SZNIR v Minister for Immigration

[2009] FMCA 638

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 638

MIGRATION – RRT decision – Indian BJP supporter claiming persecution in Gujarat – disbelieved by Tribunal – no arguable grounds for judicial review – absence from hearing inadequately explained by medical certificate – application dismissed in absence of applicant.

Federal Magistrates Court Rules 2001 (Cth), r.13.03C(e)
Migration Act 1958 (Cth), ss.424A, 424A(3)(a), 425

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

First Applicant: SZNIR

Second Applicant: SZNIS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 623 of 2009

Judgment of: Smith FM

Hearing date: 30 June 2009

Delivered at: Sydney

Delivered on: 30 June 2009

REPRESENTATION

Counsel for the Applicants: No appearance by or on behalf of the Applicants

Counsel for the First Respondent: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicants must pay the first respondent’s costs in the sum of $3,900. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 623 of 2009

SZNIR

First Applicant

SZNIS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a husband and wife from India who came to  Australia in July 2008 on visitors visas.  They applied for protection visas on 12 August 2008, with the wife making no separate refugee claims.  I shall refer to the husband as ‘the applicant’. 

2. After an interview by the delegate, the visa applications were refused on 10 November 2008.  In particular, the delegate thought that the applicant’s evidence on interview was inadequate to satisfy the delegate as to the truth of the claims made. 

3. The applicant appealed, and attended in Griffith a video hearing with the Tribunal.  The Tribunal formed a similar opinion that the applicant’s claims were not credible.  The Tribunal’s decision was made on 18 February 2009. 

4. The applicant then sought judicial review in this Court, and he attended a first court date on 7 April 2009.  I then made directions allowing him an opportunity to file an amended application, further evidence, and written submissions, and fixed the matter for a final hearing today.  The applicant was clearly told that if he did not attend the hearing, his application would be dismissed. 

5. The applicant has received advice under the free legal advice scheme.  He has also received the first respondent’s written submissions, with a covering letter confirming that the Minister would be seeking the dismissal of the proceedings if the applicant did not attend the hearing. 

6. Neither of the applicants, however, attended today’s hearing.  There has been no communication to the Court explaining their absence, or making application for an adjournment, apart from a document which was received at the Court’s registry.  This was first received on 25 June 2009 by way of facsimile from “Humpty Doo LPO” and purports to be a medical certificate signed by a doctor in the Northern Territory, Dr Salahuddin Khan.  Its contents are:  

   THIS IS TO CERTIFY THAT 

   [Mr Applicant] 

   IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD 

   Wednesday, 24 June 2009   TO   Wednesday, 1 July 2009   INCLUSIVE 

   He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION 

   This Certificate was completed on Wednesday, 24 June 2009 

7. This is an unsatisfactory record of any incapacitating medical condition suffered by the applicant.  It gives no diagnosis made by any medical practitioner.  It does not show whether Dr Khan or any other medical practitioner has examined the applicant.  It does not indicate what medical treatment has been prescribed for the applicant, nor who prescribed it.  It gives no opinion in relation to the applicant’s medical capacity to attend a short hearing in a court.  In short, it provides no satisfactory evidence in support of an adjournment on medical grounds. 

8. Moreover, it does not indicate where the applicant currently lives, and whether this is in the Northern Territory or in Griffith, where the applicant gave his address for service.  Some confusion about this arises from the subsequent receipt at the Registry of the original medical certificate, in an express post envelope which states that the sender is living at the residential address in Griffith, which the applicant had given the Court on the documents he has filed and on the information sheet completed at the first court date. 

9. Assuming that the forwarding of this document to the Registry conveys a request by the applicant for the Court to adjourn his hearing, I am not satisfied that he has established any acceptable reason for his absence and for adjourning the hearing.  The ‘medical certificate’ is far from establishing a medical excuse for his absence today. 

10. If the applicant has travelled to the Northern Territory for the period of his court hearing, rather than to Sydney or a place more accessible to Sydney, then he has not explained why this was reasonable, in circumstances where one might assume that a successful pursuit of the present court case was of the greatest importance to the applicant’s desire to stay in Australia.  

11. Notwithstanding the above, I might have been inclined to adjourn the hearing had I been able to detect any merit in the application.  However, I have not.  As I shall explain, the refugee claims made by the applicant were most unpersuasively presented to the Tribunal.  More pertinently, his grounds in support of judicial review are lacking in arguable merit. 

12. In all the circumstances, I consider it probable that the applicant is attempting to stall his court case so as to protract his stay in Australia in the face of an inevitable dismissal, rather than having genuine and acceptable reasons explaining his absence from the hearing today. I therefore propose to proceed with the hearing in his absence pursuant to r.13.03C(e) of the Federal Magistrates Court Rules 2001 (Cth).

13. Turning to the merits of the matter, the applicant’s refugee claims were set out in a statement attached to the protection visa application.  He indicated that he was a person of Hindu religion conducting a shop in a town in Gujarat.  He said there were a majority of shopkeepers supporting the BJP political party, but that the applicant initially supported the Congress Party.  However, his attachment to that party changed after there was an attack by Muslims on the procession of the chariot of Lord Krishna at the festival of Rathyatra in his town, followed by “very bad communal riots”. 

14. The applicant’s statement did not suggest that he had been directly involved in or affected by these riots, but said:  

    After that incident our market got direct effect we had bit strange atmosphere in market I had participated very actively to help Hindu people during riots and I came into eyes of Muslims who were supporters of Congress in fact I was supporter of Congress but as a Hindu I did some work. 

    After that riots all BJP supporters of our market came to me and talked to me that I should not support Congress I am Hindu and I should be aware that Congress supports Muslims and Muslims are engaged with terrorism and other nasty activities etc etc. that incident create good effect on my mind me too thought same as like them that I should support BJP and gradually I started keeping good relation with BJP people and attending their party meetings and programs these thing came into eyes of Muslims they told me not to go to BJP I said its my own wish and they started harassing me indirectly like making bad comments to my customers talking bad things about me in market and started spoiling my reputation so I had quarrel with them then this problem was increased more and more we were having lots of troubles frequently then we had a fight too. 

    Gradually some people complained to other leaders of Congress who were Muslims initially It was problem of Congress and BJP but eventually it took a form of cold war between Hindu and Muslim and I am trapped in that very badly because I had a fight with a person who was nephew of that Muslim leader who was having some connection with antisocial elements of Mumbai.  They started threatening me to kill me or to sell my shop to them I did not take it seriously but after some time I was attacked by some unknown people.  I was badly injured and hospitalized then my family members were scared they forced me to sell my shop, close business and move some where but I was not ready to loose my business but situation was scared and serious as I fought with that person who was Muslim leader’s nephew. 

    Again they people attacked on me after a month at that time they threatened me to leave market, my business and that area.  I was very scared I stopped going to shop for some days but I was getting threatening phone calls at home so was not able to sleep or live life peacefully 

    Then my friend arranged visa of Australia for me. My wife requested me to move to Australia to save my life and we came here because my life is not secure in my country. It is my humble request to Australian Government to provide me protection and save my life.

15. No supporting evidence for these claims was provided to the Department of Immigration, other than some photographs of the applicant’s shop and some newspaper clippings concerning a bomb explosion in Ahmedabad after the applicant had come to Australia. 

16. The delegate interviewed the applicant, and concluded that he had provided insufficient details of his claim of harassment, including being unable to name the person who was the nephew of a Muslim leader whom he claimed to have fought with.  Other claims also lacked detail, and there was an absence of evidence.  The delegate thought that, if the applicant was now a supporter of BJP, he would not be in need of Australia’s protection, since the BJP held power in Gujarat. 

17. On appeal, the applicant was questioned about his claims at the video hearing held by the Tribunal.  He gave a significantly different version of events, including that he had been attacked during the riot, and had suffered serious injuries requiring 25 days in hospital.  When inconsistencies were put to him he claimed that there were other attacks also.  The Tribunal very thoroughly put to the applicant various concerns about his inconsistent evidence, and also its inconsistency with relevant country information. 

18. In its decision under the heading ‘Findings and Reasons’, the Tribunal said that it did not accept as true that the applicant had left his country because of the harm that he claimed, nor that he feared to return there. It said:

    It finds the first applicant’s testimony internally inconsistent, inconsistent with independent country information and lacking in detail 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. 

19. The Tribunal referred to the applicant’s description of the Muslim attack on the Hindu Rathyatra festival in 2007 in his town, and noted that it could find no independent country information corroborating this event, which it would have expected to have found since the applicant claimed that 100 to 200 people were hospitalised. The Tribunal further noted that the applicant had provided conflicting evidence concerning his involvement in that event, including whether he had been injured in its course. Based on these two defects in the applicant’s claims, the Tribunal did not accept that he had been attacked and sustained injuries, and it found him not to be a witness of truth in relation to those claims.

20. The Tribunal considered documents submitted by the applicant after the hearing, purporting to corroborate his injuries and an attack.  It noted that neither of the documents corroborated the circumstances of an injury and attack on him on 21 July 2007.  It did not accept them as corroborating the history claimed by the applicant. 

21. The Tribunal addressed the applicant’s claims to have been associated with the Congress Party, and found his evidence inconsistent and unbelievable.  It found that it could not rely on a certificate purporting to establish a membership of that party. 

22. The Tribunal referred to other inconsistencies in the applicant’s evidence to the Department and to it, concerning whether he went into hiding and whether he was threatened and attacked on more than one occasion after the festival.  It pointed to clearly unsatisfactory aspects of his evidence, and for all the reasons it had pointed to, it did not accept the central elements of his claims to have been persecuted and to fear persecution. 

23. The Tribunal also referred to information showing that 93 % of the population in the applicant’s town was Hindu, and that the BJP party, a Hindu nationalist party, was in power in the State.  The Tribunal found that the applicant would be able to obtain adequate and effective protection as a Hindu and supporter of the BJP, if he returned to India.  For that reason, as well as the lack of credibility of his claimed history, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. 

24. The applicant’s application to the Court contains three grounds, which have been repeated in an amended application with an additional paragraph.  They make use of unhelpful precedents commonly seen in this Court.  The grounds in the amended application are: 

    1.The Tribunal did not give to the applicants before the hearing the information that it had which called ‘Background of information’ (pages no. 12 to 17). The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.

    2.The Tribunal did not use the country information as aspecific, however, the general information gathered by the Tribunal considered to weight against the applicants claim in the final outcome.  The Tribunal used the all information for matter of reasoning and evaluation of the case for protection visa. 

    3.The Refugee Review Tribunal denied the applicants procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters. 

    4.The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error. 

25. There is no substance to the contention in the first ground that there was a breach of s.424A of the Migration Act 1958 (Cth), by reason of the Tribunal’s reference to background information. This is clear, since s.424A(3)(a) excludes from the ambit of that section information which is not specifically about the applicant.

26. Ground 2 appears to be an embellishment of the first ground, but I am unable to give it any meaning as a contention of jurisdictional error.  I can find nothing reflective of any factual or legal error in the Tribunal’s references to general country information in the course of its reasoning. 

27. Ground 3 appears to allege that there was a breach of procedural fairness due to unreasonable reasoning by the Tribunal.  Putting aside the doctrinal problems with this contention, I am unable to detect in the Tribunal’s reasons any support for a contention that its reasoning reflects such unreasonableness or implausibility or irrationality as to evidence any jurisdictional error (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59). To the contrary, it appears to me that the Tribunal arrived at conclusions in a carefully considered statement of reasons, which presented abundant rational reasons for disbelieving the applicant’s claims to have been persecuted in India.

28. It appears to me that the applicant was given ample opportunity to be heard in respect of all the concerns of the Tribunal, since this appears from the Tribunal’s description of the hearing. I can find no substance in the contention of procedural error giving rise to breach of procedural fairness, in so far as obligations are reflected in the provisions of the Migration Act, including s.425.

29. Ground 4 of the amended application is a frequently seen contention, which I am unable to give meaning to. On one view, it invites the Court to form its own view about the merits of the applicant’s satisfaction of the Convention definition, but this is not the task of the Court. In so far as the present Tribunal was obliged to consider whether the applicant’s claims satisfied the Convention definition, it has done so by addressing whether it was satisfied as to the history of persecution presented by the applicant. It was a logical and clearly permissible approach by the Tribunal to consider that issue first (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). Having rejected the claimed history, there were no further issues required to be addressed by the Tribunal. I therefore can find no grounds for alleging any misapprehension or misapplication of the Convention definition in the statement of reasons of the Tribunal.

30. For the above reasons, I consider that the applicant’s application to the Court is lacking in arguable grounds.  For that reason, the application should be dismissed on its merits. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  9 July 2009