SZNJH v Minister for Immigration
[2009] FMCA 578
•19 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 578 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A, 424AA, 424B, 425A, 441A, 441C |
| Minister for Immigration v Jia Legeng (2001) 205 CLR 507 SZMCD v Minister for Immigration [2009] FCAFC 46 VFAB v Minister for Immigration (2003) 131 FCR 102; [2003] FCA 872 |
| Applicant: | SZNJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 695 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 19 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The Court directs that the applicant’s name is not to appear on the transcript of proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 695 of 2009
| SZNJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 24 February 2009. The Tribunal affirmed a decision of a 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 conveniently summarised in the Minister's written submissions filed on 5 June 2009. I adopt as background for the purposes of this judgment, with amendments, paragraphs 2 through to 13 of those written submissions:
The applicant, a citizen of India, arrived in Australia on a business (short-stay) visa on 5 July 2008 (court book “CB” 15) and lodged an application for a Protection (Class XA) visa with the Department of Immigration on 6 August 2008: CB 1-27. His written claims were contained in a two-page typed statement accompanying his application for a protection visa: CB 28-29.
The applicant claimed he became involved in politics at University and became involved in the People’s War Group (PWG). He was responsible for motivating other students, handing out pamphlets and organised secret meetings. He claimed he later became aware of the Party’s ideology and associations and became disillusioned. He tried to end his involvement with the PWG. He claimed that after he failed to attend the District Headquarters as directed, people came to his house and threatened him and his family. He claimed he sought assistance from the police but was told they could not protect him. He was then suspected by the PWG of being a police informer.
The applicant was invited to an interview before a delegate of the Minister (CB 30-31) which he attended on 18 September 2008. The delegate recounted the applicant’s evidence at the interview (CB 36A) and in a decision dated 29 October 2008 refused the application for a Protection (Class XA) visa. The delegate found that the applicant had provided “scant and vague information” about his claims and doubted the veracity of his claims. The delegate found further that the stability of the applicant’s employment and residence was inconsistent with his claimed profile of having suffered persecution and that he was not a credible witness: CB 36-41.
The Tribunal proceedings
The applicant sought review of the delegate’s decision by lodging an application with the Tribunal on 21 November 2008: CB 42-45.
On 15 December 2008, the Tribunal sent the applicant a letter inviting him to attend a hearing: CB 48-49. The letter was sent to the last address for service provided by the applicant to the Tribunal in his application for review (CB 44) and was dispatched by prepaid post, which is an approved method under s.441A(4) of the MigrationAct 1958 (Cth) (“the Migration Act”) for the Tribunal to dispatch documents.
The letter invited the applicant to appear before the Tribunal at a hearing on 9 February 2009. As required by s.425A of the Migration Act, the invitation notified the applicant of the day on which, and the time and place at which he was scheduled to appear before the Tribunal. The period of notice of the hearing date satisfied the requisite prescribed period, that is, 14 days after the date that notification of the hearing is received (reg.4.35D of the Migration Regulations1994). ‘Notification’ is taken to have been received seven working days after the date of the document (s.441C(4)), so the applicant is taken to have been notified on 25 December 2008.
The applicant accepted the hearing invitation (CB 50-51) and attended the hearing held on 9 February 2009: CB 54-55, 71-73, paragraphs 26-41. The applicant also provided a copy of pages from his passport to the Tribunal at the hearing: CB 56-62.
The Tribunal’s decision
The Tribunal set out and considered the applicant’s claims made to the delegate (CB 69-71, paragraphs 21-25) and the evidence he gave at the Tribunal hearing (CB 71-73, paragraphs 26-41).
The Tribunal identified a number of “contradictions, inconsistencies and implausibility” (sic) in the applicant’s evidence to support its conclusion that he was “not truthful or credible” (CB 74-75, paragraph 49) and to reject all of his key claims: CB 74, 75, paragraphs 48, 51. The Tribunal outlined five bullet points to support its conclusions in this regard: CB 74-75, paragraph 49. Specifically, it found that the applicant:
· Had given inconsistent oral evidence about when he moved to Hyderabad.
· Raised a new claim for the first time at the Tribunal hearing about an assault in 2001 and despite claiming to have been seriously assaulted by PWG members in 2001, he also gave evidence that he arranged PWG meetings in his village in 2001 and 2002 and had left the group in 2002.
· Raised a new claim for the first time at the Tribunal hearing that ten men came searching for him with guns and knives; his explanation for not raising this claim was held to be “unconvincing” and the Tribunal found he had concocted his evidence.
· Had given inconsistent evidence in his protection visa application and at the Tribunal hearing about where he had lived.
· Lacked a subjective fear of harm given his delay in departing India after his passport was issued on 11 December 2007. Moreover, a notation in his passport indicated that he had held an earlier passport issued on 30 August 2002. The Tribunal found the applicant’s purported explanations of these matters “unpersuasive and unconvincing”.
On the basis of its adverse credibility findings the Tribunal did not accept the applicant’s key claims.
On this basis the Tribunal found the applicant did not have a well founded fear of harm for a Convention reason and was not a person towards whom Australia owed protection obligations: CB 76, paragraphs 52-53.
The applicant relies on a show cause application filed on 24 March 2009. There are four grounds in that application which I incorporate in this judgment:
1. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were no obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
2. The applicant satisfies 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.
3. The [Tribunal] has failed to investigate my claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 24 February 2009 was effected by actual bias constituting judicial error.
4. The Tribunal failed to comply with s.424 of the Migration Act [1]958.
Particulars
(a) At the hearing, the Tribunal invited the applicant to give information additional to that which the Tribunal had obtained.
i. The Tribunal asked the questions which called for information which the applicant had not already provided to the Tribunal, or which the Tribunal had not obtained in another way.
(b) The invitation was not given the accordance with s.424(3)(a) and 424B of the Migration Act:
i. The invitation did not specify the way in which the additional information may be given.
ii. The invitation did not specify the period within which the information was to be given.
The application is supported by a short affidavit which I received, subject to treating paragraph 3 of it as a submission. I also have before me the court book filed on 20 April 2009.
The applicant's submissions focused on alleged interpretation problems at the hearing. The court book discloses that the applicant accepted an invitation to attend a hearing before the Tribunal and that the hearing took place on 9 February 2009. The applicant was assisted by a Telugu interpreter. The applicant asserts that the interpreter was elderly and had difficulty hearing. He asserts that at the start of the hearing before taking the oath the interpreter pointed out his difficulty. He asserts that because of the interpretation problems that followed there was a good deal of confusion between him, the interpreter and the presiding member. The applicant had not raised these assertions previously. Neither is there now any evidence to support them.
The Tribunal's hearing record (CB 55) shows that the hearing ran for approximately two hours. The Tribunal's reasons in relation to the Tribunal hearing are silent on any interpretation issue having been raised. The applicant asserts that he was given one week after the hearing to raise any further issues and that he wrote a letter complaining of the interpretation problems. Paragraphs 39 and 40 of the Tribunal reasons (CB 73) disclose that the Tribunal invited the applicant to comment on concerns raised at the hearing about inconsistencies and implausibilities in his claims. He was given approximately a week, until 16 February 2009 to respond.
Paragraph 42 of the reasons (CB 73) records that on 16 February 2009 the Tribunal received a letter which basically repeated his protection visa claims (CB 63 and 64). The letter is silent about any interpretation problems at the Tribunal hearing. When confronted with that letter the applicant asserted that he wrote a second letter which he gave to his “lawyer”, Mr Nizan, who faxed it to the Tribunal. There is no record of any second letter, although I note that a transmission record at the bottom of the letter (CB 63 and 64) indicates that it was sent by fax on that day. The court book indicates that if the applicant was assisted on the review by Mr Nizan, that was not disclosed to the Tribunal. There is no evidence of any interpretation problems having occurred at the Tribunal hearing or of the applicant making any complaint about any asserted problems. I reject that assertion.
In relation to the grounds of review in the application, I agree with and adopt for the purposes of this judgment, with necessary amendments, paragraphs 16 through to 25 of the Minister's written submissions.
First ground
The first ground of review asserts that the Tribunal denied the applicant procedural fairness by finding that his claims were implausible when such adverse conclusions “were not obviously open on the known material” and “without giving the applicant the opportunity to be heard in respect of those matters”. The ground lacks particulars and cannot succeed.
The adverse view that the Tribunal took of the applicant’s claims and evidence are findings of fact that are solely within the jurisdiction of the Tribunal to make. The court cannot review findings of fact. The basis for such conclusions is set out in the Tribunal’s reasons and was open to it on the evidence. These were matters for the Tribunal alone to assess as part of its fact-finding function.[1]
[1] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282
The ancillary assertion that the applicant was not given the opportunity to be heard in respect of the Tribunal’s adverse conclusions is misconceived and, in any event, has no factual or evidentiary foundation. The particulars of ‘information’ that the Tribunal is required by s.424A to give to the applicant in writing does not extend to its subjective appraisals of the evidence before it. ‘Information’ for the purposes of s.424A relates to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[2] The term has the same meaning for the purposes of s.424AA.[3] The information referred to by the Tribunal from the applicant’s protection visa application and his oral evidence or passport given at the Tribunal hearing is exempted from the operation of s.424A by ss.424A(3)(ba) and s.424A(3)(b) respectively. Given the nature of the relevant information and the effect of these sections, no breach of s.424A or s.424AA is established.
[2] SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) 81 ALJR 1190; (2007) 96 ALD 1; [2007] HCA 26 at [18]
[3] SZMCD v Minister for Immigration [2009] FCAFC 46 per Moore J at [2], per Tracey & Foster JJ at [72], [86], [91]
In any event, the applicant attended the hearing where the Tribunal raised the concerns it had with his evidence. For example, it referred him to inconsistencies in his evidence about living in Hyderabad [34] and when he claimed to have worked [35][4]. It also expressed that it had difficulty accepting his evidence that the loss of his Year 10 certificate would have prevented him from attempting to depart India before 2008 and raised concerns about the claims he mentioned for the first time at the hearing about moving to Madras and the men who showed up with knives and guns: CB 72, paragraph 36. The Tribunal decision record (which is the only available evidence of what occurred at the Tribunal hearing) demonstrates that the Tribunal did give the applicant an opportunity to respond to its concerns –purportedly in accordance with s.424AA of the Act. The applicant requested and was granted further time to respond to the Tribunal’s concerns in writing: CB 73, paragraph 40. The Tribunal also considered the applicant’s written response: CB 73, paragraph 42. The Tribunal probably exceeded its obligations under s.424AA. There is no legal consequence for purported compliance with s.424AA in circumstances where there is no duty otherwise imposed by s.424A.[5]
[4] CB 72
[5] SZMCD v Minister for Immigration op. cit., per Moore J at [2], per Tracey & Foster JJ at [92]
As the Tribunal raised with the applicant at the hearing the concerns it had with his evidence, it ensured that he was on notice of the determinative issues on the review. The Tribunal is not required to give an applicant a running commentary upon what it thinks about the evidence that is given.[6] Moreover, as the inconsistent and vague nature of the applicant’s evidence was also the basis for the delegate’s inability to be satisfied of his claims, no breach of s.425 as reasoned by the High Court in SZBEL can be established.[7] I reject the first ground of review.
Second ground
[6] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 48
[7] SZBEL v Minister for Immigration op. cit., at 42-44
The second ground of review seeks to assert that the applicant satisfies the four key elements of the Convention definition of a ‘refugee’ and that the Tribunal failed to consider this aspect. In substance, this ground invites the court to undertake a review of the merits of the Tribunal’s decision and its assessment of the credibility of the applicant’s factual claims but the court cannot engage in merits review or conduct a rehearing of the merits. The Tribunal clearly turned its mind to the correct question and applied the correct test. That the applicant is displeased with the conclusion to which the Tribunal came is not indicative of jurisdictional error.[8] This ground must fail.
Third ground
[8] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272; NADR v Minister for Immigration (2003) FCAFC 167 at [9]; NAAH v Minister for Immigration [2002] FCAFC 354
The third ground asserts that the Tribunal “failed to investigate” the applicant’s claims and as a result the decision was affected by actual bias. It is well established that it is for an applicant to make out their case and to place before the Tribunal such material as was necessary to persuade the Tribunal of their claims. If the Tribunal cannot be satisfied on the basis of the material presented that an applicant’s claims are genuine, it is under no obligation to undertake further inquiries or to verify or investigate the applicant’s claims, and has no duty to consider utilising such permissive statutory powers as it had which might enable it to investigate.[9]
[9] Minister for Immigration v SGLB (2004) 207 ALR 12 per Gleeson CJ at 1, 19, per Gummow and Hayne JJ at 33 & 43, per Callinan J at 124; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration (2002) 125 FCR 407 at [74]-[78]
Nor is there any evidence or material before the court to suggest that there is any basis to support an allegation of bias against the Tribunal member. The applicant has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proved.[10] In the absence of any evidence, such as a transcript of the Tribunal hearing, this ground cannot be established. The decision record indicates that the applicant was provided with an opportunity to give evidence and present arguments at the hearing. The material before the Court does not provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith. No inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[11] The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even if the Tribunal disbelieved every element of the applicant’s claim it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion. This ground has not been made out.[12]
Fourth ground
[10]Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J
[11] VFAB v Minister for Immigration (2003) 131 FCR 102; [2003] FCA 872 at [21] per Kenny J; SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 per Hill J at [3], per Tamberlin J at [10]
[12] SBBA v Minister for Immigration [2003] FCAFC 90 at [15]; Sun v Minister for Immigration (1997) 81 FCR 71 at 134
The fourth and final ground of the application asserts a breach of s.424. The breach is said to be established because the Tribunal at the hearing “invited the applicant to give information additional to that which the Tribunal had obtained” and the invitation did not comply with the requirements of s.424(3)(a) and s.424B because it failed to specify the way in which the additional information may be given and the period of time in which it was to be provided.
This ground is misconceived and confuses the Tribunal’s purported action under s.424AA (discussed above). It is incorrect to suggest that the Tribunal invited the applicant to provide additional information (so as to engage the operation of s.424). The applicant instead was given an opportunity to address the Tribunal’s concerns and to put forward any other matters in writing” (CB 75, paragraph 50). This ‘opportunity’ flowed from the Tribunal’s ostensible conduct in accordance with s.424AA (CB 73, paragraph 39) and the applicant’s subsequent request for time to address the Tribunal’s concerns in writing (CB 73, paragraph 40). Section 424 had no relevant application and there is no basis for this ground.
I find that the Tribunal decision is free from any jurisdictional error. I will order that the application be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order fixed in the sum of $4,000. That is significantly less than the scale amount in the Court Rules. The applicant continued to agitate his application for review of the Tribunal decision but did not make any submissions on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 June 2009
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