it satisfied that he was ever threatened or harmed by the RSS, BJP or anyone else in India for such a reason or because of any charitable work. It was not satisfied there was any reason to believe he would involve himself in such activities if he returned to his hometown and was not satisfied there was a real chance he would suffer serious harm on these grounds. Nor was it satisfied that the applicant had ever suffered harm because of his Muslim religion when in India or that there were any grounds for believing he would suffer harm for this reason if he were to return. It found that he did not claim to fear harm for any other reason and that no other reason was apparent on the information before it. It was not satisfied that he had a well‑founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this Court on 9 March 2009. He filed an amended application on 24 April 2009 and confirmed that he relied on the grounds in his amended application. The first ground is that the Tribunal “assumed the wrong assumption about my credibility according to the Migration Act.” The particulars to this ground are that there was no evidence to support the Tribunal's finding that “I am not satisfied that the applicant's claims concerning the organization are credible.”
This ground is not made out. Credibility is a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405). It has not been established that the Tribunal's findings were not open to it on the material before it for the reasons which it gave. As set out above, the Tribunal's adverse credibility finding was based on a number of matters, including the applicant's uninformative and vague evidence, his inconsistent evidence regarding the name of the KTSS and implausibilities in his claims regarding the size and role of the organisation as well as the lack of substantiating material. In that respect the Tribunal considered the two identity cards submitted but, as indicated above, was not satisfied that any significant evidentiary weight could be placed on them having regard to their physical appearance and concerns about the credibility of the applicant's claims.
Insofar as the applicant contended today that the identification cards were correct and appeared to take issue with the merits of the Tribunal decision, as I endeavoured to explain to him, merits review is not available in this Court. Ground one is not made out.
Ground two is that the Tribunal acted in excess of its jurisdiction as there was no evidence to support its finding that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
Under s.65 of the Migration Act 1958 (Cth) if the decision-maker is satisfied that the criteria for the class of visa applied for have been satisfied the decision-maker is to grant the visa. If not so satisfied the decision-maker is to refuse the visa. It is not the task of the decision-maker to prove that the applicant is not a refugee. It is well established that the proceedings before the Tribunal are inquisitorial. It is for the applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well‑founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78] per Kirby J).
In this case, as discussed above, the basis for the Tribunal's decision was its adverse credibility findings based on the applicant's vague evidence, perceived implausibilities in his claims and the unsubstantiated nature of his claims. For these reasons the Tribunal found that it could not reach the state of satisfaction required by s.65.
No jurisdictional error has been demonstrated in the manner in which the Tribunal approached its task in accordance with its obligations under the Migration Act. In particular it has not been established that there was no evidence to support the Tribunal findings in a manner constituting jurisdictional error.
The final ground is that the Tribunal failed to exercise its jurisdiction in that it did not put any weight on documents the amended application stated were submitted to the Tribunal. There are two categories of documents referred to in the amended application. The first category is the two KTSS identity cards. As the Tribunal recorded in its reasons for decision, on 11 February 2009 the applicant forwarded to the Tribunal two laminated identity cards said to have been issued by a particular branch of the KTSS in January 2003 and February 2006. The Tribunal summarised the content and appearance of those cards and expressed concerns about their appearance. The matters and the Tribunal's concerns about the credibility of the applicant's claims were the reasons the Tribunal was not satisfied that significant evidentiary weight could be placed on the cards.
The Tribunal considered whether to place any weight on these documents. It did not simply reject them because of the adverse view it took of the applicant's credibility (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49] per McHugh and Gummow JJ). It conducted an examination of the documents. The weight to be given to the applicant's claims and the evidence presented by him was a matter for the Tribunal to assess as part of its fact-finding function. No jurisdictional error is established in the manner in which it considered the identity cards. Insofar as the applicant takes issue with the Tribunal's conclusions in this respect, it is not for the Court to make factual findings in relation to the genuineness of the identity cards. Such matters are for the Tribunal (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259).
The second aspect of ground three contends that the Tribunal did not place any weight on a copy of a “First Information Report” (FIR). It appears that the amended application is suggesting that the applicant provided the Tribunal with a copy of a “First Information Report”. There is, however, no evidence before the Court to support any such claim. In oral submissions today the applicant expressed his concern as a concern that he had not time to obtain further documentation beyond the identity cards he provided to the Tribunal.
Insofar as it was intended to be contended that the applicant had provided a “First Information Report” to the Tribunal, that is inconsistent with the Tribunal account of what occurred in the Tribunal hearing and there is nothing in the material before the Court to support any such claim. I note in that respect that at a directions hearing the applicant was given the opportunity to file and serve affidavit evidence, including any transcript of the Tribunal hearing, by a specified date. He has not done so and the only evidence before the Court about the conduct of the Tribunal hearing is the Tribunal reasons for decision.
There are a number of references to the applicant referring to a “First Information Report” in the Tribunal reasons for decision. First, in relation to a claimed attack in December 2005 the Tribunal recorded that the applicant stated he had gone to the police to lodge a “First Information Report”, but the police said the incident was vague, and then: “Asked if he had the FIR he said it must be in the police station. Asked if he had not been given a copy he said he probably had been.”
In relation to the claimed incident in 2008 of the burning of his business and threats, the Tribunal recorded that it asked the applicant about any contact with the police, that he had said he had given the police telephone numbers and names of people who made threats, that they had contacted these people but they denied any involvement and that he had discovered this on returning to the police station three or four days after his initial complaint. The Tribunal continued “Asked if he had received an FIR regarding this incident he said he had a copy, and that it was at home.”
The Tribunal recorded that at the conclusion of the hearing it invited the applicant to comment on information put to him during the hearing, including the absence of any substantiation for his claims and indicated that he could respond in any way he wished and could have more time to do so if necessary. The applicant said he did not wish to reply in writing and that everything he had claimed was the truth. The Tribunal also recorded that the applicant said he could provide documentary evidence from India in support of his claims and “it was agreed” that he could have until 13 February 2009 in which to do so. On 11 February 2009 the applicant forwarded to the Tribunal the two laminated identity cards to which I have referred.
There is no evidence on the material before me of the provision of any other information to the Tribunal after the hearing. Nor is there any evidence in the material before me of any request by the applicant for additional time to provide information.
I am not satisfied on the material before me that the applicant provided a copy of a “First Information Report” to the Tribunal. The Tribunal expressly noted that the applicant had provided no police reports to support his claims, despite having claimed to have obtained a copy of at least one “First Information Report”. Moreover, it has not been established that the Tribunal failed to consider the applicant's claims in relation to making police reports and obtaining a “First Information Report” in the course of making its determination.
When asked to explain his concern that the Tribunal had not given him enough time to provide it with additional information, the applicant suggested that this had occurred at the Tribunal hearing and that the time allowed was insufficient. He did not claim that he had made any request for further time after the Tribunal hearing. There is no evidence of what occurred in the Tribunal hearing other than the Tribunal reasons for decision and no evidence that the applicant sought further time to provide documents or indeed any indication in the material in the Court Book of any difficulties in relation to obtaining documents being brought to the attention of the Tribunal. The Tribunal allowed the applicant additional time to provide documentary evidence, notwithstanding that he had not sought additional time to comment on the adverse information put to him. On the material before the Court the applicant's claims in this respect do not establish any jurisdictional error on the part of the Tribunal in its decision or procedures. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the material before the Court to warrant a departure from the normal principle that the unsuccessful applicant 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 thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 23 July 2009
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