SZNKF v Minister for Immigration - [2009] FMCA 815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 815

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

Migration Act 1958 (Cth), ss.91R, 424, 424A, 424B, 425

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152

Applicant:

SZNKF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 792 of 2009

Judgment of:

Barnes FM

Hearing date:

4 August 2009

Delivered at:

Sydney

Delivered on:

2 September 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 792 of 2009

SZNKF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal dated 9 March 2009 affirming a decision of the 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. In September 2008 he lodged an application for a protection visa. The application was refused and he sought review by the Tribunal. As set out in a statement accompanying his protection visa application and as summarised by the Tribunal in its decision, the applicant claimed to fear persecution from Muslim extremists by reason of his Hindu faith and marriage to a Muslim woman. He claimed that he had a love affair with a woman from an orthodox Muslim family while at college, that he lived in the United Arab Emirates (UAE) from mid 1994 to early 2005 and that he married in June 2006. He claimed to have been attacked by Muslims in 1994 and kidnapped and attacked again in 2006. He also claimed that he was forced by his wife’s family to convert to Islam.
The applicant was invited to a Tribunal hearing on 20 February 2009. By letter of 28 January 2009 the Tribunal put to the applicant for comment information that would be the reason or part of the reason for affirming the decision under review under s.424A of the Migration Act 1958 (Cth) (the Act). The applicant was invited to give comments or respond to this information by 20 February 2009. In addition, by letter of the same date the Tribunal invited the applicant to provide additional information, consisting of full details of all his residences and employment prior to entry to Australia, by 20 February 2009.
By letter dated 5 January 2009 which, it is not disputed, must in fact have been sent after 2 February 2009 and bears a facsimile date “6-Feb-2009”, the applicant sought an “extension of time for [his] comments and hearing” in light of the death of his mother on 2 February 2009.
On 6 February 2009 the Tribunal wrote to the applicant. It referred to the request for postponement of the hearing received on 6 February 2009 and stated that the presiding member had agreed to the request and that the hearing had been rescheduled for 6 March 2009. The applicant attended the Tribunal hearing on 6 March 2009 and produced documents in support of his application. In its reasons for decision the Tribunal summarised in some detail the evidence of the applicant at the Tribunal hearing.
In its findings and reasons the Tribunal referred to medical reports the applicant had presented relating to his past treatment and present medication, but found that this did not suggest that his ability to give evidence and to participate in the hearing had been affected. The Tribunal was satisfied that the applicant had been given a genuine opportunity to attend the hearing and to present oral evidence.
In addition, to the extent that the applicant’s medical condition or the death of his mother had affected his ability to provide written comments, the Tribunal drew no adverse inferences from his failure to respond to the Tribunal’s s.424A invitation within the prescribed time.
The Tribunal found that the applicant was not a credible witness, that many aspects of his evidence were vague and that there were significant inconsistencies between his oral evidence and his written claims. However the Tribunal stated that to the extent that there were inconsistencies between his oral evidence to the Tribunal and to the delegate of the first respondent, and between his oral evidence to the Tribunal and the information contained in his business visa application or if there was any other information which could objectively be seen as being adverse to the applicant, it did not consider such inconsistencies or information to be a reason or part of the reason for affirming the decision under review and placed no reliance on these matters, except as stated thereafter in its reasons for decision.
The Tribunal set out its concerns with the applicant’s evidence in a number of respects. In particular, the Tribunal referred to inconsistencies and differences in the applicant’s oral and written evidence about his past employment and the limited and incorrect information in his protection visa application. The Tribunal was of the view that the applicant had intentionally provided inconsistent information about his past employment, deliberately seeking to mislead the decision maker.
The Tribunal also found the applicant’s evidence about his circumstances and the threats he claimed he had received after he returned to India from the UAE and before his marriage was confused and inconsistent. It set out its concerns in that respect and the applicant’s explanations, but concluded that the applicant had been untruthful about this aspect of his evidence, in particular about a claim that “he and his family had been receiving threats and that he had to avoid harm by being careful and moving at night.”
The Tribunal also had regard to specified inconsistencies in the applicant’s oral and written claims about what occurred and where he and his wife lived after their marriage. It found in light of his inconsistent claims about whether he moved away thereafter or remained living with his wife, that he had been untruthful with respect to these claims, including a claim that he was attacked in August 1996.
The Tribunal also found that the applicant’s evidence about his claimed conversion to Islam “appeared confused and vague” and that it was “not suggestive of his own participation in the events”.
Moreover, the Tribunal found that the applicant had not been able to provide a meaningful explanation as to why he had not been attacked since 1997, notwithstanding that he said that those who wanted to harm him knew where he lived. The Tribunal found that his explanations were vague and inconsistent and did not accept that he was continuously threatened but not attacked because he was “careful”. It found his later claim that he moved from place to place to be inconsistent with his claim he was receiving threats. The Tribunal found that the applicant had been untruthful in his evidence in this regard.
The Tribunal also had regard to the fact that the applicant remained in India until 2008 “despite the continuous persecution he claims to have suffered.” It referred to the fact that he claimed he travelled to the UAE in 1994 to avoid harassment, indicating that even at that time he claimed to have experienced such significant level of harassment as to wish to depart the country. However in his oral evidence the applicant had stated that he had not made any other applications for visas before 2008 because he did not want to leave his family. The Tribunal found that when questioned in this respect the applicant’s evidence was confused and that he was not able to explain coherently why his family’s attempt to effect his departure was successful in 2008, but not at any other time. Again the Tribunal found the applicant had been untruthful with respect to this aspect of his claims. It found that neither the applicant nor his family had made any attempts to enable him to depart India before 2008 after his return from the UAE. It found that the applicant chose to remain in India and that he did not have a genuine fear of persecution while in India.
The Tribunal expressed the view that a person who was subject to the level of intimidation and threats suggested by the applicant would have a genuine fear of such harassment, but that as it had found that the applicant did not have a genuine fear of persecution, it rejected his claims that he was threatened or harassed or intimidated by Muslim groups, terrorists gangs, individuals or anybody else, or that he was physically harmed or that he otherwise was a target because of his religion.
The Tribunal found that the applicant lacked credibility and that this and its finding that he did not have a genuine fear of persecution led it to reject his claims that he was subjected to any serious harm in the past, or that he would be subjected to such harm in the future if he returned to India. In particular the Tribunal rejected the applicant’s claims that he was physically assaulted on several occasions, harmed and required medical treatment as a result, or that he or his family had continuously received threats and warnings by phone or in person. Nor did the Tribunal accept that the applicant or his family were forced to leave their home to avoid harm, that he had been forced to move to another area and to different places of employment to avoid harm. The Tribunal did not accept that the applicant was forced to convert to Islam or that he did so, or that he had ever been kidnapped and harmed as claimed. Hence the Tribunal did not accept that the applicant had reported such matters to the police or that the police had refused to act and suggested to the applicant that he not continue his relationship. The Tribunal did not accept that the applicant’s wife or family had received threats or were otherwise harmed, or that his wife had required medical treatment as a result of the harm he claimed she had suffered.
The Tribunal accepted, on the basis of documents presented by the applicant, that he was a Hindu married to a Muslim and that he had two children. The Tribunal was also prepared to accept that some members of the applicant’s family, his wife’s family and the community may have been opposed to the marriage, that the applicant may have experienced family disapproval and some alienation from his family and community as a result of the marriage and that he may continue to experience this in the future. However the Tribunal did not consider that such alienation or opposition amounted to serious harm within the meaning of s.91R(2) of the Act.
The Tribunal addressed medical reports provided by the applicant. It accepted that he had suffered from a medical condition in the past and had received treatment, but pointed out that the reports did not indicate that the condition developed as a result of Convention-related harm suffered by the applicant. It observed that while some of these reports referred to an attack on the applicant, they offered neither the circumstances nor the motivations for the attacks. The Tribunal did not accept the medical reports as supportive of the applicant’s claims or that it was the applicant’s medical condition that had caused him to provide vague and inconsistent evidence. The Tribunal gave such documents no weight.
The Tribunal also referred to country information and the “First Information Report” presented by the applicant in relation to another incident, but found that these did not confirm his claim that he personally had experienced persecution as claimed.
The applicant also claimed that he was forced to borrow money and that if he did not repay it the lender would hire thugs to harm him. The Tribunal was of the view that if the applicant had borrowed money it was not for any reason arising from his marriage or any other Convention reason and thus any harm he feared as a result of non-payment was not Convention related.
The Tribunal referred to the fact that the applicant claimed that he belonged to the Nair caste, but that he had not suggested that he feared persecution as a result. It found that he did not have a well-founded fear of persecution as a result of his caste.
The Tribunal concluded that having considered the applicant’s claims singularly and cumulatively, the applicant did not have a well-founded fear of persecution and there was no real chance that he would face persecution for a Convention reason if he were to return to India now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 6 April 2009. He relies on an amended application filed on 17 June 2009.
It became apparent in the hearing that the solicitor for the first respondent had not received a copy of the amended application. The respondent’s written submissions addressed the grounds in the original application. The grounds in the amended application were addressed in oral submissions. Accordingly, I have considered all of the grounds raised by the applicant in these proceedings.
The first ground in the original application was that it was open to the Tribunal to find that the applicant was a refugee and that it erred in failing to properly give the benefit of the doubt to an applicant in circumstances where it entertained the possibility that his claims were plausible.
However, as the first respondent contended, the Tribunal found that the applicant was not a credible witness on the basis of his vague and inconsistent evidence. It did not either expressly or implicitly indicate any doubt about its rejection of the applicant’s claims. In such circumstances the Tribunal was not required to taken into account the chance that the events claimed by the applicant had occurred when determining whether there was a well-founded fear of future persecution. As in Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ “[g]iven its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong” (and see also Abebe v The Commonwealth of Australia (1999) 197 CLR 510). The conclusions reached by the Tribunal were open to it for the reasons given and no jurisdictional error is established on this basis.
The second ground in the original application is that the Tribunal denied the applicant procedural fairness by reaching adverse conclusions that his claims were implausible. It was contended that these conclusions were not obviously open on the known material and that the applicant should have been given the opportunity to be heard in response to these matters.
However, contrary to the applicant’s contentions, the material before the Court discloses that the Tribunal gave the applicant an opportunity to give evidence and present arguments in support of his claims at the Tribunal hearing in accordance with its obligations under s.425 of the Act. It also invited him to provide comment and produce documents in response to the Tribunal’s concerns in accordance with ss.424A and 424 of the Act.
Credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]). The Tribunal’s factual findings were open to it on the material before it for the reasons that it gave. This generally expressed claim does not establish jurisdictional error.
The third ground in the application is that the Tribunal did not consider that the applicant satisfied the four key elements of the Convention definition and hence committed factual and legal error. To the extent that the applicant seeks merits review, merits review is not available in this Court. The Tribunal considered whether the applicant met the Convention definition.
Ground four is that the Tribunal failed to investigate the applicant’s claims, specifically the ground of persecution in India for being married to a Muslim girl. To the extent that this is a contention that the Tribunal was obliged to conduct further investigations, this is not a case in which there was such an obligation on the Tribunal. It was for the applicant to advance evidence in support of his claims and for the Tribunal to decide whether his claims were made out on the evidence before it (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 187). The Tribunal accepted that the applicant was married to a Muslim girl and considered, but did not accept, his claims to have experienced or to fear persecution for a Convention reason on that basis.
It was also contended in ground four that the decision was affected by actual bias on this basis. However the evidence before the Court is not such as to establish either actual or apprehended bias. On the contrary it is apparent that the Tribunal considered all of the applicant’s claims and evidence and put the applicant on notice of determinative issues. Ground four is not made out.
Ground five is that the Tribunal’s failure to send “further communication to substantiate my claims of refugee status” involved unfairness. This ground lacks clarity but, in any event, there was no obligation on the Tribunal to send further communications to the applicant or to give him further opportunities to substantiate his claims of refugee status.
The first ground in the amended application is that the Tribunal failed to comply with s.424 of the Act. Particulars to this ground are that “[t]he Tribunal asked question (sic) invited the applicant to give information additional to that which the Tribunal had obtained”. It was contended that the invitation was not given in accordance with ss.424(3)(a) and 424B of the Act in that it did not specify the way in which the additional information may be given or the period within which the information was to be given.
It is apparent that this ground takes issue with the Tribunal’s letter of 28 January 2009 which asked the applicant to provide full details of all his residences and employment prior to his entry to Australia. Contrary to the contention in the amended application, that letter both specified the way in which the additional information was to be given and the period within which it was to be given. The letter of 28 January 2009 is headed “Invitation to Provide Information in Writing” and invited the applicant to provide, “full details of all your residences (including dates and addresses) prior to your entry to Australia” and “full details of all your employment (including periods of employment) prior to entry in Australia”. The letter stated that this additional information should be received at the Tribunal by 20 February 2009 and if written in a language other than English, it must be accompanied by an English translation from an accredited translator. The Tribunal went on to refer to the possibility of an extension of time and also advised the applicant that if the Tribunal did not receive the additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information and that the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
Hence the invitation specified the way in which the information was to be given (in writing) and the time within which this was to occur as specified in s.424B of the Act. Insofar as the requirement in s.424(3)(a) that an invitation be given to a person by one of the methods specified in s.441A of the Act is in issue, in this case there is no suggestion that the letter of 28 January 2009 was not dispatched by prepaid post to the last (and indeed the only) address provided by the applicant in connection with the review. The applicant did not take issue with the time of sending of this letter or indeed with receipt of this letter. His generally expressed contentions do not establish jurisdictional error in relation to the letter of 28 January 2009.

Insofar as it was contended that the Tribunal relied on the applicant’s failure to provide information in writing as requested in the letter of 28 January 2009, first it is apparent that the Tribunal received the applicant’s request for an extension of time in relation to “comments” and the hearing. It granted an adjournment of the hearing, notwithstanding the absence of a reply to the request for information. Hence the applicant was not deprived of the opportunity to attend a Tribunal hearing, during which he was given a further opportunity to explain to the Tribunal why he had not provided details of his past residences and employment. It has not been established that the Tribunal relied on the absence of a response to the s.424 letter in a manner constituting jurisdictional error.
The applicant had also sought an extension of time to provide comments on information put to him in the Tribunal’s s.424A letter. The Tribunal expressly stated in its findings and reasons that it drew no adverse inference from his failure to respond to that invitation within the prescribed time. It was also of the view that the applicant had been given a genuine opportunity to present oral evidence at the hearing and did not rely on the absence of a written response. This ground is not made out.
The next ground in the amended application is that the Tribunal member “failed to honour his undertaking”. The applicant referred to the Tribunal’s obligation to put information to an applicant in s.424A of the Act and contended that the Tribunal “ignore (sic) its undertaking to give [him] an opportunity to make written submission about the inconsistencies in [his] evidence and lacked credibility”. On this basis it was submitted that the Tribunal erred by denying the applicant procedural fairness. Insofar as this ground takes issue with the opportunity afforded to the applicant to respond to the s.424A letter, as indicated above the Tribunal drew no adverse inference from the applicant’s failure to respond to the s.424A invitation within the prescribed time. There is however no evidence before the Court that the Tribunal gave any undertaking in the hearing to give the applicant a further opportunity to make written submissions in relation to inconsistencies in his evidence and his lack of credibility. It is apparent from the Tribunal’s account of the hearing that the applicant was given the opportunity in the course of the hearing to address matters of concern to the Tribunal including about his credibility in various respects, inconsistencies in his evidence and his failure to leave India until 2008. No lack of procedural fairness, let alone a lack of procedural fairness consisting of a failure to put dispositive issues to the applicant under s.425 (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152) or a failure to put to the applicant for comment information that would be the reason or a part of the reason for affirming the decision under review under s.424A is established on the material before the Court.
The applicant also appeared to take issue with the length of the adjournment of the hearing.The Tribunal considered his generally expressed application for adjournment based on the death of his mother and granted an adjournment. The fact that the applicant now says that he would have expected a longer adjournment does not mean that the Tribunal fell into jurisdictional error in proceeding as it did. I also note that it specifically addressed the applicant’s mental fitness in its decision in a manner that does not suggest any jurisdictional error.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application should be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 2 September 2009